STATEMENT: The Urgent Need for Legislation Protecting Transgender and Intersex persons in Kenya
Jinsiangu Kenya welcomes and celebrates the judgement delivered by Hon Justice Bahati Mwamuye MBS of the Milimani High Court on May 20, 2026 in Petition 27 of 2020. This ruling represents a defining moment in the constitutional history of Kenya and indeed the African continent. The court has unequivocally held that refusal by state organs to alter sex and gender markers in official documents such as birth certificates, national identity cards and passports of transgender persons, following lawful name changes through a Deed Poll, and in the presence of medical evidence of gender transition, constitutes a violation of rights guaranteed Articles 27, 28, 29, 31, 33 and 47 of the constitution of Kenya 2010.
The court correctly grounded its analysis in the foundational principle that rights, under the Bill of Rights belong to every individual by virtue of their humanity, not by grace of the state or convenience of existing administrative framework. Justice Mwamuye categorically stated that ‘The Petitioners are individuals before this Court. They are citizens entitled to the full protection of the Constitution. Their gender identity neither diminishes nor conditions their constitutional entitlements. On the contrary, it is precisely in circumstances of legal and social vulnerability that constitutional protection is most necessary.’
This ruling builds upon growing jurisprudence of transgender rights to legal recognition. In S.C v. DPP and three others, the Eldoret High Court held that the arrest, detention and non-consensual medical examination of transgender athlete S.C violated her right to dignity, privacy and equal protection under the law.The court ordered Kes 1 million in damages for the violation of constitutional rights. Furthermore, it issued a directive requiring the legislature to introduce a bill explicitly establishing legal protections and formal recognition for transgender individuals. This was the first time a Kenyan court explicitly ordered the state to create a transgender specific legislation.
These two rulings signal a judiciary that takes constitutional values very seriously. Jinsingu honors the courage of the petitioners A.M.I, Thiaya Kaku (May his soul continue resting in eternal peace) M.M, and the interested parties, Amka Africa Justice Initiative, and The Kenya Human Rights Commission. We acknowledge A.K.G, Tanaka Muren, Frankie Robert Kibagendi, A.J.K, and Adrian King Kibe whose testimonies informed the decision of the court. In the earlier court decision in Eldoret, we acknowledge S.C for her courageous testimony, and the Transgender Education and Advocacy (TEA) for initiating the Eldoret petition. It is through your courage, and strategic litigation that change becomes possible.
The Cost of the Legal Limbo
Existing without legal protection perpetrates ongoing harm. The evidence presented before Milimani Law Courts highlighted the cost of existing without legal protection in every aspect of the lives of transgender individuals.
Economically, mismatched documents are structural barriers to participation in the formal economy. AKG has been unable to secure employment since her gender identity was discovered. This is because prospective employers see the variance between her female appearance and the male marker on her identity card. Adrian King Kibe can only be engaged as a consultant, not as a full term employee, because of document inconsistencies. Because of inconsistencies between his official documents and gender identity, Tanaka Muren is excluded from basic services such as mobile money, banking, and health insurance. In the sporting world, these same hurdles continually bar him from fair competition and career participation.
In terms of health and safety, the expert evidence of Dr Simon Pickstone-Taylor MBChB (UCT) established that there was a 7.6 times higher rate of suicide attempts for transgender adolescents denied legal recognition. Further, Tanaka Muren was denied treatment during the COVID-19 Pandemic because his insurance card did not match his gender expression. S.C was sexually assaulted in male police cells, strip searched my male police officers and prosecuted for personation, all because her documents did not reflect his identity. For intersex persons, the absence of legal protections facilitate non-consensual surgeries in infancy that cause life long harm.
In social participation and civic life, documentation incongruence closes doors to participation in elections, opening a bank account, accessing healthcare, education, visiting a government office and travel. Each interaction carries a risk of exposure, humiliation and denial of service.
Parliament Must Now Act
Jinsiangu Kenya represents both transgender and intersex persons. We are aware that these are distinct communities with distinct experiences, distinct medical realities and needs and in some aspects, distinct legal needs. We do not conflate them. However, the legislative imperative that faces these communities is identical in its constitutional urgency. It requires the enactment of dedicated legislation that will translate the judicial victories to tangible and durable legal protections.
Justice Mwamuye made it clear in his judgement, that the court is not mandated to describe a detailed policy or any administrative call for future frameworks, recognising that such directive falls within the constitutional imperative of parliament and other state organs. This means that the ball is in the legislature's court, who should develop administrative and legislative measures to provide clarity, consistency and uniformity in procession applications of changes in gender markers.
The Milimani Court found it constitutionally unjustifiable that the State amended documents for intersex person Frankie Robert Kibagendi without statutory authority, yet withheld the same administrative capacity from transgender persons. This tells us that the barriers are political, which is under the purview or parliament. The Eldorect court had earlier directed parliament to table a Transgender Rights Bill. That order has been outstanding since 2025, and remains unexecuted. Jinsiangu Kenya submits that the time for legislative inaction has definitely passed.
Jinsiangu Kenya therefore makes the following calls to action:
Parliament must table and pass the Transgender Protection Rights Act, responsive to the Eldoret court order and the constitutional findings of the Milimani judgment, providing for accessible gender marker amendment procedures, non-discrimination protections, and humane treatment in custody.
Parliament must immediately pass the Intersex Persons Bill, 2024, ending a legislative gap that has left the intersex community without the explicit legal recognition and bodily integrity protections.
The Attorney General must champion both Bills through the legislative process without further delay.
The relevant State institutions, including the National Registration Bureau, the Principal Registrar of Births and Deaths, the Ministry of Health, and the Kenya Prisons Service, must develop and operationalize interim administrative protocols for the respectful treatment of transgender and intersex persons pending full legislative enactment.
The constitutional framework of this country was built on the premise that every person has worth, value, and dignity by virtue of their humanity alone. Transgender and intersex Kenyans are not asking for special rights. They are asking for the same rights that every other Kenyan exercises routinely. The right to hold a valid identity document. The right to access a bank. The right to see a doctor. The right to hold a job. The right to move through their country without fear of arrest, humiliation, or forced exposure of their most private medical realities. Every month of inaction is another month in which thousands of Kenyan citizens cannot fully participate in the life of their own country. The judiciary has spoken. It is now Parliament's turn to act.
