On August 12, a Kenyan high court ruled that a trans woman’s rights were violated while she was in custody. The landmark ruling went even further, mandating the government to pass legislation for the recognition of trans people under Kenyan law.
The trans woman, referred to as ‘SC’, brought the case after she was arrested by Kenyan police on charges of “impersonation” in June 2019. She was remanded to a women’s prison and, while in custody, she was subjected to intrusive body searches and non-consensual medical examinations to “determine her gender”. Moreover, her medical records were leaked to the media.
With the support of Kenyan rights group Transgender Education and Advocacy (TEA), SC sued the Kenyan Prison Service and the hospital where she underwent medical examination, arguing that her treatment by authorities was unconstitutional. She also claimed that her dignity had been violated and that the case demonstrated that in Kenya, there is a legislative gap in regard to the protection of trans people in prison.
In the landmark decision, Justice R. Nyakundi of the Eldoret High Court ruled in favour of the trans woman, awarding her 1,000,000 Kenyan Shillings (approximately €6,500) in damages. The court found that her rights to dignity, privacy and freedom had been violated by the inhuman and degrading treatment she received while in custody.
Justice Nyakundi went a step further in his ruling, ordering the Kenyan government to introduce legislation to protect the rights of trans people in the country. The judge mandated the government to either pass a Transgender Protection Rights Act or amend the Intersex Persons Bill, which is already under consideration.
“This is the first time a Kenyan court has explicitly ordered the state to create legislation on transgender rights, and a first on the African continent,” said Lolyne Ongeri, a spokesperson for Jinsiangu, Kenya’s leading advocacy organisation for intersex and trans rights.
“If implemented, it could address decades of legal invisibility and discrimination faced by transgender persons by establishing clear legal recognition of gender identity, protections against discrimination in employment, housing, healthcare, and education, and access to public services without bias or harassment.”
Ongeri added: “Going forward, Jinsiangu will closely monitor the State’s next steps, as it is now obligated to draft and table a Transgender Rights Bill in Parliament. We commit to working hand-in-hand with lawmakers, civil society, and the public to ensure the legislation is inclusive, evidence-based, and enforceable.”
Trans people in Kenya face widespread discrimination, and current laws do not offer protections, nor the possibility for them to legally change their gender. Same-sex intimacy is also criminalised in the country under a colonial-era law.
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