NAIROBI, Kenya — The High Court has ruled that transgender and intersex Kenyans may apply for changes to sex or gender markers on official identity documents, in a landmark judgment that places constitutional rights at the centre of civil registration processes.
Justice Bahati Mwamuye held that state agencies cannot automatically reject such applications and must instead assess them individually in line with constitutional principles of dignity, equality, and fair administrative action.
The ruling was delivered virtually on Wednesday.
Constitutional protections cited
In his judgment, Justice Mwamuye said the Births and Deaths Registration Act and the Registration of Persons Act do not explicitly prohibit consideration of applications seeking gender marker changes on documents such as birth certificates, national IDs, and passports.
He ruled that administrative silence or gaps in legislation cannot be used to deny constitutional rights.
“Constitutional rights cannot be limited by administrative convenience,” the judge stated.
The court further emphasised that constitutional interpretation must prioritise protection of rights, not procedural rigidity.
Individual assessment required
The judge ordered relevant government agencies, including the Principal Registrar, National Registration Bureau, and passport authorities, to receive and determine such applications within 60 days.
Each application must be assessed on its own merits and handled in a manner that is fair, reasonable, and non-discriminatory.
The court said decisions must comply with constitutional rights to equality, dignity, privacy, and fair administrative action.
Agencies directed to act
Justice Mwamuye quashed previous blanket refusals to process gender marker change applications, stating that such decisions violated constitutional protections.
He directed state agencies to reconsider pending applications and ensure compliance with the ruling going forward.
The court stressed that it was not creating new law but ensuring existing administrative powers are exercised within constitutional limits.
“The court’s mandate is confined to determining whether administrative acts are consistent with the Constitution,” he noted.
Fair procedure emphasized
The ruling also warned against dismissing constitutional claims on technical grounds, stating that procedural rules must not block substantive justice.
Justice Mwamuye said constitutional litigation must be approached in a manner that vindicates rights where violations are shown.
The court added that until Parliament develops a clearer legal framework, all applications must be processed individually and in line with constitutional standards.
Public interest case
Given its broader constitutional implications, the court directed each party to bear its own costs.
The judgment is expected to influence how civil registration authorities handle identity documentation issues involving transgender and intersex persons in Kenya, potentially setting a precedent for future administrative reforms.
