Attempts by an intersex convict to introduce a third gender into Kenyan law books was thwarted Thursday when a constitutional court held there are no such people.
Dismissing Richard Muasya’s plea, a three judge bench said no evidence has been placed before them to show that there are people called intersex.
“The parties in the case have not identified any single person who is intersex. We are not persuaded that there is a body of persons called intersex on whose behalf Muasya can seek orders,” said the three judges.
Judges Hannah Okwengu, Ruth Sitati and George Dulu held that the fact that Muasya has ambiguous genitalia has not in any way affected the sex he was allocated at birth by his parent.
Muasya, the judges said, was named as a man and he didn’t indicate that he wants to change that.
“We reject the argument that third gender should be introduced as society is not ready for it and Muasya is provided for under the constitution which protects one against discrimination based on gender,” they ruled.
On the issue of social stigma Muasya goes through the court had this to say: “The social stigma is of concern but its not a legal problem.”
Their decision arose out of an application by Muasya who was born with male and female genitals, but passes off as a man, seeking legal recognition and unconditional release from Kamiti Maximum Prison because of his ambiguous genitalia.
Muasya says he has been unable to get a birth certificate and hence cannot achieve his academic ambitions.
His would-be wife walked away from him after she discovered his condition, saying she could not live with a fellow woman, Muasya says. He finds himself in a country that does not recognise his gender and that of people like him.
Muasya, who has been convicted of robbery, says the law is discriminatory because it only recognises male and female gender.
Under international law and the Universal Declaration of Human Rights, everyone has a right to legal representation, Muasya says. But under the Kenyan law, that right has been denied him.
The Kenyan law does not only fail to recognise people like Muasya, but also lacks definition for such people.
However, in international jurisdiction, a double-sex man is described as one who, because of his or her genetic condition, is born with reproductive organs that are not exclusively male or female.
He believes that, if the court orders his recognition, he will be able to get legal and travel documents, and maybe undergo corrective surgery.
Christian lawyers want the court to ignore his wishes, arguing that allowing a third gender would most likely open floodgates for the teaching of homosexuality and lesbianism.
The Attorney-General also told him to lobby Parliament to have the law changed.
The AG said he believed the allegations of violation claimed against the State were far-fetched and could not be grounds for setting Muasya free.
The only way Muasya can be helped, they said, is to encourage parents with such kids to open up and also educate the public on their ambiguous sex so that their dignity can be respected.
Intersex, they said is not a matter of choice as homosexuals.
The judges also declined to order for his release saying there is no just cause for them to interfere with his conviction.
They noted that Muasya never said he is a woman and so they do not see how his rights have been violated by any laws of the land.
The judges also contend that Muasya was never denied opportunity to vote as he alleges but to the contrary he is the one who disenfranchised himself.
And on the issue of whether the government should pay for him to go through corrective surgery the judges said his case is not any special than that of cancer or HIV and Aids patients to warrant such.
However, Muasya was not left without any remedy as the court awarded him Sh500,000 for inhuman treatment he suffered at Kamiti.
He will be held in Kamiti but in a cell of his own.