A transgender woman in the East African nation of Kenya has won a landmark court victory in which the judge not only found in her favour, but ordered the government to pass a Transgender Protection Rights Act.
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“SC” was assigned male at birth but had been living as female since her childhood and had obtained official documents including a birth certificate and passport with female sex markers while living in another country where she had also competed in women’s athletics.
Despite that, she was arrested by Kenyan police on charges of “impersonation” in June of 2019 while visiting Moi Teaching and Referral Hospital.
Mistreated by authorities
SC was remanded to a women’s prison where she was strip searched, and a court then ordered that she be subjected to “gender determination” during which she was subjected to a genital examination, hormone testing, blood sampling and radiological testing.
Following this her medical records were leaked to the media.
SC sued the Kenya Prisons Service and the hospital with the support of Kenyan rights group Transgender Education and Advocacy (TEA), arguing that her treatment by authorities was unconstitutional under Kenyan law.
She also argued that her inherent dignity had been violated, and that her treatment demonstrated a legislative gap around transgender people while they are being held in custody in Kenya.
The court’s decision
Justice R. Nyakundi of the Eldoret High Court awarded SC 1,000,000 Kenyan Shillings (around AU$8,000) in damages and found that SC’s rights to dignity, privacy and freedom from inhuman and degrading treatment had been violated.
But he went a step further and ordered the Kenyan Government to introduce legislation to address the rights of transgender Kenyans.
Justice Nyakundi gave the Kenyan Government two options, either pass a Transgender Protection Rights Act or amend an Intersex Persons Bill that it is already considering so that it also ensures legal recognition for transgender people under Kenyan law.
