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.