The High Court has paved the way for individuals seeking to change their gender markers to do so without being constrained by classifications of male, female or intersex.
Justice Bahati Mwamuye, in his judgment in a case filed by transgender activist Audrey Mbugua alongside Maureen Muiya and Arnest Thaiya, said that delays and silence cannot be used to defeat constitutional requirements.
He noted that despite several orders directing the government to amend Mbugua’s birth and identification documents, the births and deaths registry failed to comply, citing a gap in the law.
However, Justice Mwamuye held that the existing law does not prevent anyone from changing their gender markers when they choose to do so.
“Constitutional processes cannot be limited by administrative convenience, nor can they be postponed pending legislative intervention. A declaration is hereby issued that the Births and Deaths Registration Act, Chapter 149, and the Registration of Persons, Chapter 157, interpreted in a manner consistent with the Constitution, do not prohibit the consideration of alteration of gender markers in registration documents in a manner that is consistent with the Bill of Rights,” he said.
