The High Court has ruled that transgender and intersex Kenyans can apply to change sex or gender markers on official identity documents, in a landmark judgment expected to reshape how civil registration agencies handle identity records in the country.
In a ruling delivered virtually on Wednesday, Justice Bahati Mwamuye said government agencies cannot issue blanket rejections to such applications and must instead evaluate each request individually in accordance with constitutional protections on dignity, equality, privacy, and fair administrative action.
Court Says Existing Laws Do Not Bar Gender Marker Changes
The court found that existing laws, including the Births and Deaths Registration Act and the Registration of Persons Act, do not expressly prohibit authorities from considering applications seeking changes on birth certificates, national identity cards, or passports.
Justice Mwamuye stated that gaps or silence in administrative procedures cannot be used as grounds to deny constitutional rights.
“Constitutional rights cannot be limited by administrative convenience,” the judge ruled, adding that courts must interpret the Constitution in a way that protects rights rather than restricts them through rigid procedures.
State Agencies Directed to Process Applications Within 60 Days
Under the judgment, the Principal Registrar, National Registration Bureau, and passport authorities have been directed to receive and determine such applications within 60 days.
The court further ordered that every application be handled fairly, reasonably, and without discrimination, with decisions guided by constitutional standards.
Justice Mwamuye also quashed previous blanket refusals by state agencies to process gender marker change requests, saying the actions violated constitutional protections.
Judge Emphasises Constitutional Rights Over Administrative Procedures
He clarified that the ruling does not create new law, but instead ensures existing administrative powers are exercised within constitutional limits.
“The court’s mandate is confined to determining whether administrative acts are consistent with the Constitution,” he said.
The judgment also warned against dismissing constitutional petitions on procedural technicalities, stressing that courts must prioritise substantive justice where rights violations are alleged.
Ruling Expected to Shape Future Administrative Reforms
Until Parliament develops a clearer legal framework on the matter, the court directed that all applications continue to be processed individually under constitutional principles.
Due to the broader public interest nature of the case, the court ordered each party to bear its own legal costs.
The ruling is expected to influence future reforms in Kenya’s civil registration system and shape how state institutions handle identity documentation involving transgender and intersex persons.
