A landmark constitutional ruling delivered by Bahati Mwamuye has opened the door for transgender and intersex Kenyans seeking to change sex or gender markers on official documents, with the High Court declaring that administrative agencies cannot deny such applications in a manner that violates constitutional rights.
In a detailed judgment delivered virtually on Wednesday, Justice Mwamuye held that the Births and Deaths Registration Act and the Registration of Persons Act do not expressly prohibit the consideration of applications seeking alteration of gender or sex markers on birth certificates, national identity cards and passports. The judge ordered relevant state agencies to receive, consider and determine such applications within 60 days, guided by constitutional principles of fairness, dignity and equality.
“This court reiterates that constitutional adjudication is not an abstract exercise in legal reasoning, but a mechanism for vindicating rights where infringement has been demonstrated and no lawful justification has been established,” Justice Mwamuye said in one of the strongest passages of the ruling.
The judge further warned against using administrative gaps or legislative silence to deny constitutional protections, stating: “Constitutional rights cannot be limited by administrative convenience, nor can their enforcement be postponed pending legislative intervention.”
Justice Mwamuye emphasized that the court was not attempting to legislate or create a comprehensive framework governing gender marker changes, but was instead ensuring that existing statutory powers are exercised lawfully and in compliance with the Constitution.
“The court’s mandate is confined to determining whether the impugned administrative acts and omissions are consistent with the Constitution and the applicable statutory framework,” the judge stated, while noting that Parliament and relevant agencies remain free to develop future legislation or policy guidelines.
In dismissing a preliminary objection raised by the respondents, Justice Mwamuye defended a substantive approach to constitutional litigation over technical barriers.
“While that principle remains an important safeguard requiring precision in constitutional pleadings, it must not be applied mechanically so as to defeat substantive justice,” the judge ruled.
The court found that the refusal to amend or even consider amendments to the petitioners’ identity documents resulted in continuing violations of rights protected under Articles 27, 28, 29, 31, 33 and 47 of the Constitution, including the rights to equality, dignity, privacy and fair administrative action.
In another notable passage, Justice Mwamuye declared: “The Constitution of Kenya 2010 properly interpreted requires that statutory discretion in matters of civil registration be exercised in a manner that is consistent with the Bill of Rights.”
The judgment also established that, pending any legislative framework, future applications for alteration of sex or gender markers must be handled individually “in a manner that is procedurally fair, reasonable, non-discriminatory, and consistent with the Constitution.”
Justice Mwamuye ultimately issued orders quashing previous refusals by government agencies and compelling the Principal Registrar, the National Registration Bureau and passport authorities to reconsider the applications within 60 days.
Recognizing the broader constitutional significance of the matter, the court directed each side to bear its own costs, describing the case as one involving “significant public interest” and fundamental questions of constitutional interpretation.
