Kenyan court ruling on trans rights could show the way for Africa

Kenya, like other countries in East Africa, lacks a gender-recognition law for transgender persons, which means there is no procedure for people to change their gender markers or names in official documents to align with their gender identity. This can make everyday tasks such as obtaining employment, accessing healthcare, or opening a bank account difficult – or even impossible – to achieve. Furthermore, across the region, authorities have manipulated fraud or public-order laws to target gender expression, violating transgender people’s privacy and dignity. But a historic ruling in the Kenyan city of Eldoret may mark a turning point for trans rights.

The case, SC v Director of Public Prosecutions & Others, dates back to 2019. In June of that year, SC – a transgender woman who identified and lived as a female from childhood and competed as a female athlete – was arrested at a hospital and charged with “personation.” Personation is the crime of falsely representing oneself as another person with the intent to defraud, and it has been misapplied by Kenyan law enforcement to police gender presentation when an official document shows a name, photograph, or sex marker that an official sees as inconsistent with that presentation.

After her arrest, SC was moved between facilities and subjected to strip and cavity searches to “determine” her gender. She was taken for non-consensual medical procedures, including genital inspections and blood draws, and parts of her medical information were exposed to the media without her consent. She petitioned the High Court to declare that state actors and the hospital had violated her rights and to set clear rules for policing, prisons, and healthcare.

On 12 August 2025, the High Court in Eldoret found that the limitations imposed on SC’s constitutional rights – the rights of freedom from torture and cruel, inhuman or degrading treatment or punishment; equality and non-discrimination; dignity; freedom and security of the person; and privacy – could not be justified in an open and democratic society and were unconstitutional. It declared that SC be “notably recognized as a transgender individual.” The High Court affirmed “the right of transgender persons to determine their self-identified gender,” and directed the state to grant legal recognition of such gender identity within Kenya’s legal framework through the enactment of a Transgender Protection Rights Act, or alternatively by complementing the Intersex Persons Bill 2024. It urged immediate provision of appropriate facilities in police stations and prisons for what the Court termed the “third gender.” And it awarded monetary damages against the state respondents and against the hospital for breach of privacy.

Two legal points stand out. First, the judgment turns constitutional rights into operational standards for police stations, detention cells, and clinics. This gives institutions clear guidance on searches, medical consent, and confidentiality when a transgender person is in custody. Second, the Court centres self-identification for transgender individuals. This matters in the African context, where many transgender individuals have limited access to medical doctors and hormone therapy. South Africa’s Alteration of Sex Description and Sex Status Act of 2003 permits sex-description changes but relies on medical reports. Botswana’s courts, by contrast, have ordered changes to gender markers on dignity grounds without requiring surgery. Eldoret aligns more closely with the Botswana trajectory and grounds it in Kenya’s constitutional text.

What this means for Kenya now: First, living openly as a woman or a man does not constitute  “personation.” Second, public hospitals must adopt consent-based protocols and protect medical privacy whenever a person is in state custody. Third, the Kenya Prisons Service needs clear placement, search, and safety rules for transgender detainees, backed by facilities and training. 

Lessons for East Africa and Africa as a whole: Kenya has shown what recognition can look like in a region where legal gender recognition is largely absent and where many transgender people live in hiding and fear. The regional backdrop also includes Uganda’s Anti-Homosexuality Act, 2023, which has led to increased violence and discrimination against transgender Ugandans. For Africa at large, Eldoret supplies a domestic, African blueprint. It joins a growing continental jurisprudence that treats gender identity as a matter of dignity, equality, and privacy, not culture-war theatre. Its message is practical: do not guess at a person’s gender, ask and respect it. Set minimum custody and hospital standards. Protect privacy. Move from ad hoc responses to clear rules. If neighbouring courts, human rights commissions, and ministries take up the reasoning, this could be the start of recognition and protection for all, regardless of gender identity.

Article by Adrian Kibe, KHRC – Equality and Equality focal point to INCLO.