A five-year-old intersex child has sued the state seeking legal recognition and protection.
The child, referred to as Baby A, wants an order declaring that all surgery on intersex infants be undertaken only after court's approval.
This is meant to ensure that child's best interest is taken into consideration.
Also sought is an order directing the government to collate data or statistics on all intersex children across the country.
Baby A sued the chief government legal advisor, Kenyatta National Hospital and the registrar general of births and deaths.
The baby was born at KNH on May 3, 2009 with both male and female genitalia.
The hospital officials could not record the sex of the child in question as female or male and ended up putting a question mark as Baby A's sex.
This entry on the child's medical record offends the right to legal recognition and erodes dignity and the child's rights, the court was told.
Baby A has never been issued with a birth certificate, a document that gives legal recognition to an individual.
"The birth certificate is of great legal importance to the life and development of a child given that it is ticket to school admission, issuance of passport, national identity card and employment," the suit papers filed through lawyer John Chigiti read in part.
And as a result of lack of legal recognition intersexual children live in fear of assault, abuse, inequality, exclusion and without dignity in a legal regime that has nothing for them making it impossible to collate data around them.
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Baby A also says intersex children are unable to enjoy all the rights accruing to them as citizens.
Baby A says for intersex children to enjoy rights guaranteed under the constitution to all Kenyans there is need to come up with code or regulations that directly or indirectly govern corrective surgery for intersex children.
The court was told that corrective surgery is intrusive in nature and hence the need for the child's meaningful participation in decision on what sex should be assigned.
"This calls for child's meaningful participation in the decision making process and the child's consent whenever the surgery is not informed by a medical emergency."
The baby wants the court to allow use of pseudo name in the case and hear it in camera.
Baby A's case is the second to be filed in the country seeking legal recognition for intersex. The first one was filed by Richard Muasya, whose case was dismissed by a constitutional court.
