Original Article: https://www.washingtonblade.com/2025/09/02/kenyan-judge-rules-government-must-legally-recognize-transgender-people/

A Kenyan judge has directed the government to legally recognize transgender people and to guarantee their constitutional rights are protected.

Justice Reuben Nyakundi of the Eldoret High Court in western Kenya in his Aug. 20 judgment holds trans people have the right to determine their “self-identified gender” and the government’s legal system should recognize it.

Nyakundi made the directive after a years-long case of a trans athlete and government agencies over an unwarranted arrest, detention, and forced medical examination to determine her gender in 2019.

Government officials sued the director of Public Prosecutions, attorney general, commissioner general of prisons, and the Moi Teaching and Referral Hospital, which conducted the medical examination following her arrest in Eldoret. The petitioner, only identified as S.C. in the case, was arrested at the same health facility for allegedly impersonating a woman. 

“That it is proposed the State consider undertaking appropriate legislative measures to address the rights and protections of individuals within its borders, in line with Article 27(4) of the constitution, which prohibits discrimination on any grounds, including race, sex, social origin, gender, birth, or other status,”Nyakundi ruled. “In this regard, the enactment of a Transgender Protection Rights Act is recommended as a potential mechanism to ensure equal protection and recognition for transgender persons.” 

The 34-year-old plaintiff, who is also a board member of Jinsiangu, a local trans rights organization, (“My gender” in Swahili), told the court about the mistreatment to which she was subjected while in custody and demanded compensation for the violation of her rights. 

For instance, S.C., who said she realized she was a woman when she was 5-years-old, told the court that police officers forced her to remove her clothes when she was in their custody and ridiculed her for “pretending” to be a woman after they saw male genitals.

She was transferred to a men’s ward before being escorted to her home.

S.C. said officers ransacked it in search of doping drugs they said she used while mocking her female clothes. The plaintiff also stated officers repeatedly slapped her to coerce her to produce her birth certificates and national identity cards. She described the experience as “humiliating and traumatizing.” 

The plaintiff also noted that while in the men’s ward, inmates abused and slapped her while some attempted to remove her clothes. They backed off when she screamed to attract officers’ attention before they transferred her to an isolated hallway for her safety.

Nyakundi in his ruling awarded her $10,000 in damages over violation of her privacy and dignity. The court also directed the government to undertake policy reforms to protect the rights of detained trans people in prisons.

“That a declaration be and is hereby made that there is a compelling sense of urgency for the state in the interim to make provision of the physical and structural facilities at the police stations and the prison facilities for these ‘third gender’ who may be in conflict with the law because of their gender identity with a view to guarantee their constitutional rights as envisioned in this judgment,” Nyakundi stated. 

He further directed parliament to enact the law that protects and recognizes trans people while also directing the proposed Intersex Persons Bill 2024 be another alternative to identify the rights of the trans community in the country. Intersex people in Kenya are legally recognized as a third gender with an “I” marker, and the community has an intersex representative in the country’s human rights body to champion their interests.

Transgender Education and Advocacy, Jinsiangu, Amka Africa Justice Initiative, and the Kenya Human Rights Commission are among the human rights NGOs that represented S.C. in the case.

Jinsiangu, which works closely with the intersex group, welcomed the decision as one of the “landmark” rulings marking a growing judicial recognition of trans rights in Kenya’s constitutional framework.  

“This is the first time a Kenyan court has explicitly ordered the state to create legislation on transgender rights, and a first in the African continent,” Jinsiangu said in a statement.  “If implemented, it could address decades of legal invisibility and discrimination faced by transgender persons by establishing clear legal recognition of gender identity, protection against discrimination in employment, housing, healthcare, and education, and access to public services without bias or harassment.”

The trans rights group has committed to monitoring the state’s compliance with the ruling to ensure the legal framework to protect the group is put in place.  

“We commit to working hand-in-hand with lawmakers, civil society, and the public to ensure the legislation is inclusive, evidence-based, and enforceable,” Jinsiangu affirmed.