, NAIROBI, Kenya, Dec 2 – The constitutional court has thrown out a landmark case by an intersex convict, who wanted the recognition of a third gender.
The court said it was unable to issue orders for the recognition of a third gender as sought by Richard Muasya since only Parliament has the power to define sex through legislation.
Muasya had wanted the court to direct his release from Kamiti maximum prison, an all-male prison due to sexual harassment and inhuman treatment. He also sought the establishment of a separate jail facility for intersex inmates.
The court however told Muasya – who is a death row convict – that he could not purport to seek orders for the recognition of other people like him, since he did not identity anyone with a similar condition.
“There is no empirical data that can make the court conclude that people with such bodies need recognition,” the three-judge bench ruled.
The court ruled that when he was born, he was assigned the male gender because his physiological appearance was that of a male, and he could not seek to change it at this point in life.
The court also dismissed claims that he was unable to secure employment and get housing due to his sexual nature.
The judges also ruled that he could not claim he was discriminated in securing an ID, or travel documents since he never applied for them.
However Justices Hannah Okwengu, George Dulu and Ruth Sitati awarded Muasya Sh500,000 for the indignity he has suffered in prison.
Muasya had argued that he underwent humiliating searches that did not take into account his transgender, thus lowering his dignity. The court ruled that such searches must be done with dignity and using modern technology not to lower the self-esteem of inmates.
Muasya had also complained that he was detained in solitary confinement for two years due to his intersexual nature. The judges said he cannot run away from the conviction for robbery and must continue serving his sentence.