Kenyan court orders trans rights bill in landmark legal ruling

A trans woman has won a landmark court victory in Kenya, after a judge ruled in her favour and ordered the government to pass legislation to protect transgender men and women.

Known only as SC, the trans woman had been living as her affirmed gender since childhood and held documents supporting that from when she lived in another country.

Kenya criminalises same-sex activity between men, with a maximum penalty of 14 years’ imprisonment. Members of the LGBTQ+ community are subjected to discrimination and violence in the East African country, the Human Dignity Trust has reported.

In June 2019, according to Q News, SC was arrested while visiting Moi Teaching and Referral Hospital, on charges of “impersonation”. She was taken to a women’s prison and strip searched.

A court ordered that she be subjected to “gender determination,” which included a genital examination, hormone testing, blood sampling and radiological testing. Her medical records were later leaked to journalists. 

SC sued the Kenya Prisons Service and the Eldoret hospital, with support from the rights group Transgender Education and Advocacy, claiming that the treatment she faced was unconstitutional under Kenyan law. 

She also contended that her dignity had been violated and highlighted a legal gap regarding trans rights for those in custody in Kenya.

‘Her freedom from inhuman and degrading treatment was violated’

Sitting in Eldoret, justice Reuben N Nyakundi awarded her 1,000,000 Kenyan Shillings (£5,700/$7,700) in damages. 

The judge ruled that SC’s rights to dignity, privacy and freedom from inhuman and degrading treatment had been violated and he ordered the government to address the rights of trans Kenyans either by introducing a transgender protection rights act or by amending the Intersex Persons Bill.

Lolyne Onger, a spokesperson for the queer rights charity Jinsiangu, told Mamba Online: “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.

“If implemented, [a new law] 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.”

Sweeping anti-homosexuality laws were drafted in 2023, with one politician saying he wanted to “kick LGBT people out of Kenya completely”. 

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