https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6906

AMI & 2 others v Attorney General & 6 others (Petition 27 of 2020) [2026] KEHC 6906 (KLR) (Constitutional and Human Rights) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6906 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition 27 of 2020 B Mwamuye, J May 20, 2026 IN THE MATTER OF VIOLATION OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 2, 4, 10, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 43 AND 47 AND IN THE MATTER OF BIRTHS AND DEATHS REGISTRATION ACT, CAP 149 AND IN THE MATTER OF THE REGISTRATION OF PERSONS ACT, CAP 107 Between AMI 1st Petitioner MM 2nd Petitioner AT 3rd Petitioner and The Honourable Attorney General 1st Respondent The Principal Registrar Of Births And Deaths 2nd Respondent The Director Of National Registration Bureau 3rd Respondent The Director Of Immigration Services 4th Respondent and Amka Africa Justice Initiative 1st Interested Party Jinsiangu Kenya 2nd Interested Party Kenya Human Rights Commission 3rd Interested Party Judgment Introduction 1.Before the Court is the Petition dated 27th January 2020. It is not a Petition that seeks the legal affirmation of transgender status. It is not a Petition that seeks declarations or orders regarding same-gender or transgender marriage. It is not a Petition that seeks to, in any way, interrogate the extent to which the limitations set out under Article 45 of the Constitution apply. It is not a Petition that seeks to challenge any criminal law prohibition on same-gender or transgender intimate relations. 2.Rather, the Petition dated 27th January 2020 is situated within the ordinary and mundane realm of public administrative law in which the Petitioners are aggrieved with the Respondents’ continued refusal to alter the sex or gender markers on the birth certificates, national identity cards, and passports of the Petitioners persons; who had earlier lawfully changed their names through Deed Poll processes undertaken through the Respondents and also produced to the Respondents medical evidence of their gender transition. 3.In that regard, the Petition asks a basic constitutional judicial review question: is it lawful for the Respondents, having allegedly created a legitimate expectation and also without reliance on any express provision of law, to remain silent, or to request irrelevant and unnecessary steps or documents, or to informally rely on non-existent law, when seized of a request by the Petitioners or persons in similar circumstances for a change of gender/sex markers on identification documents? 4.The Petition also asks another fundamental question, not about the recognition of same‑sex marriage or any matter pertaining to sexual orientation, but rather whether inherent to personhood and human dignity is the right of a person to be identified by the State in a manner consistent with their lived reality and core identity, and whether there is a corresponding duty of the State to administer its systems in a way that respects human dignity. 5.The Petitioners are three Kenyan citizens who identify as transgender persons. The 1st and 2nd Petitioners were assigned the male sex at birth but live and identify as women. The 3rd Petitioner was assigned the female sex at birth but lives and identifies as a man. The Petitioners contend that the Respondents’ refusal to amend their identification documents after they had changed their respective names by Deed Poll to names suitable for life as the gender opposite to that assigned at birth, has subjected them to daily humiliation, harassment, discrimination in employment, housing, healthcare, and financial services, and has exposed them to arbitrary arrest and degrading treatment. 6.The Interested Parties, comprising civil society organizations representing transgender and intersex persons, have joined in supporting the Petition, filing extensive factual affidavits and an unchallenged expert psychiatric report on the nature of gender dysphoria. 7.The Petitioners therefore seek the following reliefs from this Court: -a.A declaration that the Petitioners have a right to equal protection of their identities before the law.b.A declaration that the State is obligated to recognize and protect the genders identities of the Petitioners as transgender persons.c.An order that the 2nd Respondent be and is hereby compelled to amend the names on the birth certificates of the Petitioners so as to reflect their names.d.An order that the 2nd Respondent be and is hereby compelled to amend the gender marks on birth certificates of Petitioners so as to reflect their names.e.An order that the 3rd Respondent be and is hereby compelled to amend the gender marks on national identity cards of Petitioners so as to reflect their gender identity.f.An order that the 3rd Respondent be compelled to change the name of the 3rd Petitioner in his national identity card so as to reflect his name.g.An order compelling the 4th Respondent to amend the gender marks in their passports to reflect their gender identities.h.Any other order that the Honourable court finds appropriate in the circumstances.i.Costs and damages. 8.The Respondents oppose the Petition. The 2nd Respondent, the Principal Registrar of Births and Deaths, filed a Replying Affidavit arguing that the Births and Deaths Registration Act (Cap 149) does not provide for the change of sex particulars after registration and that sex is a biological fact recorded at birth based on physiological features. 9.The 1st Respondent, the Attorney General, filed Grounds of Opposition alleging, inter alia, that the Petition lacks specificity, that the Petitioners have not demonstrated how their rights have been violated, and that granting the orders sought would compel the State to legally recognize the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community. 10.The 3rd Respondent (Director of National Registration Bureau) and the 4th Respondent (Director of Immigration Services) filed no Replying Affidavits or such other responses to the Petition. 11.From the outset the Court wishes to make clear that in these proceedings whenever reference was made to the Petitioners, the Court and the Parties, even those opposing the Petition, adopted the gender pronouns that each of the Petitioners used in referring to themselves. This was in no way a pre-judging of the case by the Court, nor a concession by the Respondents. It was a common courtesy agreed by the Court and all the Parties so as to avoid unnecessary acrimony over an issue that would have had the potential to entirely derail the orderly and expeditious hearing and determination of the Petition on its relative merits. The Case In Support Of The Petition 12.The 1st Petitioner, AMI, in her Supporting Affidavit sworn on 27th January 2020, describes a life of persistent and profound gender incongruence. She was born in the year 1984 in what is now Kiambu County, assigned the male sex at birth, and named AMI. A copy of her birth certificate is annexed as annexure “AMI-1”. 13.The 1st Petitioner avers that as early as in nursery school, she preferred to play with girls and engage in their games rather than with boys, for which she was reprimanded by teachers. Throughout primary and high school, she states that she felt different from boys, was bullied, and when she grew facial hair at age fourteen which she found it disgusting. She states that as a teenager she felt deformed and preferred to shower in private as being in proximity to naked boys made her feel uncomfortable as she perceived herself as a girl and not as a boy. After high school, the 1st Petitioner states that she discovered social spaces in Nairobi where she could wear feminine clothes and be perceived and present herself as a young woman; experiences she describes as “opportunities to be who I felt I was.” 14.The 1st Petitioner’s Affidavit details a traumatic university experience at the (Redacted) University. When she plaited her hair in 2003, her father was infuriated and refused to pay her tuition fees until she cut it, asking, “Am I going to say you are my daughter or my son?” She avers that she became severely depressed, engaged in self‑destructive behaviour, and contemplated suicide. At university, she was denied hostel accommodation because her male‑marked identification documents conflicted with her female presentation. She avers that she was once forced to share a male hostel room with two male students, leading to humiliation and intrusive questions about her genitalia. In third year, she was raped. Her grades suffered. A clinical officer at the university clinic, after a humiliating interrogation, finally referred to her as a transsexual. Later, a letter from Mathari Hospital dated 12th March 2013 (annexure “AMI-3”) confirmed that a panel of psychiatrists had evaluated her and diagnosed Gender Identity Disorder (GID), noting that she had already begun the medical and physiological transformation from male to female. 15.The 2nd Petitioner, MM, in her Supporting Affidavit sworn on 27th January 2020, states at Paragraph 5:“Since I was a child, I never felt I was a boy, I developed a strong conviction I was a girl and felt at peace living as a girl.” 16.The 2nd Petitioner states that she completed her KCPE in 1994 and enrolled in a hairdressing course. She confirms that she has transitioned and now lives fully as a woman. 17.The 3rd Petitioner, AT, in his affidavit, states that he was born as a girl but has always identified and expressed himself as a male. From childhood and throughout adulthood, he states that he identified as a boy and as a man respectively. 18.The factual matrix is significantly reinforced by the Affidavits of the Interested Parties. The 1st Interested Party, through the Affidavit of S.C sworn on 17th October 2023, provides a harrowing account of the consequences of improper documentation. S.C was assigned the male sex at birth and named HK, but from age five she knew herself as a girl. Her family initially thought she was mentally abnormal (makararan met in Kalenjin), but her father later accepted her and called her “cheptanyu” (my daughter). She obtained a national ID card in the name HK. When she attempted to work as a house girl, a person who knew her from home disclosed her assigned sex to her employer, and she lost the job. She was subsequently charged in Eldoret with personation (Eldoret/MCCR/1980/2019) and was acquitted, but another similar charge (Eldoret/MCCR/480/2019) is still pending. Upon arrest, she was placed in male police cells where she was sexually assaulted by two male individuals. She was later transferred to Eldoret Women’s Prison based on her gender presentation. However, when she disclosed her transgender status, officers at the women’s prison conducted an intrusive body search of her genitals. Upon finding that she had a penis, she was returned to court and then to the Eldoret Central Police Station, where male officers forced her to strip completely for physical body inspection. She was then placed in male holding facilities, where she was abused and slapped. 19.The 2nd Interested Party filed two Affidavits. The first, sworn by KK on 13th October 2023, details her experience. She was assigned male at birth and named AGG. She attended (Redacted) Boys’ High School, where she was mistaken for a gay boy and was sexually molested at least six times in Forms 1 and 2, and further abused in Forms 3 and 4. Her father refused to transfer her. She later changed her name by Deed Poll and gazette notice (exhibit “KK-3”) but the Respondents refused to issue new identification documents. She states in Paragraph 24 that she is forced to use an ID card that shows someone other than herself. She avers that she lost her job at (Redacted) Limited after her gender identity disorder was discovered. She has been unable to secure employment since, as potential employers see the variance between her female appearance and the male marker on her ID. She has been denied housing, banking services, and mobile money services, and was once denied entry to the (Redacted: a tier-one Parastatal) offices, where security guards caused a public commotion and a crowd gathered, forcing her to disclose her transgender status. 20.The second Affidavit of the 2nd Interested Party was sworn by TMM on 27th February 2024. He was assigned female at birth and named MCM. A copy of his birth certificate is annexure “TMM-1”. As a child, he always played the role of a son in the game ‘kalongolongo’ and asked to be called ‘O’. At school, he was forced to wear a dress and keep the company of girls. He was shocked and confused when he learned about female puberty. He attempted suicide. He was enrolled in (Redacted) Secondary School, an all‑girls school, where other students wondered, “Who is that boy that has joined this school?” 21.Mr. M states that in high school he was bullied by older girls. He changed his name by Deed Poll and gazette notice (exhibit “TMM-5”) and now uses the name TMM. However, he states that the Respondents refused to issue a new ID card to reflect the Deed Poll. He filed two applications (26th October 2021 and 6th July 2023, exhibits “TMM-6(a) and 6(b)”) without success. 22.Mr. M states that he cannot access M‑PESA, banking, or health insurance. During the COVID‑19 pandemic, he was denied treatment because his insurance card did not match his gender expression. He was once arrested for not wearing a mask, and the police officer, seeing his feminine name on his ID, accused him of having a fake ID and refused to put him in a cell with male persons. He presented a medical report from his psychiatrist, Dr. Kemunto S.B. (exhibit “TMM-7”), who recommended that changing his name and gender marker would enable him to access health insurance, banking, education, and employment. The Respondents ignored the report. 23.The 2nd Interested Party also filed a Further Affidavit on 28th May 2024, with leave of the Court, annexing an Expert Report dated 30th April 2024 prepared by Dr. Simon Pickstone‑Taylor MBChB (UCT), a psychiatrist specializing in the transgender condition. 24.Dr. Pickstone‑Taylor explains that gender identity is not a choice but is at least in part neurologically determined. The Report underscores that a transgender person cannot change their gender identity through any form of therapy, and that denying legal recognition leads to dramatically elevated rates of suicide – a 7.6 times higher rate of suicide attempts in transgender teens as opposed to the normative. 25.The Report also states that the World Health Organization’s ICD‑11 has moved being transgender out of the mental health chapter into a standalone chapter on sexual health, and the World Health Organization no longer classifies transgender as a disease or disorder. 26.This expert evidence was not challenged or rebutted by the Respondents. 27.The 2nd Interested Party further filed the affidavit of FRK, an intersex person, sworn on 9th September 2024. Mr. K was assigned the female sex at birth and named FKK. He later applied to change his name and sex/gender marker. Mr. K states that the 2nd Respondent changed his birth certificate to reflect the name FRK and changed the female sex marker to a male sex marker. He also states that the 3rd Respondent changed his Kenya National Identity Card accordingly. He also states that he was was not required to undergo any surgery or hormonal treatment. 28.The 2nd Interested Party contends that this evidence is critical as it demonstrates that the Respondents have the administrative capacity to change sex markers on documents and have in fact done so for intersex persons but without any legal basis are denying the same to persons who are transgender. 29.The 3rd Interested Party filed two Affidavits. The first, sworn by AJK on 22nd October 2024, describes her experience as a transgender woman. She was assigned male at birth and named John Paul Mugambi Karijo. She changed her name by Deed Poll and gazette notice (exhibit “AJK-3”) and her ID card and passport were changed to reflect the name AJK. However, the sex/gender marker on both documents remains “male”. 30.Ms. Karijo states that this has caused her extreme distress when travelling. In (Redacted: foreign airport in Africa) in 2022, she was forced to strip for a security check after an airport scanner probably picked up something in her pants. It is her testimony that the security personnel in that foreign African airport indicated to her that things would have been easier if her passport had indicated she was a transgender person. 31.At Moi International Airport Mombasa in 2020, she states that she was accused of having someone else’s passport and asked to produce a medical report. Her yellow fever vaccination certificate also indicates “male”, raising questions every time she travels. She further states that her medical expenses are rarely covered by insurance without intrusive questioning. 32.The second Affidavit of the 3rd Interested Party was sworn by AKK. He was assigned female at birth and named GWK. He changed his name to AKK, and his new ID card (annexure “AKK-4”) reflects the name AKK. However, the sex/gender marker remains “female”. He states that he has experienced great difficulty in obtaining gainful employment due to this variance. An email from his current employer, the Kenya Human Rights Commission (annexure “AKK-5”), explains that he could only be engaged as a consultant, not as an employee, because of the challenges with his registration documents. Mr. K further states that he cannot access health insurance or the National Social Security Insurance Fund. 33.The Petitioners, through their written submissions, argue that the Respondents’ refusal to change the sex or gender markers on their birth certificates, national identity cards, and passports constitutes a direct and ongoing violation of Articles 12 (right to citizenship and associated documents), 27 (equality and freedom from discrimination), 28 (human dignity), 29 (freedom and security of the person), 31 (privacy), 33 (freedom of expression), and 47 (fair administrative action). They contend that the purpose of an identification document is to accurately identify the holder. When the document proclaims a sex that is contrary to the holder’s physical appearance, lived identity, and medical reality; the document ceases to serve its purpose and instead becomes an instrument of humiliation, discrimination, and danger. 34.On the interpretation of the Births and Deaths Registration Act, the Petitioners argue that while Cap 149 does not expressly provide for a change of sex marker, it also does not prohibit it. They rely on Section 28 of Cap 149, which empowers the Principal Registrar to correct any error or omission in the register. They submit that the mismatch between the sex assigned at birth (based on a brief observation of external genitalia) and the individual’s subsequent psychological and medical development constitutes an error or omission that the Registrar has a duty to correct. 35.The Petitioners invoke the principle of generous and purposive interpretation of the Constitution as mandated by Article 259(1). They cite the High Court of Botswana’s decision in ND v Attorney General of Botswana, where the Court held that a constitution must be interpreted as a living document, capable of adapting to a changing world, “otherwise, rights declared in words may be lost in reality.” 36.They also rely heavily on the Supreme Court of India’s landmark judgment in National Legal Services Authority v Union of India, 2014 INSC 275 (the NALSA case), where the Indian Apex Court recognized transgender persons as a third gender and affirmed their right to be identified in official documents in accordance with their self‑perceived gender identity. The Petitioners submit that the same principles apply in Kenya, given the similar Bill of Rights protections. 37.The Petitioners further argue that the Respondents’ actions are not reasonable or justifiable limitations under Article 24. The absence of specific legislation is not a valid reason to limit fundamental rights. To the Petitioners’ minds, the speculative fear of administrative chaos advanced by the Respondents is not supported by any evidence. The fact that the Respondents have already changed the sex marker for an intersex person (FRK) demonstrates that the system can accommodate such changes without disruption. The argument that granting the orders would “legalize the LGBTQ community” is said by the Petitioner to be a non‑sequitur and an improper ground for limiting constitutional rights. The Petitioners therefore urge the Court to allow the Petition and grant the prayers sought. 38.In support, the 1st Interested Party (Amka Africa Justice Initiative) filed written submissions in support of the Petition, relying on extensively on the affidavit of S.C discussed elsewhere above. 39.The 1st Interested Party argues that the Respondents have violated Articles 12, 27, 28, 29, 31, 33, and 47, and that the limitations imposed are not reasonable or justifiable under Article 24. 40.The 2nd Interested Party (Jinsiangu Kenya) filed written submissions focusing on the medical and scientific understanding of gender identity, relying on the Expert Report of Dr. Pickstone‑Taylor and the affidavits of KK, TM, and FRK. The 2nd Interested Party urges the Court to recognize that transgender persons do not choose their gender identity and cannot change it through therapy, and that legal recognition is essential for their mental health and dignity. 41.The 3rd Interested Party (Kenya Human Rights Commission) filed written submissions that canvassed the affidavits of AJK and AKK, highlighting the practical consequences of the refusal to change gender markers, including loss of employment and inability to access insurance. The Respondents’ Case 42.The 2nd Respondent filed a Replying Affidavit sworn by Shumary Malleon on 21st February 2022. At Paragraph 9, the Deponent states that:“The issue of intersex and transgender persons is an emerging area that is not provided for in the Births and Deaths Registration Act that the 2nd Respondent is currently grappling with.” 43.At Paragraphs 11 and 12, the Deponent states that the Births and Deaths Registration Act only recognizes the biological aspect of sex, and that in practice the identification of sex during registration is based on physiological features seen by the person attending the birth. 44.At Paragraph 14, the Deponent avers that “the names given to an individual for purposes of registration, at all times automatically match the respective sex of the registered person so much so that any deviation is procedurally flagged out as an error.” 45.At Paragraph 19, the Shumary Malleon states that the Act does not envisage a situation where the biological facts of sex recorded can be altered on demand other than on fact. The 2nd Respondent therefore does not deny that a change may be possible if a factual basis is shown, such as for intersex persons, but argues that gender reassignment on demand is not provided for. 46.The other Respondents, through the Attorney General, filed Grounds of Opposition dated 18th February 2022 but no affidavits. The grounds can be summarized as follows:a.that the Petitioners have not demonstrated how the Respondents have violated their constitutional rights, that the Petition lacks the specificity required by the principle in Anarita Karimi Njeru v Republic (1976-1980) KLR 1272;b.that the 2nd Respondent’s operational statute does not provide for change of sex particulars after registration;c.that the Petition raises a technical matter that may only be dispensed with on medical grounds;d.that if the Court grants the orders sought, it will be compelling the government to “legalize the LGBTQ community”;e.that the Petition is mischievous as it does not clearly spell out to what gender the Petitioners want to change their identity;f.that the Petitioners were clearly assigned a gender mark at birth;g.that the Respondents’ actions are within their statutory mandate;h.that the Petition seeks an order against a “4th Respondent” who is not sued as a party; Andi.that the Court would be overstretching its mandate if the orders are granted and that the Petition is incompetent, misconceived, and an abuse of process. 47.The 2nd Respondent does not deny that a change of particulars may be possible if a factual error is shown. However, the 2nd Respondent argues that the Act does not provide for change of sex on account of gender reassignment, and that sex is a biological fact based on physiological features observed at birth. 48.The 2nd Respondent distinguishes between sex (a prescribed particular) and gender (which the deponent describes as a societal or self‑driven construction that is not physiologically evident and therefore not a prescribed particular). The 2nd Respondent admits that it is “grappling with” the issue of transgender persons and is awaiting guidance from the Kenya Medical Practitioners and Dentists Board, even though the Petitioners have pointed out that the Board has disclaimed any statutory mandate to provide such guidance. 49.Through the Respondents’ collective written submissions filed on 22nd October 2024, the 1st Respondent expands on these grounds. The written submissions argue that Section 10 of Cap 149 requires the person notifying a birth to give the prescribed particulars, including sex, to the best of their knowledge and ability, and that this is based on physiological features. The written submissions rely on the dissenting opinion in NGOs Co‑ordination Board v EG & 4 others, Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR), where it was stated that the word “sex” in the Constitution is used in reference to a person’s sexual anatomy based on sex chromosomes. 50.The Respondents’ written submissions also argue that the law does not contemplate a change of gender marks on account of being transgender, and that what the Petitioners seek is a change based on “feelings,” which is not recognized in law. The submissions also argue that the Petition lacks specificity and that the 3rd Petitioner has not demonstrated that he was denied an ID card. The Respondents urge the Court to dismiss the Petition with costs. Analysis And Determination 51.Having carefully examined the Petition, the affidavits and annexures placed before the Court, the Expert Report, the Grounds of Opposition, the respective written and oral submissions of the parties and Interested Parties, together with the applicable constitutional, statutory, and comparative legal authorities, this Court is satisfied that the following issues arise for determination:i.Whether the Petitioners, as transgender persons, are entitled to the protection of the rights and fundamental freedoms enshrined in the Bill of Rights, particularly under Articles 27, 28, 29, 31, 33, and 47 of the Constitution;ii.Whether the Respondents’ refusal to change the sex or gender markers on the Petitioners’ birth certificates, national identity cards, and passports to align with their gender identity constitutes a violation of those constitutional rights;iii.Whether the Respondents’ actions, including the failure of the 3rd and 4th Respondents to file any replying affidavit or provide any justification, are reasonable and justifiable limitations of the Petitioners’ rights under Article 24 of the Constitution; andiv.What is the proper interpretation of the Constitution and the relevant statutes (Cap 149 and Cap 107) in light of the emerging understanding of gender identity; and what relief, if any, should this Court grant to the Petitioners. Whether the Petitioners, as transgender persons, are entitled to the protection of the rights and fundamental freedoms enshrined in the Bill of Rights, particularly under Articles 27, 28, 29, 31, 33, and 47 of the Constitution 52.This Court is called upon, at the threshold, to determine a foundational question which, though seemingly elementary, is determinative of the entire architecture of this judgment: whether the Petitioners, by virtue of being transgender persons, fall within the protective scope of the Bill of Rights in respect of their gender identity. 53.While the Respondents do not expressly contend that transgender persons are excluded from constitutional protection, the tenor and implication of their arguments that the law does not recognize a change of sex marker based on chosen gender identity necessarily raises the question whether the Petitioners’ asserted identity has any legal relevance within the constitutional order. 54.The starting point is Article 19(3)(a) of the Constitution, which provides that:“the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.” 55.The phrase “each individual” is deliberately unqualified. It admits of no textual limitation based on sex assigned at birth, biological characteristics, or conformity with socially assigned gender categories. 56.Throughout the length and breadth of the Bill of Rights, the Constitution employs deliberately expansive language to ensure the universality of rights protection. This universality is not incidental but foundational to the transformative character of the 2010 Constitution. Pursuant to Article 20(1), the Bill of Rights binds all State organs and all persons. Read together with Article 19(3), it is evident that rights attach to the individual as such, and not to any preconditioned classification of personhood. There is therefore no constitutional basis upon which this Court can carve out an excluded category of persons from the protection of the Bill of Rights, or whom are inherently excluded ab initio from putative coverage under the Bill of Rights. 57.This is not to say that as a individuals or group within the ambit of the Bill of Rights, transgender persons enjoy unlimited rights. With the exception of the rights under Article 25, all other rights in the Bill of Rights can lawfully be subjected to limitations or derogations provided the applicable criteria specified within the Bill of Rights is met. 58.The second constitutional anchor is Article 27(4), which prohibits discrimination on any ground including sex and other status. The use of the term “including” is illustrative rather than exhaustive. This Court is persuaded that discrimination on the basis of gender identity or gender expression falls within the ambit of “sex” and/or “other status” under Article 27(4). Any narrower construction would unduly constrict the constitutional guarantee and render the protection of equality incomplete in its application. The Petitioners are therefore entitled to invoke the full protection of Article 27. 59.The third pillar is Article 28 on human dignity. This Court has consistently recognized dignity as the foundational value of the Constitution and the organizing principle of the Bill of Rights. This position was emphasized by the court in Mango v Director of Public Prosecutions & 3 others [2025] KEHC 3689 (KLR) where the court held as follows: -“…The right to dignity is at the heart of the Constitution. It is the basis of many other rights. The basis is that of recognizing that every person has worth and value and must be treated with dignity. Thus dignity is about the inherent worth and value of a human being, it is the worth and the value that belong to a person by virtue of being a human being. It is the reason why courts have often held the right to dignity as the basis of all other rights and freedoms. It follows that any action which devalues the worth of a person is the violation of the right to dignity.” 60.In the context of gender identity, comparative jurisprudence underscores the nexus between dignity and legal recognition of identity. In Christine Goodwin v United Kingdom (2002) 35 EHRR 18, the European Court of Human Rights held that failure to recognize a transgender person’s gender identity violated the right to respect for private life. The Court noted that the applicant in that case had been subjected to humiliating treatment through the requirement to present identity documents inconsistent with her lived identity. The same constitutional concern arises in the present case. 61.In the same vein, the Petitioners herein and the Interested Parties have placed before this Court evidence of intrusive searches, public exposure, and institutional misrecognition. Such treatment touches on the core of Article 28. To hold otherwise would be to exclude an entire category of persons from the protection of human dignity under the Constitution. 62.The fourth interpretive principle is Article 259(1), which requires the Constitution to be interpreted in a manner that promotes its purposes, values, and principles, advances the rule of law, and permits the development of the law. the Constitution is a living instrument, intended to evolve with social understanding and human experience. The Supreme Court of Kenya in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] KESC 5 (KLR) affirmed the necessity of purposive interpretation in advancing the Constitution’s transformative agenda. 63.Similarly, the High Court of Botswana in ND v Attorney General of Botswana (supra) stated as follows:“A constitution must be interpreted as a living document… Interpreting the Constitution as a living document requires that a text that falls from determination be constrained to have a capacity to adapt to a changing world, otherwise, rights declared in words may be lost in reality.” 64.This Court adopts that interpretive approach. While the framers of the Constitution may not have expressly contemplated the contemporary lived realities of transgender persons, they deliberately employed broad, inclusive language “each individual,” “dignity,” “privacy,” and “gender” so as to ensure that the Constitution remains capable of protecting persons whose circumstances evolve or become better understood over time. A contrary interpretation would improperly freeze constitutional interpretation and application to a fixed point in time, contrary to Article 259 and the demands of a living constitution. 65.The fifth pillar is persuasive international and comparative jurisprudence. While not binding, such materials are expressly admissible under Article 2(5) and (6) of the Constitution to the extent that they inform the development of Kenyan law. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity provide that: “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.” 66.The Inter-American Court of Human Rights in Advisory Opinion OC-24/17 (2017) held that States are required to establish accessible procedures for recognition of gender identity, grounded in self-identification. 67.The Supreme Court of India in NALSA case held that “Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.” 68.These authorities, while not binding, are persuasive insofar as they reflect an emerging global constitutional consensus anchored in dignity, equality, and autonomy. They are considered solely to the extent that they illuminate values already embedded within the Constitution of Kenya, 2010. 69.This Court emphasizes that its determination is grounded primarily in the text, structure, and values of the Constitution of Kenya, 2010. Comparative and international jurisprudence is relied upon only as interpretive aid and not as an independent source of rights. 70.The Respondents have not directly contested the proposition that transgender persons are entitled to constitutional protection. Their objections are directed principally at the absence of statutory recognition of sex marker changes and the alleged lack of a formal legal framework. However, the logic of their position would render gender identity legally irrelevant, with the effect of excluding transgender persons from the full enjoyment of constitutional guarantees. This Court does not accept that consequence, as it would be inconsistent with the text, structure, and values of the Constitution. 71.The Petitioners are individuals before this Court. They are citizens entitled to the full protection of the Constitution. Their gender identity neither diminishes nor conditions their constitutional entitlements. On the contrary, it is precisely in circumstances of legal and social vulnerability that constitutional protection is most necessary. Accordingly, this Court finds and holds that the Petitioners, as transgender persons, are entitled to the full protection of the Bill of Rights, including but not limited to Articles 27, 28, 29, 31, 33, and 47 of the Constitution. Whether the Respondents’ refusal to change the sex or gender markers on the Petitioners’ birth certificates, national identity cards, and passports to align with their gender identity constitutes a violation of their constitutional rights 72.The Court now turns to the central inquiry in this Petition: whether the Respondents’ refusal to amend the sex or gender markers on the Petitioners’ birth certificates, national identity cards, and passports so as to align with their gender identity amounts to a violation of their constitutional rights. 73.The evidentiary record before this Court is detailed, consistent, and largely uncontroverted in material respects. Each of the Petitioners, as well as deponents from the Interested Parties’ various and respective affidavits, has set out a coherent account of lived experience under the current legal and administrative regime. 74.The Court accepts that gender dysphoria is a recognized medical condition, as evidenced by medical reports from Mathari Hospital (exhibit “AMI-3”), Dr. Kemunto S.B. (exhibit “TMM-7”), and other psychiatric assessments (exhibits “KK-6” to “KK-9”). 75.The Court further finds that the Petitioners have undertaken social transition and, in some cases, medical transition; and present and live in accordance with their affirmed gender identity namely, the 1st and 2nd Petitioners as women, and the 3rd Petitioner as a man. It is further not in dispute that the Petitioners have lawfully changed their names through Deed Poll and gazette notice, yet continue to be issued identity documents reflecting their sex assigned at birth. 76.The first and most profound constitutional inquiry arises under Article 28 on human dignity. Dignity is not merely aspirational. It is enforceable and foundational to the entire constitutional order. In NALSA (Supra), the Supreme Court of India held that the right to dignity is an essential facet of the right to life and inheres in all persons. The evidence before this Court demonstrates that the continued misalignment between the Petitioners’ identity documents and their lived gender identity results in repeated, foreseeable, and systemic indignities in public and private life. 77.This is illustrated by the unchallenged accounts of the Petitioners and deponents presented by the Interested Parties. S.C was compelled to undergo a strip search in the presence of male police officers who subjected her to ridicule. KK was publicly humiliated at the (Redacted: a tier-one Parastatal) offices in circumstances that exposed her private medical history to bystanders. AJK was subjected to a strip search in (Redacted: foreign African airport) during a security screening. These incidents are not isolated inconveniences, they reflect a structural condition in which identity documents become instruments of exposure rather than recognition. Identity documents are intended to facilitate identification and dignity in civic life, not to trigger suspicion, ridicule, or forced disclosure. 78.The High Court of Botswana in ND v Attorney General (Supra) aptly captured this principle when it held that “the recognition of our citizenship and personal identity by the state which includes the ability to have access to proper identification is at the core of our humanity and dignity.” This Court adopts that reasoning as consistent with Article 28 of the Constitution. 79.The second inquiry concerns Article 31 on the right to privacy. That right protects against the unnecessary disclosure of personal and intimate information. On the evidence before the Court, the current administrative regime effectively compels transgender persons, on a repeated basis, to disclose highly sensitive personal and medical information in ordinary civic interactions in a way that is not required of non-transgender persons. 80.The Court accepts the evidence of TM, who described repeated intrusive questioning by bank officials regarding his genital anatomy and medical history. The Court also accepts the account of AMI, who testified that she was required at a hospital eye clinic to disclose intimate details of her body to non-medical administrative staff as a precondition for receiving services. 81.While the State has a legitimate interest in verifying identity, that interest must be balanced against the constitutional protection of privacy. There is no rational necessity for identity verification processes to expose individuals to invasive interrogation regarding their bodies or medical transition. The harm arises not from identity verification itself, but from the structural mismatch between identity documents and lived gender identity. A system that requires repeated disclosure of intimate bodily information in routine transactions constitutes an unjustified limitation of Article 31. 82.The persuasive reasoning of the European Court of Human Rights in Christine Goodwin v United Kingdom (2002) (Supra) is instructive. In that case, the Court held that failure to legally recognize a transgender person’s gender identity violated Article 8 of the European Convention on Human Rights. While not binding, the reasoning is consistent with the privacy protections under Article 31 of the Constitution and is adopted by this Court for its persuasive value. 83.The third inquiry arises under Article 27 on equality and freedom from discrimination. The Petitioners have demonstrated differential treatment in the administration of identification systems. On the evidence, cisgender persons are routinely issued identity documents that correspond with their outward presentation without contest or further inquiry, whereas transgender persons are subjected to additional procedural and evidentiary burdens. 84.The Respondents have not provided a cogent justification for this differential treatment. In particular, no rational distinction has been demonstrated between transgender persons who have lawfully changed their names and provided medical evidence of gender dysphoria, and intersex persons such as FRK, who have been permitted to effect changes to sex markers on identification documents. 85.The Court notes further that the 2nd Respondent’s Replying Affidavit concedes that the governing statute does not define “sex,” yet advances an interpretation anchored solely in biological assignment at birth. The 1st Respondent’s contention that granting the orders would “legalize the LGBTQ community” is misconceived, as the issue before this Court is not conduct or identity politics, but the constitutional accuracy of State-issued identification documents. 86.Discrimination under Article 27(4) must be interpreted purposively to include discrimination on the basis of gender identity. Any narrower interpretation would render the equality guarantee hollow in its application to transgender persons. The Court in SC v Director of Public Prosecutions & 3 others Amka Africa Justice Initiative & another (Interested Parties) [2025] KEHC 11929 (KLR) recognized that transgender persons face distinct forms of discrimination requiring constitutional redress. 87.The fourth inquiry concerns Article 29 on freedom and security of the person, including the freedom from cruel, inhuman, or degrading treatment ( Article 29(f). The Court has already described instances of intrusive searches, public exposure, and humiliating treatment. The legal question is whether such treatment, in context, reaches the constitutional threshold of degradation. 88.This Court finds that where individuals are systematically subjected to humiliation, forced exposure of intimate bodily information, and public ridicule as a direct consequence of State-issued identification processes, such treatment may, in appropriate circumstances, amount to degrading treatment within the meaning of Article 29. The reasoning of the European Court of Human Rights in Christine Goodwin v United Kingdom (Supra), while arising under a different constitutional instrument, is consistent with this conclusion insofar as it recognizes the cumulative dignity harm arising from legal non-recognition. 89.Finally, the Court considers Article 47 on fair administrative action. The evidence demonstrates that the Petitioners engaged the relevant State organs over extended periods, in some cases spanning more than a decade, seeking administrative recognition of their gender identity in official documents. 90.The Court notes, in particular, that AMI first engaged the 3rd Respondent in 2013. The responses, where provided, were characterized by delay, procedural uncertainty, and reliance on the absence of a statutory framework. The 2nd Respondent’s position that it awaited guidance from the Kenya Medical Practitioners and Dentists Board is undermined by the Board’s own disavowal of any such a mandate on its part. 91.Administrative inaction or prolonged delay in the absence of a clear legal framework cannot be justified where constitutional rights are at stake. The Court further notes that the 3rd and 4th Respondents filed no replying affidavits, and accordingly the factual averments against them remain entirely uncontroverted. 92.In these circumstances, the Court finds that the Respondents’ conduct, taken cumulatively, falls short of the standards of expeditious, efficient, lawful, and procedurally fair administrative action required under Article 47. 93.In sum, the Petitioners have demonstrated and proved violations of their rights under the outlined Articles of the Bill of Rights. Whether the Respondents’ actions, including the failure of the 3rd and 4th Respondents to file any replying affidavit or provide any justification, are reasonable and justifiable limitations of the Petitioners’ rights under Article 24 of the Constitution 94.Having found that the Respondents’ conduct results in violations of the Petitioners’ constitutional rights, the Court must now determine whether such limitations, if any, are nevertheless reasonable and justifiable under Article 24 of the Constitution. The burden of justification lies squarely upon the State. That burden is not discharged by bare assertion; it must be supported by evidence, legal rationale, and demonstrable proportionality. In the present case, the Respondents have failed to discharge this burden. 95.The Respondents advance two principal justifications: first, the absence of an express statutory framework under the Births and Deaths Registration Act and the Registration of Persons Act; and second, a generalized apprehension that recognition of gender marker changes for transgender persons may cause administrative confusion or “legalize the LGBTQ community.” The Court evaluates these justifications against the criteria set out in Article 24(1), including the nature of the right limited, the importance and purpose of the limitation, the extent of the limitation, the rational connection between means and purpose, and the availability of less restrictive means. 96.The first justification on the absence of express statutory provision is, in constitutional terms, insufficient. the Constitution is the supreme law of the Republic under Article 2(1), and the Bill of Rights constitutes an integral framework for all State action. The absence of legislative detail cannot be invoked to defeat constitutional guarantees. 97.This principle has been authoritatively affirmed by the Court of Appeal in Kenya National Examinations Council v Republic & 2 others [2019] KECA 493 (KLR), where the Appellate Court stated: -“ 56.Before we pen off, there is the contention that the lower court waded into a policy and legislative arena and that the judge failed to keep his mind alive to the cultural realities of the Kenyan society. There is, of course, need for government, and Parliament in particular to address in a holistic manner the interests of minorities such as transgender persons. Other jurisdictions have taken that approach. There is for instance the Gender Recognition Act in UK that deals with gender reassignment. It cannot be the case that until there is a policy and legislative framework in place, persons like A are without recourse to secure their dignity guaranteed under the Constitution. As the learned Judge noted: ‘Human dignity is that intangible element that makes a human being complete. It goes to the heart of human identity. Every human has a value. Human dignity can be violated through humiliation, degradation or dehumanisation. Each individual has inherent dignity which our Constitution protects. Human dignity is the cornerstone of the other human rights enshrined in the Constitution.” 57.In effect, lack of policy or legislative framework cannot be a bar for the court to enforce constitutional rights.” 98.This holding is binding on this Court and dispositive of the Respondents’ first justification. The absence of an express statutory mechanism in the Births and Deaths Registration Act (Cap 149) or the Registration of Persons Act (Cap 107) cannot, in of itself, justify a limitation of constitutional rights. Statutory silence is not a prohibition, particularly where the Constitution, properly interpreted, requires a rights-consistent outcome. 99.The Court further notes that the Respondents’ reliance on legislative absence is undermined by their own institutional position. As reflected in the letter dated 23rd October 2018 (exhibit “AMI-29b”), the Attorney General had advised that such matters ought to be approached through the prism of fundamental rights, including dignity and health. No cogent explanation has been provided for the departure from that constitutional guidance issued by the Principal Legal Advisor of the Government. A failure to legislate cannot be transformed into a justification for ongoing rights violations. We do not enjoy fundamental rights and freedoms only if Parliament has enacted legislation on the same, neither can our fundamental rights and freedoms be limited or denied in anticipation that Parliament may at some future point in time put in place statutory limitations or exclusions. 100.In this regard, the Court is guided by comparative proportionality reasoning, including Samuel Manamela & Anor v The Director General of Justice (CCT 25/99), which underscores that any limitation must be demonstrably reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. The Respondents’ reliance on legislative silence fails at the threshold stage of Article 24 analysis and cannot satisfy the proportionality inquiry. 101.The second justification concern over administrative confusion or systemic “disarray” is speculative and unsupported by any evidentiary foundation. The Respondents have not placed before this Court any empirical data, expert evidence, or institutional analysis demonstrating that the recognition of gender marker changes for transgender persons would impair the integrity of the national registration system. Constitutional limitations cannot be grounded in conjecture or untested apprehension. 102.By contrast, the Petitioners have adduced evidence demonstrating that the State already possesses functional administrative mechanisms for amending sex markers in appropriate circumstances. The affidavit of FRK illustrates that the Respondents have previously effected changes to both name and sex markers in the case of an intersex person. That fact is material: it demonstrates that the administrative system is capable of accommodating such changes without institutional collapse. 103.It was incumbent on the Respondents to explain why sex markers can be changed for intersex persons but not for transgender persons, particularly those whom had completed the Deed Poll and gazette notice process through the very same Respondents and been issued with new names. The Respondents did not provide a justification for this differential treatment. 104.The Respondents’ further submission that recognition would “legalize the LGBTQ community” is not a constitutional justification within the meaning of Article 24. It is a unsupported and non-permissable characterization devoid of legal content and does not engage with the structured proportionality analysis required under the Constitution. 105.The legitimate State interest in maintaining an accurate civil registration system is not in dispute. However, accuracy cannot be reduced to biological assignment at birth where subsequent legal identity, supported by medical and psychosocial evidence, demonstrates a different lived reality. A constitutional register is not a static record of initial observation but a system of legal identification that must remain responsive to constitutionally cognizable identity, as has been demonstrated in the case of intersex persons. 106.Less restrictive means are also readily available and already partially in use within the registration framework, including individualized assessment supported by medical and legal documentation. A blanket refusal, express or through inertia, to consider applications by transgender is therefore not the least restrictive means of achieving administrative integrity rather, it is a disproportionate measure that fails the strictures of Article 24(1). 107.In the Supreme Court’s decision in Non-Governmental Organizations Co-Ordination Board -v- Eric Gitari & 5 Others [ Supreme Court Petition No. 16 of 2019] our nation’s apex court was clear that while its judgement was not a carte blanche license to LGBTQ relations , it was a firm statement of their human right to associate and enjoy freedom from discrimination. Drawing from that, it is incumbent on this Court to similarly uphold the rights of the Petitioners and persons in similar circumstances, particularly in light of the failure by the Respondents to justify those limitations as well as the differential treatment between intersex persons on one hand and transgender on the other. 108.Accordingly, the Court finds that the Respondents have failed to justify the limitation of the Petitioners’ rights. The impugned conduct is neither reasonable nor justifiable in an open and democratic society based on human dignity, equality, and freedom, and is therefore unconstitutional. What is the proper interpretation of the Constitution and the relevant statutes (Cap 149 and Cap 107) in light of the emerging understanding of gender identity, and what relief, if any, should this Court grant to the Petitioners? 109.The final issue for determination concerns the proper interpretation of the Constitution of Kenya, 2010 and the applicable statutory framework, particularly the Births and Deaths Registration Act (Cap 149) and the Registration of Persons Act (Cap 107), in light of evolving understandings of gender identity. This Court is enjoined by Article 259(1) of the Constitution to interpret the Constitution in a manner that promotes its purposes, values, and principles, advances the rule of law and permits the development of the law. 110.The era of rigid, purely literal constitutional interpretation has long passed. the Constitution of Kenya, 2010 is a transformative charter and must be construed as a living instrument capable of responding to changing social realities and the evolving understanding of human dignity, identity, and autonomy. 111.The High Court of Botswana in ND v Attorney General (supra) correctly articulated this principle, stating that:“A constitution must be interpreted as a living document. On this view the Constitution is understood to grow and evolve as the conditions, needs and values of our society change… Interpreting the Constitution as a living document requires that a text that falls from determination be constrained to have a capacity to adapt to a changing world, otherwise, rights declared in words may be lost in reality.” 112.This Court fully adopts that approach. While the Constitution was promulgated in 2010, and while the lived realities of transgender persons may not have been extensively ventilated at the time, the Constitution deliberately employs broad and enduring language dignity, equality, privacy, and gender so as to remain responsive to evolving understandings of human identity. To interpret it otherwise would freeze constitutional meaning in a single timeframe, contrary to its transformative design. 113.For avoidance of doubt, this Court is not called upon to resolve philosophical, theological, or sociological debates regarding sex or gender. The questions are narrower and legal in character:a.whether the State, in the exercise of statutory powers relating to civil registration and identity documentation, may maintain records in a manner that results in continuing violations of constitutional rights, where the statutory framework is capable of being applied in a constitutionally compliant manner; andb.whether a public body can through silence, inertia, or reliance on the absence of enabling law refuse to change sex markers on identification documents for transgender persons while doing so for intersex persons. 114.Section 28 of the Births and Deaths Registration Act (Cap 149) empowers the Principal Registrar to correct any error or omission in a register. The central question is not whether the original entry at birth was incorrect or unlawfully made. There is no allegation of fraud or procedural irregularity at the point of registration. Rather, the issue is whether the statutory power of correction may lawfully and constitutionally be exercised where subsequent medical, psychological, and social developments demonstrate that continued reliance on the original entry results in ongoing infringement of constitutional rights. 115.Read purposively and in conformity with Articles 27, 28, 31, and 47 of the Constitution, Section 28 is sufficiently broad to permit corrections necessary to ensure that civil registration records remain accurate, functional, and constitutionally compliant. In the absence of express statutory prohibition, administrative discretion must be exercised in accordance with the Bill of Rights. 116.A civil register is not a static archive of past facts, it is a continuing legal instrument used to identify persons in their ongoing interaction with the State and society. Its constitutional function is not exhausted at the point of initial entry. 117.For purposes of Section 28 and civil registration generally, and in light of Articles 27, 28, 31, and 47, an entry may be factually accurate at the time of registration yet subsequently become constitutionally deficient where it no longer reflects the legal identity through which the individual is recognized in law and/or how they wish to be seen by society. In such circumstances, the continued maintenance of the original entry results in an omission namely, the omission to reflect the individual’s current and legally cognizable identity. 118.This interpretation does not negate biological sex as a concept in law or medicine. It is concerned solely with the constitutional permissibility of the exercise of statutory discretion in civil registration so as to avoid continuing violations of fundamental rights. 119.This construction is consistent with this Court’s earlier finding under Article 24 that a case-by-case administrative mechanism constitutes a less restrictive means of achieving the State’s legitimate objectives. 120.This Court also reiterates, for the umpteenth time, that the Respondents already apply such processes and mechanisms for intersex persons, but have not shown any lawful basis as to why the same cannot be applied equally to transgender persons. 121.The 1st Respondent’s preliminary objection based on the principle in Anarita Karimi Njeru supra is noted. While that principle remains an important safeguard requiring precision in constitutional pleadings, it must not be applied mechanistically so as to defeat substantive justice. 122.In the present case, the Petition, read together with the supporting affidavits and annexures, identifies with sufficient clarity the constitutional provisions alleged to have been violated Articles 27, 28, 29, 31, 33, and 47 and the manner in which those violations are said to have occurred, including refusal to amend identity documents, resulting in harassment, forced disclosure of private information, and denial of services. 123.The Respondents were therefore fully aware of the case they were required to meet and have addressed it comprehensively on the merits. The preliminary objection is accordingly dismissed. 124.This Court is conscious of the constitutional boundaries of judicial authority and does not purport to legislate or to establish a comprehensive statutory framework governing changes to sex or gender markers in civil registration records. This decision is also issued based on the current state of the law, and the Court notes that Parliament and the relevant State agencies may, if they deem it appropriate, develop administrative or legislative measures to provide clarity, consistency, and uniformity in the processing of applications of a similar nature, one way or another. 125.The Court’s mandate is confined to determining whether the impugned administrative acts and omissions are consistent with the Constitution and the applicable statutory framework, and to granting appropriate relief under Article 23(3) where a violation is established. The relief granted herein is therefore limited to ensuring that the Respondents exercise their statutory powers in a manner that is lawful, reasonable, procedurally fair, and consistent with the Bill of Rights. 126.This Court does not prescribe the detailed policy architecture or administrative minutiae of any future framework, nor does it compel Parliament to enact specific legislation. However, such limitation of judicial role does not preclude the issuance of structural or supervisory relief where necessary to secure effective compliance with constitutional obligations. It merely affirms that existing statutory discretion must be exercised in a manner that does not result in continuing violations of constitutional rights.Conclusion“There’s power in naming yourself, in proclaiming to the world that this is who you are.” – Janet Mock, Author 127.This Court reiterates that constitutional adjudication is not an abstract exercise in legal reasoning, but a mechanism for vindicating rights where infringement has been demonstrated and no lawful justification has been established. 128.In the present case, the Court has determined, in the analysis above, that the Respondents’ refusal to amend the Petitioners’ sex or gender markers in official identification documents results in continuing violations of their rights under Articles 27, 28, 29, 31, 33 and 47 of the Constitution as outlined above. 129.The Court has further determined that the impugned limitations do not satisfy the requirements of Article 24, as they are neither reasonable nor justifiable in an open and democratic society founded on human dignity, equality and freedom, and are not the least restrictive means of achieving the State’s legitimate objectives. 130.It follows that the Petitioners are entitled to have State administrative systems applied in a manner that accords with their constitutional rights to dignity, equality, privacy, and fair administrative action, including where necessary the correction or amendment of identity records to prevent continuing constitutional harm. 131.the Constitution of Kenya, 2010, properly interpreted, requires that statutory discretion in matters of civil registration be exercised in a manner that is consistent with the Bill of Rights, and that administrative silence, delay, or statutory incompleteness cannot operate so as to defeat constitutional entitlements. 132.Our Supreme Law also demands that where there is differential treatment, such as between intersex persons on one hand and transgender persons on the other, a legally acceptable justification be advanced; otherwise, the same would amount to non-permissible discrimination. In the present case, no such justification was advanced and as such transgender persons must be accorded equal treatment, enjoyment of rights, and protection under the law in the same or similar manner as with intersex persons. 133.Accordingly, the Petition succeeds. The orders set out hereafter are issued pursuant to Article 23(3) of the Constitution as the necessary legal consequence of the findings of this Court. Constitutional rights cannot be limited by administrative whim, nor can their enforcement be postponed pending legislative intervention. 134.This determination is confined to the constitutional validity of the impugned administrative acts and omissions on the evidentiary record before this Court; not any wider questions. the Constitution demands no less. 135.Accordingly, this Court makes the following orders:a.The Preliminary Objection be and is hereby dismissed;b.A Declaration be and is hereby issued that the Births and Deaths Registration Act (Cap 149) and the Registration of Persons Act (Cap 107), when interpreted in a manner consistent with the Constitution, do not expressly prohibit the consideration and determination of applications for alteration of sex or gender markers on civil registration documents, and that the Principal Registrar is entitled to exercise the powers under Section 28 of Cap 149 in a manner that is consistent with the Bill of Rights;c.A Declaration be and is hereby issued that the Respondents’ refusal to amend or consider the amendment of the sex or gender markers on the Petitioners’ birth certificates, national identity cards, and passports constitutes a violation of the Petitioners’ rights under Articles 27, 28, 29, 31, 33, and 47 of the Constitution;d.An order of certiorari be and is hereby issued removing into this Court and quashing the decisions of the 2nd and 3rd Respondents refusing the Petitioners’ applications for alteration of sex or gender markers on their birth certificates, national identity cards, and/or passports;e.An order of mandamus be and is hereby issued compelling the 2nd Respondent to receive, consider, and determine the Petitioners’ applications for alteration of sex or gender markers on their birth certificates, in accordance with the Constitution and the principles set out in this judgment, within sixty (60) days from the date hereof;f.An order of mandamus be and is hereby issued compelling the 3rd Respondent to receive, consider, and determine the Petitioners’ applications for alteration of sex or gender markers on their national identity cards, in accordance with the Constitution and the principles set out in this judgment, within sixty (60) days from the date hereof;g.An order of mandamus be and is hereby issued compelling the 4th Respondent to receive, consider, and determine the Petitioners’ applications for alteration of sex or gender markers on their passports, in accordance with the Constitution and the principles set out in this judgment, within sixty (60) days from the date hereof;h.A declaration be and is hereby issued that pending the development of any legislative or policy framework by the relevant State organs, applications for alteration of sex or gender markers shall be considered on a case-by-case basis, in a manner that is procedurally fair, reasonable, non-discriminatory, and consistent with the Constitution, taking into account relevant medical, legal, and administrative material presented by the relevant applicant, one way or the other;i.Each party shall bear its own costs, this being a matter of significant public interest involving questions of constitutional interpretation and the enforcement of fundamental rights.Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026.BAHATI MWAMUYE MBSJUDGEIn the presence of: -Counsel for the Petitioners – Mr. OjiamboCounsel for the Respondents – Mr. KaumbaCounsel for the 1st Interested Party- Mr. NybomaCounsel for the 2nd Interested Party- Mr. NybomaCounsel for the 3rd Interested Party- Ms. MaranyaCourt Assistants - Mr. Martin Mwenda and Mr. Austin