Publication Date



On or about 3rd May 2009, Baby A (1st Petitioner) was born as an intersex child.2 On 10th May 2009, Kenyatta National Hospital (2nd Respondent) conducted various medical tests on the 1st Petitioner and on one of the documents that captured the 1st Petitioner’s details, inserted a question mark ‘?’ in the column that indicated the child’s sex. The Petitioners claimed that the entry of a question mark to indicate the sex of Baby A violated the rights of the child to legal recognition, dignity and freedom from inhuman and degrading treatment. These rights were guaranteed in Section 4 of the Children Act3 and Articles 27, 28 and 29 of the Constitution of Kenya.

The Court in the case of Baby A acknowledged that there was a need to create laws and guidelines that were inclusive of and protected intersex persons. To this effect, the Court made several obiter remarks relating to the need to implement laws that were inclusive of intersex persons. These remarks may be of great persuasive value in the bid to realise the rights of intersex persons in Kenya. However, the Court did very little to ensure that such laws and guidelines are created as it ultimately made a decision that amounted to a request for ‘the powers that be’ to change the law to include intersex persons’ rights. The Court effectively neglected its duty and authority to ensure that such powers were in a position that would compel them to repeal laws that excluded intersex persons and create laws that were inclusive. Consequently, intersex persons still do not enjoy legal recognition of their sex and are still exposed to corrective surgery at birth which deprives them of their bodily integrity and autonomy.