The legal impunity for gender-based violence against intersex, transgender, and gender diverse persons in Kenya: A legal recognition issue for the African human rights system

Abstract

In 2019, a judge of the Supreme Court of Kenya issued a public apology to an intersex person for a decision the court handed down in 2010. The judge regretted the court’s failure to appreciate the identity and human rights needs of intersex persons in that case. R.M. had petitioned the High Court for redress due to the sexual, psychological, and emotional abuse he had suffered while detained at the state correctional facilities. This case highlighted the various forms of violence that intersex, transgender, and gender diverse persons (“ITGDPs”) experience on account of their gender identity. Studies reveal that gender-based violence against ITGDPs in Kenya is intricately conjoined with a lack of socio-cultural and legal recognition of their gender identities. The exclusion engenders pervasive violence by state actors and private individuals. Despite the growing use of public interest litigation (“PIL”) as a mechanism for pursuing the goals of legal recognition and social, economic, and political emancipation of ITGDPs in Kenya, there is scant improvement in policy and practice. The same lacuna obtains in the African human rights mechanisms. The apology, the research findings and the unyielding PIL create the appropriate occasion for a critical examination of the effects of the assumption on synonymy and binarism of gender and sex espoused by the national and the African human rights system, on sexual and gender-based violence (“GBV”) against ITGDPs in Kenya. This article analyses the nexus and how a lack of legal recognition of ITGDP gender identities and expression aggravates sexual and GBV against the group against the backdrop of the African human rights system.