Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014] eKLR, Petition No. 266 of 2013 - Kenya
Background
This case relates to the rights of intersex children, that is children born with reproductive or sexual anatomy that doesn’t fit the typical definitions of male or female, to be legally recognized as Kenyan citizens. The case was filed by a mother (the petitioner) on behalf of her child and other intersex persons. The petitioner alleged that the form required for the issuance of a birth certificate did not give her child legal recognition and thus discriminated against her child because the form called for the selection of a gender as either male or female and her child did not fit in either category. She requested that the Court order that a third category, “intersexual”, be included for purposes of gender designation on the form for the issuance of a birth certificate. The petitioner also challenged the lack of set guidelines and regulations for the performance of corrective surgery on intersex persons as well as the lack of data collection and retention by the Kenyan government relating to intersex persons in Kenya. She requested that the court promulgate guidelines relating to surgery on intersex persons and that the government collect data relating to intersex persons.
Reasoning
Regarding the petitioner’s discrimination claim, the Court reviewed the legislation providing for the registration of birth in Kenya—the Births and Deaths Registration Act and the Interpretation and General Provisions Act Cap 2 (Laws of Kenya)—to determine whether these legislation allowed a broad interpretation of the term “sex” so as to include “intersexual” as a third category of gender on the form for the issuance of a birth certificate. The Court found that neither the Births and Deaths Registration Act nor the Interpretation and General Provisions Act Cap 2 (Laws of Kenya) defined the term “sex,” but that the former Act provided that the sex of a child was either male or female. The Court also found that although the Constitution did not define “sex,” it prohibited discrimination based on sex. The Court concluded that intersex persons, including children, were entitled to all rights under the Constitution. However, the Court refused to create a third category of sex called “intersexual” on the basis that this issue had to be addressed by the legislator and, thus, was beyond the Court’s mandate (i.e., to interpret the law as written). Moreover, the Court held that the petitioner failed to submit any evidence of actual discrimination (thereby impliedly rejecting the petitioner’s contention that the absence of a category on the form for “intersexual” persons per se constituted discrimination) and ruled that the rights of the petitioner’s child had not been violated in any way.
The Court found that there was a need for guidelines, rules and regulations for surgery on intersex persons and a need for the government to collect data on intersex persons, but that it was beyond the Court’s mandate for the Court itself to issue such guidelines or to regulate the collection of data.
Remedy
The Court directed the Kenyan government (i) to submit to parliament an appropriate legal framework governing issues relating to intersex persons, including a statute regulating the place of intersex persons as a sex category and guidelines and regulations for corrective surgery for intersex persons, and (ii) to consider the issue of collecting data relating to intersex children and persons and to submit to the Court within 90 days of the judgment the name of the agency in charge of the collection and retention of data on intersex persons.
Role of children
The first petitioner “Baby A” was represented by the mother.
Enforcement and other outcomes
The case helped to trigger reform on the rights of intersex people in Kenya. In 2014, Persons Deprived of Liberty Act was enacted and defined “intersex” within Kenyan legislation for the first time. The Attorney General formed the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in 2017 which reported in December 2018, making recommendations for law reform to recognise and protect the rights of intersex people, including specific recommendations regarding intersex children. In 2019, Kenya became the first country in Africa to include data on intersex people in its census.
Significance of the case from a CRSL perspective
According to a write up about the case by CRIN in 2015, Baby A’s mother sought assistance from CRADLE, a child rights organisation. CRADLE supported Baby A’s mother so that she would see the case through and not abandon it due to embarrassment.
The organisation also brought together other legal experts to contribute to the arguments, and a Kenyan human rights lawyer, John Chigiti, agreed to argue the case probono. All of these features indicate that this case is an example of CRSL.
The case also dealt with key issues affecting gender non-conforming individuals, as Chigiti was clear about the need to separate gender from sexuality, and this was clear in the argumentation. However, the focus of the case was on Baby A and the impediments to birth registration of Baby A and other similarly situated children.
The impact of this case has been considerable, in the sense that law and policy reforms aimed at advancing children’s rights have been clear outcomes. The significance of the case is naturally limited by the fact the number of children affected is small, and this curtails the reach of the case.
Country
Kenya
Forum and date of decision
The High Court of Kenya at Nairobi, Constitutional and Human Rights Division,
December 5, 2014
CRC provisions and other international law provisions/sources
United Nations Convention on the Rights of the Child, Article 7(1)
African Charter on the Rights and Welfare of the Child, Article 9(1), 9(2) and 9(3)
Domestic law provisions
Constitution of Kenya, Article 20(2)(b), 27(4), 53
Children Act, Section 11
Registration of Births and Deaths Act (Cap 149 Laws of Kenya), Section 2 and 7(1) and Form No. 1 (The Register of Births, in the Schedule).
Related information
For the petitioner:
Baby “A” (Suing through her mother, E.A.)
John Chigiti
The Cradle-the-Children Foundation
Swiss Cottages (Apartment no. 1), Ring Road Kileleshwa off Riverside drive Nairobi P.O BOX 10101 - 00100 Kenya
For the Respondent:
Sheria House, Harambee Avenue, Nairobi, Kenya
P.O. Box 40112-00100, Nairobi, Kenya
Hospital Rd, Nairobi, Kenya
P.O Box 20723-00202, Nairobi, Kenya
The Registrar of Births and Deaths
Hass Plaza 4th Floor, Lower Hill Road, Nairobi, Kenya
P.O Box 49179- 00100, Nairobi, Kenya
For interested parties:
Kenya National Commission on Human Rights
CVS Plaza 1st Floor, Kasuku Lane, Off Lenana Road, Nairobi, Kenya
P.O. Box: 74359-00200 Nairobi, Kenya
National Gender and Equality Commission
1st Floor, Solution Tech Place, 5 Longonot Rd, Upper Hill, Nairobi, Kenya
P.O.Box 27512-00506, Nairobi, Kenya
Kenya Christian Professionals Forum Ltd.
5th Floor. New Waumini House, Nairobi, Kenya
P. O Box 14942 – 00800, Nairobi, Kenya
Amicus curiae:
Gitanga Road opp. Valley Arcade Shopping Center, Nairobi, Kenya
P.O Box 41079-00100, Nairobi, Kenya
Case documents
Secondary documents
Victoria Miyandazi, Equality in Kenya’s 2010 Constitution Understanding the Competing and Interrelated Concept (Hart Publishing 2021)
Koe Kariro ‘An Analysis of the Legal Rights of Intersex People in Kenya’ (Bachelor of Laws Degree Dissertation, Strathmore University Law School 2018)
Kenya Human Rights Commission & East Africa Trans Health and Advocacy Network ‘The Human Rights Situation, Case Law, and Research on Protections on Grounds of Sexual Orientation, Gender Identity, and Expression in the Republic of Kenya’ (Submitted to the Office of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, June 25 2018), accessed 15 December 2021
BBC News ‘Kenya Census to Include Male, Female and Intersex Citizens’ (26 July 2019), accessed 15 December 2021
Office of the Attorney General and Department of Justice of Kenya, Report of the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya, December 2018
CRIN, Baby A and the Question Mark, August 2015
