Katiba at 15: Progress and Future for Kenya’s ITGNC Rights
By Lolyne Ongeri
When Kenya adopted its new Constitution in 2010, the country turned a page in its history. For Transgender and Gender Diverse Persons, it was a moment filled with hope, a promise that dignity, equality, and protection under the law truly belonged to all of us. Although it does not explicitly mention sexual orientation or gender identity, Article 27 bans discrimination on grounds including race, sex, gender or other status, while Article 28 protects human dignity, for ALL Kenyans.
Health and Policy Reforms
Kenya has made significant strides in recognizing and addressing the health needs of transgender and gender-diverse communities through national frameworks and guidelines. The Kenya AIDS Strategic Framework (KASF) has increasingly highlighted the importance of reaching key populations, including trans persons, in HIV prevention and treatment. The Ministry of Health’s National Size Estimates for Transgender People generated crucial data to guide policy, while NASCOP’s National Trans HIV and STI Implementation Guidance, developed in collaboration with trans communities and partners, provided a tailored roadmap for health programs. Together, these initiatives represent progress toward fulfilling the Constitution’s promise of the right to health. Still, political will, resources, and accountability remain vital if these commitments are to translate into real, equitable access for trans and intersex persons.
Legal Recognition
Over the past 15 years advocates have pushed this promise through the courts and policy reforms Kenya’s journey toward legal recognition of intersex persons began in 2011, setting important precedents: in R.M. v. Attorney General (2010) a High Court found that holding an intersex prisoner in a men’s ward was cruel and degrading, violating her rights, and awarded damages though it stopped short of recognizing intersex people as a legal category. In Republic v. KNEC (2014), the High Court ordered the Kenya National Examinations Council (KNEC) to amend a certificate for a transgender woman to reflect her chosen name and gender. In 2014, the Baby A vs. The Attorney General case went further by affirming that intersex persons exist beyond the male/female binary, ordering a birth certificate for Baby A, and directing the state to develop a legal framework for their protection. This momentum led to the formation of a national Taskforce in 2017 to gather data, review laws, and recommend reforms, culminating in Kenya’s 2019 census, which for the first time in Africa and indeed the world officially counted intersex persons.
Policy Milestones and Political Representation
Building on these court rulings, Kenya has seen some notable policy advances, especially for intersex recognition, though many key laws remain pending. In August 2022, the new Children’s Act (2022) took effect, becoming the first Kenyan law to explicitly protect intersex children. It recognized intersex as a valid identity with an “I” marker and guaranteed that intersex children must be treated with dignity and given equal access to services. The Act also outlawed non‑consensual ‘sex‑normalizing’ surgeries on intersex infants, requiring medical procedures only with a doctor’s recommendation. This, of course, for us is a major milestone, as it aligns with the constitution’s guarantee of dignity and non-discrimination.
In May 2022, Kwamboka Kibagendi became the first known intersex person in Kenya to run for an elective seat. Kibagendi was nominated by the United Democratic Alliance (UDA) to contest the Mukuru Kwa Njenga Member of County Assembly (MCA) seat. Likewise, in February 2022, Dr Dennis Nyongesa Wamalwa Ph.D, who is intersex, was approved by Parliament to become a Commissioner at the Kenya National Commission on Human Rights (KNCHR). This marked the first time a person of the third gender held such a high-ranking state human rights office.
In October 2024, the government introduced a new Births and Deaths Registration rule (Legal Notice 153 of 2024) that, for the first time, gives Kenyan parents an option to register a newborn as Intersex on official forms. The sample birth notification now lists three check boxes (Male, Female, Intersex). The community and many civil rights organizations , including the Kenya National Commission on Human Rights (KNCHR), hailed this as a historic milestone. In KNCHR’s view, Kenya has officially granted legal recognition to intersex people by amending its civil registry. In the 2019 census, Kenya also counted intersex persons for the first time, about 1,524 respondents- the first African country to do so.
Recent Judicial Breakthroughs
More recently, Kenya’s courts have broken new ground. In August 2025, the High Court in Eldoret ruled in favour of S.C., a transgender woman who had been strip-searched and humiliated in detention. Justice Nyakundi held that S.C.’s constitutional rights to dignity, privacy and freedom from inhuman and degrading treatment had been violated. The court awarded damages and, critically, directed Parliament to legislate explicitly for transgender protections. This is a turning point for our community, as for the first time in Kenya, and indeed in Africa, the court instructed the state to create protective legislative reforms specifically for trans citizens.
However, comprehensive laws are still awaited. The Intersex Persons Bill 2024 is under debate in Parliament. Drafted by the Intersex Persons Implementation Coordination Committee (IPICC), it would provide for the stringent legal recognition, protection and safeguarding of intersex persons’ human rights. Its provisions would ban harmful medical interventions on intersex infants and ensure intersex people can change sex markers and access education, health and employment on equal terms. But the Bill is not yet law. Pending legislation could fill these gaps.
Human rights organizations, activists, and the ITGNC community have welcomed these advances while urging much more action. Grassroots groups point to persistent problems. Jinsiangu Kenya, the leading ITGNC organization in Kenya, issues regular situation reports on violence and discrimination. We note that transgender, Intersex and gender-nonconforming persons in Kenya continue to face blatant human rights violations entrenched in discriminatory laws and policies. Between 2020 and mid-2021, Jinsiangu documented dozens of assaults on its members -including over 100 transgender people and nearly 30 intersex/GNC individuals, although the Constitution requires all Kenyans to be protected from violence and have fair and equal access to justice.
What’s Still Missing? The Road Ahead
Despite these steps, we believe Kenya still has a long way to go to fulfil the Constitution’s promise for Kenyans, including ITGNC communities. Key gaps include:
Explicit legal gender recognition- Currently, no Kenyan law (or implementing regulation) allows a transgender person to change the sex marker on identity documents by self-identification. The Eldoret court’s call for a Transgender Persons Protection Act signals the need, but until Parliament acts, trans Kenyans will often face obstacles in accessing IDs, passports, or marriage registration in their lived gender.
Non-discrimination laws- The Constitution forbids bias by sex, but Kenya has yet to enact a standalone anti-discrimination law listing gender identity or sexual orientation. Advocates argue the Intersex Bill or a separate Gender Identity Bill should explicitly prohibit denying someone a job, service or shelter because they are transgender or intersex. Without that, police and employers have no clear obligation under Kenyan law to protect ITGNC people.
Healthcare access- There are no national standards for gender-affirming care. Hormone therapy or surgeries for trans people are unregulated and largely unavailable in public hospitals. Legal experts urge the Health Ministry to issue guidelines (as many countries have) on trans health care. The Children’s Act’s ban on infant surgeries is a start for intersex medical issues, but there is no parallel framework for adult trans care.
Public education and political will- Social stigma runs high. Advocates call for school and community programs to teach respect for diversity. Political leaders, particularly county governors and MPs, must be persuaded to back, not block, ITGNC rights.
In short, we stress that courts can only do so much. Lasting change will require Parliament to pass clear laws on transgender rights, the Intersex Persons Bill, health care standards, etc. and the government to implement policies nationwide. Only then can Kenya make the Constitution’s vision of equality real for intersex, trans and gender-diverse Kenyans.
Kenya in the African Context
Kenya has avoided the extreme criminalization seen in some of its neighbours. Our courts have read the Constitution broadly to protect gender minorities, and our judiciary has quietly reformed practices. For instance, prosecutors now use the ‘I’ sex marker for intersex defendants and the human rights commission champions equality.
Only a few African constitutions explicitly list gender identity or provide for protection. The Alteration of Sex Description and Sex Status Act in South Africa allows people to apply to have their sex status altered in the population registry, and consequently to receive identity documents and passports indicating their gender identity. The law requires the person to have undergone medical or surgical treatment, such as hormone replacement therapy.
Compared to much of Africa, Kenya’s Constitution has provided one of the strongest frameworks for equality and dignity. Courts have relied on it to affirm the rights of intersex, transgender, and gender non-conforming (ITGNC) people, while progressive policies, such as recognition in birth certificates and protections in the Children’s Act, have set historic precedents on the continent. These steps show Kenya to be a regional leader in inclusive rights. As the 2010 Constitution marks 15 years, its vision of dignity and justice for every person is steadily being realized, and the task ahead is to build on this foundation through legislation and implementation that fully honours its promise.
