Court orders state to modify prisons and police cells for intersex persons
Justice Reuben Nyakundi issued the directive while delivering judgment in a case involving a Kenyan athlete, now identifying as a woman, who suffered degrading treatment at the hands of police
The High Court has ruled that the government must urgently allocate funds to modify police cells and prisons to accommodate intersex individuals who may come into conflict with the law.
Justice Reuben Nyakundi issued the directive while delivering judgment in a case involving a Kenyan athlete, now identifying as a woman, who suffered degrading treatment at the hands of police officers and hospital staff.
The judge ordered the Attorney General to spearhead amendments to Part Six of the Prisons Act to provide for the confinement of intersex persons.
He further directed the government to compensate the athlete, referred to in court papers as S.C., with Sh600,000 for detaining her in a male cell and charging her with impersonating a woman.
Moi Teaching and Referral Hospital (MTRH) was also fined Sh400,000 for violating her privacy after doctors forced her to strip in order to verify her gender.
“There is a compelling urgency for the state to make physical and structural provisions at police stations and prison facilities for ‘third gender’ individuals in conflict with the law, to guarantee their constitutional rights,” Justice Nyakundi stated.
S.C., born in Uasin Gishu in 1990, testified that though she was assigned male at birth, she identified as female from the age of five. While her immediate family accepted her, extended relatives considered her abnormal.
Her troubles with the State began in 2009 after applying for a national identity card. Despite her female identity, the Registrar of Persons listed her as male. Later, she was arrested for impersonation after an employer was told she was “actually male.” She spent a week in a male cell before her family secured her release.
In June 2019, she was again arrested and subjected to humiliating treatment at Eldoret Women’s Prison and MTRH, where she was stripped, slapped, and mocked by officers. Medics claimed they could not determine her gender but later testified in court.
The Attorney General and MTRH denied wrongdoing, while police claimed she impersonated a woman to compete in athletics. However, the case highlighted glaring legal and structural gaps in Kenya’s protection of intersex and transgender persons.
