State: It is not possible to change one's sex

The Kenyan law does not allow people to change their sex in adulthood, the government says.

Attorney General Dorcas Oduor says a person is born either a boy or girl and cannot change the sex after growing up.

In her submissions before the High Court, in a case where three persons were seeking new birth certificates to recognise their transgender status, the government’s legal advisor argued that naming and issuance of a birth certificate is based solely on physical appearance.

Ms Oduor urged High Court Judge Bahati Mwamuye to dismiss the case saying the psychological feeling of a man or woman of being trapped in the wrong body cannot be a basis for changing one’s gender to either male or female.

“The existing laws of the land do not contemplate change of gender and marks of transgender are not a basis for determining one’s gender as either male or female. The existing laws certainly do not expressly or impliedly envision a situation where gender can be changed,” Oduor submitted.

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The AG maintained that gender is based on fact and not feelings, pointing out that it was a fact the petitioners were registered upon birth as persons of a particular gender and given a particular name that corresponds with their gender.

Oduor was responding to a case filed by Audrey Mbugua, Maurene Muia and Arnest Thaiya. The trio sued AG, the Principal Registrar of Births and Deaths, the director of the National Registration Bureau, and the director of Immigration.

They also cited Amka Africa Justice, Jinsiangu Kenya and the Kenya Human Rights Commission (KHRC) while arguing that one cannot be forced to live with a name of a gender that they are not.

They claimed that they have missed opportunities and rights conferred to ‘their right gender’ owing to the failure to change the names on birth certificates, National Identification cards and passports.

In her case, Audrey claimed that she wanted to identify as a woman and live as one. The court also heard that Audrey was dressed, walked and was firmly believed to be female.

“The process of determining sex is therefore not scientific but subjective. There are no identifiers of sex or definitions of the biological or psychological components of sex. In any event, such biological components cannot be limited to genitalia only, but include chromosomes, gonads, hormones and brain,” the trio argued.

But the AG asserted that identification documents can only be corrected if there is a mistake, such as a spelling error or parents.

The court heard that one cannot mistake a woman for a man. Further, Kenyan law does not allow a person to change his or her gender at any point.

Senior State counsel Ruth Wamuyu argued that gender is assigned at birth based on physiological attributes and therefore the law does not contemplate it will change.

“The petitioners have not demonstrated any errors that ought to be corrected, and the sex of a person assigned at birth is a biological fact, not an error. What the petitioners want is a change of gender identity. A want that is not contemplated in the laws of Kenya,” argued Wamuyu.