Court: No legal bar to changing sex markers on official documents

The High Court has ruled that Kenyan law does not bar state agencies from considering applications seeking alteration of sex or gender markers on official identity documents.

Delivering a judgment on Wednesday, Justice Bahati Mwamuye held that the Births and Deaths Registration Act (Cap 149) and the Registration of Persons Act (Cap 107), when interpreted in line with the Constitution, do not expressly prohibit the consideration and determination of such applications.

The ruling comes after a petition filed by Audrey Mbugua Ithibu, who challenged a decision by state agencies not to process requests for changes to sex or gender markers on official records, including birth certificates, national identity cards and passports.

In the petition, the court was told that the refusal to even consider the applications amounted to violations of constitutional rights, including equality, dignity, privacy and fair administrative action.

Justice Mwamuye agreed that the petition raised clear constitutional questions and dismissed the respondents' preliminary objections, stating that the issues were properly before the court.

“The respondents were fully aware of the case they were required to meet and have addressed it comprehensively on the merits,” the judge observed.

At the heart of the judgment was the court’s interpretation of whether the existing legal framework bars such applications.

The judge found that while the statutes do not provide a specific procedure for gender marker changes, they also do not expressly prohibit consideration of such requests.

“The Births and Deaths Registration Act Chapter 149 and the Registration of Persons Act Chapter 107, when interpreted in a manner consistent with the Constitution, do not expressly prohibit the consideration and determination of applications for alteration of sex or gender markers,” the court held.

Justice Mwamuye emphasised that the role of the court is not to create new legislation or design administrative policy, but to ensure that state action complies with the Constitution.

“This court does not purport to legislate or to establish a comprehensive statutory framework,” he stated, noting that Parliament and relevant agencies remain free to develop clearer policies in future.

However, the judge underscored that constitutional rights cannot be suspended due to administrative gaps.

The court found that refusing to consider applications at all amounted to a continuing violation of rights protected under several articles of the Constitution.

“The Constitution of Kenya 2010 properly interpreted requires that statutory discretion in matters of civil registration be exercised in a manner consistent with the Bill of Rights,” the court stated.

The court further ruled that state registrars are entitled to exercise powers under existing law in a manner consistent with constitutional rights, meaning applications must at least be received and considered rather than automatically rejected.

Accordingly, the court issued orders compelling relevant state agencies to receive, consider and determine the petitioner's application for alteration of sex or gender markers on identity documents within 60 days.

The court also directed that, pending any legislative or policy framework, such applications should be handled on a case-by-case basis in a fair, reasonable and non-discriminatory manner.

Each party was ordered to bear its own costs, with the court noting that the matter raised significant public interest and questions of constitutional interpretation.