Transgender activist Audrey Ithibu Mbugua has won a battle against the Kenya National Examinations Council after the Appellate court upheld a decision compelling them to change her academic certificates to reflect ‘her’ new identity.
The Court of Appeal said they were not persuaded by Knec to overturn the High Court’s decision, which ruled in Audrey's favour.
"All in all, we are not persuaded that the appellant has established a basis for this court to interfere with the decision of the lower court," Justices Philip Waki, Gatembu Kairu and Otieno Odek ruled.
The judges dismissed the claim that Justice Weldon Korir had waded into the policy and legislative arena and ignored cultural realities of the society.
The judges said there is, of course, need for the government, and Parliament in particular, to address in a holistic manner the interests of minorities such as transgender persons.
However, such minorities cannot wait until there is a policy and legislative framework in place, to get recourse to secure their dignity guaranteed under the Constitution.
Audrey, formally known as Andrew Ithibu Mbugua, was born and raised as a male. As Andrew, he attended Kiambu High, a boys’ school, where he sat his KCSE in 2001 and scored a mean grade of A- (minus).
Like other certificates, Ms Mbugua's was inscribed with the mark, M, signifying the male gender.
And since October 2008, Audrey has received medical treatment at Mathare hospital for gender identity disorder and depression.
Dr Catherine Syengo Mutisya, the deputy medical superintendent Mathare, stated that Audrey had gender identity disorder (trans-sexual) and had already began the medical transition.
Dr Mutisya said Ms Mbugua is still distressed by the challenge she is encountering as a result of her condition and faces a lot of stigma as a result of having her certificates and identification documents referring to her as male even though she has partly transitioned to female.
In January 2012, by gazette notice Ms Mbugua published by a deed poll, she renounced the name Andrew and assumed ‘Audrey Ithibu Mbugua’.
She then wrote to Knec requesting to effect the changes in her certificate. The council at first appeared to agree but later dismissed her request, forcing Ms Mbugua to move to court.
Justice Korir ruled in her favour but Knec appealed, arguing that the certificate was issued in accordance with the registration particulars “under which he registered for the examination”.
Knec further doubted that the gender transition Ms Mbugua claimed to have been undergoing was sanctioned by law and that there is no requirement in law for it to effect a name change.
The government further said t it was incumbent upon Audrey, as is normal practice, to prove to potential employers or institutions that the names appearing in the certificate do indeed refer to her.
Knec said granting the orders that it did, and having regard to the complexity of the issues relating to trans-sexualism, the court wrongly waded into legislative territory; that the issues presented are ill suited for determination by the court and require comprehensive legislation. The Judges said the inclusion of a gender mark in the certificate, as observed by Justice Korir was not a requirement. But the Judges were quick to state that that was not to say the inclusion of the gender mark in any way violated statute or the regulations. "Indeed, the appellant may have good reason for including it even though it is not among the mandatory requirements," the Judges said.