Transgender Kenyans win a major court victory
High Court judge orders Parliament to pass a law protecting trans rights.
Although transgender rights are under attack in the United States and the United Kingdom, transgender people in Kenya have won a major court victory.
A trans woman’s court victory in Kenya could have wide-ranging implications for trans rights in the East African nation, after a judge agreed she suffered inhuman and degrading treatment at the hands of government authorities and directed Parliament to enact protections and recognition in law for trans Kenyans.
The plaintiff, Shieys Chepkosgei, was detained in 2019 and charged with “impersonation,” despite the fact that she had held 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.
Chepkosgei was arrested by Kenyan police while visiting a teaching hospital, Q News reports.
She was remanded to a women’s facility, strip-searched, and ordered by a court to undergo “gender determination,” which included a genital examination, hormone testing, blood sampling, and radiological testing.
Chepkosgei challenged her detention and the nonconsensual medical examinations in court, arguing they were unconstitutional, violated her inherent dignity, and highlighted a legislative gap in the treatment of transgender persons in custody in Kenya.
Justice R. Nyakundi of the Eldoret High Court agreed that Chepkosgei’s rights to dignity, privacy, and freedom from inhuman and degrading treatment had been violated, according to Jinsiangu, a Kenyan intersex, transgender, and gender non-conforming rights group. She was awarded the equivalent of about $8,000.
But the judge went a step further, directing the Kenyan government to initiate legislation in Parliament addressing the rights of transgender Kenyans, either with new protections or by amending current legislation on the rights of intersex people currently moving through Parliament.
“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,” Jinsiangu’s Lolyne Ongeri told Mamba Online.
“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.”
Kenya has a fraught history with LGBTQ+ rights, with colonial-era penalties for same-sex behavior still in effect, and discriminatory legislation modeled on Uganda’s notorious Anti-Homosexuality Act – which allows for the death penalty for homosexuality – introduced in Parliament.
Same-sex relations remain criminalized, with “carnal knowledge against the order of nature” and “gross indecency” punishable by up to 14 years in prison.
Transgender people in Kenya face widespread stigma, discrimination, and violence. Current law bars trans Kenyans from legally changing their gender identity from the one assigned at birth.
