A Kenyan athlete who identifies as a woman has been awarded Ksh1 million in compensation after the court found she was subjected to degrading treatment by police officers and medical staff.
Delivering the judgment on August 19, Justice Reuben Nyakundi stated that the government must acknowledge the existence of individuals considered to belong to a ‘third gender,’ noting that confining them in prisons meant exclusively for men or women amounts to discrimination.
Additionally, he stressed the need to restructure detention facilities to ensure they cater to intersex persons facing legal challenges.
“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 conflict with the law, to guarantee their constitutional rights as outlined in this judgment,” Justice Nyakundi ruled.
How the Athlete Will Be Compensated
The athlete, whose identity was protected and recorded as S.C., was granted Ksh600,000 in compensation for being detained alongside male suspects and subsequently accused of impersonating a woman.
In addition, the Moi Teaching and Referral Hospital (MTRH) was ordered to pay her Ksh400,000 after its medical staff breached her privacy by forcing her to strip for a gender verification.
“A declaration be and is hereby made that there is a compelling sense of urgency for the state in the interim to make provision of the physical and structural facilities at the police stations and the prison facilities for these ‘third gender’ who may conflict with the law because of their gender identity, to guarantee their constitutional rights as envisioned in this judgment,” ruled Justice Nyakundi.
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How The Arrest Happened
The Kenyan athlete was first arrested at the Moi Teaching and Referral Hospital (MTRH) and was charged with impersonation.
The athlete was committed to Eldoret Women’s Prison based on the details in the birth certificate.
Upon informing prison authorities of being intersex, officers conducted an invasive genital examination and recommended a transfer to a male facility.
However, the Director of Public Prosecutions (DPP) directed continued detention at the Eldoret Police Station while investigations into gender were conducted.
The athlete also accused an investigating officer of ridiculing her.
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Recommendations on the Kenyan Prison
The 2018 Taskforce Report on Intersex Persons in Kenya by the Kenya Law Reform Commission had similar recommendations on the rights of “third-gender” people.
The Centre for Human Rights issued further proposals, urging states to:
- Safeguard the bodily integrity of intersex children by outlawing genital mutilation and other unnecessary medical procedures.
- Investigate and prosecute cases of abandonment, abuse, violence, or infanticide targeting intersex children.
- Tackle the root causes of discrimination based on intersex traits or status, while ensuring accountability for human rights violations against intersex persons.
- Provide specialized training for public servants — including health workers, teachers, law enforcement officers, and judicial officers — on the rights and needs of intersex persons.
- Amend laws and establish administrative frameworks that enable intersex persons to acquire identity documents, and where necessary, alter sex markers on birth certificates and official records.
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