Transgender Kenyans’ efforts to receive birth certificates that reflect their gender identity now hang in the balance, despite several legal victories.

Attorney General Dorcus Oduor has asked the High Court to dismiss a pending case that three trans people have filed. Oduor argues a person is born either “a boy or a girl” and existing laws do not allow for anyone to change their sex in adulthood.

Oduor in her written submission to Justice Bahati Mwamuye also argues gender identity and the government’s issuance of a birth certificate are based on a person’s physical appearance. Her argument, however, exempts intersex people.

The government last month officially recognized intersex people in a Kenya Gazette notice that said they can receive birth certificates with an “I” gender marker. The country’s historic intersex rights law took effect in 2022.

“The existing laws of the land do not contemplate change of gender, and marks of transgender are not a basis for determining one’s gender as either male or female,” Oduor states.  

Oduor further maintains that a person’s feeling they are “unwillingly living in a wrong body” cannot justify changing their gender. Oduor maintains a person’s gender is based on fact — not feelings — and the plaintiffs at birth were registered and named based on their gender status.

Audrey Mbugua, Maurene Muia, and Arnest Thaiya are the three trans people suing Oduor, the Registrar of Births and Deaths, the National Registration Bureau, and Immigration Services Director General Evelyn Cheluget in order to receive amended birth certificates.

The plaintiffs argue the current discrepancy in crucial documents — birth certificates, national identification cards, and passports — has denied them opportunities and rights. They disagree with Oduor’s position on determining one’s sex, arguing the process is “not scientific, but subjective.”

“There are no identifiers of sex or definitions of the biological or psychological components of sex,” the plaintiffs argue. “In any event, such biological components cannot be limited to genitalia only, but also chromosomes, gonads, hormones, and the brain.” 

They further maintain that trans people cannot be forced to live with names of the wrong gender as adults. Oduor, however, maintains that only mistakes, such as spelling errors or parents in ID documents, can be changed and not a gender marker.  

Amka Africa Justice, Jinsiangu (“my gender”) Kenya, and the Kenya Human Rights Commission are among the advocacy groups that have joined the case.

Mbugua, a well-known trans activist, has been pushing for legal rights in the court for more than a decade.

She filed a lawsuit in which she demanded the government identify her as a woman and to be allowed to live as one, not as a male as she was registered at birth. A landmark ruling in 2014 ordered the Kenya National Examinations Council to change Mbugua’s name and replace the gender marker on her academic certificates. 

Mbugua also founded Transgender Education and Advocacy, a group with more than 100 members. A long court battle that ultimately proved successful allowed Transgender Education and Advocacy to become the first publicly-funded trans rights organization in Kenya.

Transgender Education and Advocacy’s initiatives include offering legal aid to trans people seeking to change their names, photos, and gender markers in documents, pushing for legal reforms to end discrimination based on gender identity and expression, and providing economic assistance to trans people who want to overcome poverty and sexual exploitation.

Jinsiangu Kenya, established in 2018, also champions equal access to health care and other basic services without discrimination based on gender identity and expression.

A report that Jinsiangu Kenya released in July 2021 notes 63 percent of trans people surveyed did not have ID documents or records with gender markers that coincide with their gender identity. The report also notes 10 percent of trans people surveyed said officials denied them an ID card or passport, and they were unemployed because they did not have the proper documents.

Japan’s Nagoya High Court on March 7 ruled the lack of legal recognition of same-sex marriages violates the country’s constitution. 

The plaintiffs argued Japan’s Civil Code and Family Registration Act, which does not recognize same-sex marriages, violates the country’s constitution. They cited Article 14, Paragraph 1, which guarantees equality under the law and prohibits discrimination based on factors that include race, creed, sex, or social status. The plaintiff also invoked Article 24, Paragraph 2, which emphasizes that laws governing marriage and family matters must uphold individual dignity and the fundamental equality of the sexes.

The plaintiffs sought damages of 1 million yen ($6,721.80) under Article 1, Paragraph 1, of the State Redress Act, which provides for compensation when a public official, through intentional or negligent acts in the course of their duties, causes harm to another individual. The claim centered on the government’s failure to enact necessary legislation, which prevented the plaintiff from marrying.

The court noted same-sex relationships have existed naturally long before the establishment of legal marriage. It emphasized that recognizing such relationships as legitimate is a fundamental legal interest connected to personal dignity, transcending the confines of traditional legal frameworks governing marriage and family.

The court further observed same-sex couples encounter significant disadvantages in various aspects of social life that cannot be addressed through civil partnership systems. These include housing challenges, such as restrictions on renting properties, and financial institutions refusing to recognize same-sex couples as family members for mortgages. Same-sex couples also face hurdles in accessing products and services tailored to family relationships. While the court deemed the relevant provisions unconstitutional, it clarified that the government’s failure to enact legislative changes does not constitute a violation under the State Redress Act.

The lawsuit, titled “Freedom of Marriage for All,” brought together a large coalition of professionals, including more than 30 plaintiffs and 80 lawyers. They filed six lawsuits in five courts throughout Japan.

“We filed these lawsuits on Valentine’s Day, Feb. 14, 2019, in Tokyo, Osaka, Nagoya, and Sapporo, and in September of that year in Fukuoka,” noted Takeharu Kato, director of Marriage for All Japan. “Then, in March 2021, the Sapporo District Court handed down the first ruling declaring the current laws unconstitutional, which received extensive worldwide media coverage. Subsequently, the Osaka District Court unfortunately ruled that the current law is constitutional, but among the 10 rulings handed down so far, nine have ruled that not recognizing marriage equality is unconstitutional.”

Kato is a lawyer who is part of the legal team in the Sapporo case. He is also a board member of Marriage for All Japan, a marriage equality campaign.

“The MFAJ (Marriage for All Japan) is fully supporting the lawsuits by publicizing the current status of the trials and the rulings in our websites and social networks, setting up press conferences at the time of the rulings,” Kato told the Washington Blade. “We also make the best of the impact of the lawsuits in our campaign by holding events with the plaintiffs of the lawsuits and inviting them to the rally at Diet (the Japanese parliament) members’ building.”

Kato said the campaign has significantly shifted public opinion, with recent polls indicating more than 70 percent of Japanese people now support marriage equality — up from approximately 40 percent before Marriage for All Japan launched. He also noted 49 percent of Diet members now back marriage equality.

Japan is the only G7 country that does not legally recognize same-sex couples. Taiwan, Nepal, and Thailand have extended full marriage rights to gays and lesbians.

Expressing disappointment, Kato said many Japanese politicians continue to resist marriage equality, despite overwhelming public support. Kato added Marriage for All Japan expects the Supreme Court to rule on their lawsuits in 2016.

“We believe that the Supreme Court will also rule that the current laws are unconstitutional,” he said. “However, the Supreme Court’s ruling alone is not enough to achieve marriage equality under the Japanese legal system. We should put more and more strong pressure on the Diet to legalize marriage equality in Japan as soon as possible.”

Several municipalities and prefectures issue certificates that provide limited benefits to same-sex couples, but they fall short of equal legal recognition.

Prime Minister Fumio Kishida’s government has faced mounting pressure on the issue as public support for marriage equality has surged in recent years. Kishida has yet to push reforms within his own party; encountering fierce opposition from its traditional leadership.

His government in June 2023 passed Japan’s first law addressing sexual orientation and gender identity, aiming to “promote understanding” and prevent “unfair discrimination.” Activists, however, widely criticized the legislation on grounds it fails to provide comprehensive protections or extend marriage rights to same-sex couples.

Following their recent protests at school board meetings in Virginia to challenge the Trump-Vance administration’s anti-LGBTQ policies, a student-led rights group on Wednesday outlined plans to continue their actions.

The Pride Liberation Project released a statement in early March announcing their “March Month of Action” after their first round of protests. The Pride Liberation Project on Wednesday issued another press release that provided additional details.

“Queer students will rally at local school board meetings across Virginia, as they call for education leaders to reject the Trump-Musk’s administration escalating attacks against queer people.” said Conifer Selintung on behalf of the Pride Liberation Project. “Since taking office, the Trump-Musk administration has ignored the real issues facing our schools — like declining reading scores and the mental health crisis — and tried to bully queer students into the closet. Alongside other hateful attacks, they’ve attacked nondiscrimination protections, banned gender-affirming care, and whitewashed history.”

The Pride Liberation Project press release also included a statement from Moth, an LGBTQ student at McLean High School.

“I want to be able to go to school as myself, just like any other student,” said Moth. “To do that, I need my school board to stand up to bullies.”

The Pride Liberation Project has also released a schedule of rallies it plans to hold this month.

The first rally took place at the Prince William County School Board meeting in Manassas on Wednesday. A second event took place at the Roanoke County School Board meeting on Thursday.

Additional rallies are scheduled to take place in Rockingham and York Counties on March 24, Loudoun County on March 25, and Fairfax County on March 27.