Court awards intersex athlete Sh1m, orders State to improve prisons

The government must urgently cover the costs of modifying police cells and prisons to accommodate intersex persons who may come into conflict with the law, a High Court ruling has stated.

This follows a distressing case involving a Kenyan athlete now identifying as a woman, who endured harsh treatment at the hands of police officers and hospital medics.

Justice Reuben Nyakundi ruled that the government cannot ignore the reality of individuals identifying as a ‘third gender’ being confined in holding cells or prisons designated strictly for either males or females.

He directed the Attorney General to initiate amendments to Part Six of the Prisons Act to include provisions for intersex persons.

The judge ordered the government to pay the athlete, identified only as S C, Sh600,000 for detaining her alongside male suspects and charging her with allegedly impersonating a woman.

Additionally, Moi Teaching and Referral Hospital (MTRH) was ordered to pay Sh400,000 for violating her right to privacy after medics forced her to strip to verify her gender.

“There is a compelling urgency for the state to make physical and structural provisions at police stations and prison facilities for ‘third gender’ individuals who may be in conflict with the law, to guarantee their constitutional rights as outlined in this judgment,” Justice Nyakundi ruled.

S C testified that she was born in Uasin Gishu on December 28, 1990, into a family of five. Although assigned a male name and dressed as a boy in school, she became aware of her female identity at the age of five.

Her family accepted her as a girl, but many believed she was mentally challenged, referring to her in the Kalenjin language as “makararan met” (mentally abnormal). Her father called her “cheptanyu” (my daughter), though extended family treated her as strange.

Her difficulties with the State began in 2009 when she applied for a national identity card. Despite her female identity, the Registrar of Persons listed her as male.

Impersonation charges

S C said she secured a job in Kimumu, Uasin Gishu County, but a woman familiar with her past told her employer she was male. The employer reported her, leading to her arrest at Eldoret Central Police Station for impersonation.

She was held in a male cell for a week until her family intervened and her employer confirmed she had committed no crime. After her release, S.C.’s identity card went missing. When she applied for a replacement, the registrar refused, citing a mismatch between her female appearance and the male ID.

Though her passport and birth certificate identified her as female, S.C. said the incongruence between her identity and assigned sex at birth has led to misunderstanding, assault, discrimination, and isolation.

On June 14, 2019, S C was again arrested, this time at MTRH, and taken to Eldoret Women’s Prison. After she disclosed being intersex, officers conducted an intrusive genital search and suggested transferring her to a male prison. The DPP later ordered she be held at Eldoret Police Station.

She said officers mocked her clothes, slapped her, and ransacked her house for performance-enhancing drugs. At MTRH, she was forced to strip naked in front of male officers. Medics said they could not determine her gender, yet were later called to testify in court.

She feared a two-year jail term if the High Court didn’t intervene.

Police Constable Victor Omondi asked the court to dismiss the case, claiming she had impersonated a female and was blacklisted for competing in women’s athletics. The Attorney General and MTRH denied wrongdoing but asserted S C was male.

The case exposed glaring gaps in the legal protections for intersex and transgender people in Kenya.