Legal Issues & Court Rulings

The Transgender Education & Advocacy offers the following legal services to transgender people:

1. Legal services for change of names

2. Legal representation to transgender people who have been victimized as a result of their gender identity or have been mistaken for somebody they are not

3. Legal advice

4. Litigation

 

We strive for a society that respect the human rights of transgender people.

What to do when arrested

1. Remain calm

2. Use the name appearing on your National Identity Card

3. If the police ask for you identity card, kindly give it to them

4. Avoid getting in altercations with the police or on lookers

5. In a polite and firm manner, inform the police you are undergoing sex change therapy and that being a

transgender person is not criminalized; it is a medical condition and what they are doing is illegal. Don’t bribe    them.

6. Call the TEA 0752165113

7. Additionally, call your parents, relative or a friend

8. Request for a cash bail

9. If they are to place you in a cell tell them to place you in solitary confinement or a secured room

10. Don’t give sexual favours to police officers or anyone for security or release

11. When arraigned in a court, don’t plead guilty for a crime you did not commit

Other Scenarios

1. You have been sexually assaulted it is important to do the following:

Guidelines

a. Do not interfere with the scene where the sexual offence has occurred

b. Do not wash the clothes worn during the commission of the offence

c. Do not brush or wash hairs

d. Remember it is important to seek help at the hospital and the police station.

 

WHAT THE VICTIM SHOULD DO:

1. Get to a safe place. Call someone you can trust or a police hotline

2. Do not clean yourself or bathe as this will destroy any evidence that needs to be collected.

3. If possible do not change your clothing. If you have to change your clothing, put the soled clothes in khaki brown bag, or wrap them in a newspaper. DO NOT put the clothes in a polythene/plastic bag as it destroys evidence.

4. If you have to urinate, do it in a clean container and take it to the hospital for laboratory testing.

5. Report immediately to a health facility or police station depending on your condition. You can

report at the hospital without making prior statement at the police station.

6. If you go to a police first, ensure you go to hospital within 72 hours of commission offence.

7. At the police station, report the incident, make a statement and obtain a P3 form. The P3       form    is free of charge.

8. Before signing of the statement at the police station read, read the statement carefully to confirm its contents.

9. Hand over the clothes to the police to preserve as evidence.

10. At the health facility, report to the Casualty or Registration/Triage desk. Do not queue. Get a card and if the survivor is a child, they should be admitted immediately.

WHAT THE COMMUNITY IS EXPECTED TO DO:

1. Reassure the survivor and try to calm her/him down

2. Do not interfere with the scene of the crime. INTERFERING WITH THE CRIME SCENE ISAGAINST THE LAW

3. Assist the survivor emotionally e.g. listen, console, assure and empathize with the survivor, etc.

4. Advise her/him not to bathe and is she/he has to change clothes, then they should be stored in     a paper bag NOT a plastic bag.

5. Take the survivor to hospital/police station. The physical condition of the survivor will determine     where to visit first.

6. If trained, offer trauma counseling for the affected family.

7. Negotiations/reconciliations SHOULD BE DONE IN COURT.

AIDING AND ABETTING A CRIMINAL IS A FELONY AND OBSTRUCTION OF JUSTICE

Procedures to be Following When Attending To A Victim

1. History taking, Examination and Documentation

History taking, examination and documentation are what provide the critical link between theoccurrence and survivor, and the health care and criminal justice systems. This process informs thefilling in of the P3 form which is the document used by the criminal justice system to investigate,arrest and prosecute perpetrators.

2. How to Prevent Pregnancy Resulting from SGBV

Emergency contraceptive (EC) should be offered to all non-pregnant females of child bearing age2 not covered by a reliable form of contraception.

3. HIV Prevention

Post Exposure Prophylaxis (PEP) is offered to HIV negative people after exposure to HIV and thisreduces the chances of infection. It must be initiated as soon as possible within 72 hours. It involves the administration of Anti-Retroviral drugs (ARV’s) for 28 days after the exposure to HIV.

4. STI/RTI Prophylaxis and Management of Physical Injuries

STI/RTI prophylaxis can be started on the same day as emergency contraception, although the doses should be spread out (and taken with food) to reduce side- effects such as nausea. It should preferably be prescribed for the survivor and given for uptake within 24 hours.

5. Hepatitis B Prevention

The generally available Hepatitis B Vaccines do not provide any protection from infection if given after an exposure, but they do provide protection from future exposures. Administration of the toxoid does however provide some protection, after the exposure has occurred.

For more on the management of Sexual Gender Based Violence click on the following link:

http://www.cso-network.org/downloads/CSO%20Network%20SGBV%20Booklet.pdf

Court Case on Gender Identity/Transsexualism

The following cases can act as important legal guided for those in transgender human rights activism.

1. Synthia Kavanagh vs Attorney General (Canada)

The Canadian Human Rights Tribunal handed down an important decision in August 2001 that helps to clarify the rights of transsexuals. The complainant, Synthia Kavanagh, an inmate in a federal men’s prison, alleged that the Correctional Service of Canada had discriminated against her on the basis of sex and disability by not accommodating her needs.

Ms. Kavanagh felt she was a woman trapped in a man’s body. Before her sex reassignment operation, Correction officials refused to move her to a women’s prison, for a time stopped her hormone therapy, and denied her a planned surgery.

2. Sir Ewan Forbes, 11th Baronet

Sir Ewan Forbes of Craigievar (6 September 1912 – 12 September 1991) was the 11th Baronet of Craigievarfrom 1968 to his death, as well as a general practitioner and farmer. At birth, he was christened “Elizabeth Forbes-Sempill”, and officially registered as the youngest daughter of Lord Sempill. After an uncomfortable upbringing, he began living as a man at the start of his medical career in 1945. He formally re-registered his birth as male in 1952, adopting the name of “Ewan Forbes-Sempill”, and was married a month later.

3. Corbett v Corbett (Otherwise Ashley)

The case of Corbett v Corbett, heard in February 1970 with a 1971 decision, is a divorce case which set a legal precedent regarding the status of transsexuals in the United Kingdom. It was brought at a time when the UK didn’t recognise mutual consent as reason enough to dissolve a marriage and Arthur Corbett, the plaintiff, sought a method of dissolving his marriage to the model April Ashleywithout the issue of inheritance rights.

As a consequence, the judge (Lord Justice Ormrod, who was himself a medical man) created a medical ‘test’ and definition to determine the legal status of April Ashley and, by extension, all transsexual people. The result of this test (which defined Ashley, a successful model, as a man) was then taken up and used to define the sex of transsexual people for many purposes until the introduction of the Gender Recognition Act 2004 (which ultimately defined the sex of transsexual people as whatever is on their birth certificate, until such point as a Gender Recognition Certificate corrects the birth certificate – hence for those who do not possess such a certificate, nothing has changed since 1970).

4. Rees v The United Kingdom

5. Wong Chiou Yong v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara

Application for declaration that person is a female

6. Goodwin v. United Kingdom

Goodwin had dressed female since childhood. He married and fathered four children. He worked as a bus driver. He had aversion therapy in 1963, but later was accepted on the program for transsexuals at Charing Cross Hospital, London in 1985.

She started hormones, had vocal cord surgery, and started living full time as female. She had genital surgery paid by the National Health in 1990. However, like all transsexuals in the UK at that time, she was unable to marry as a woman, suffered embarrassment and harassment at new employment when her Nation Insurance Card and birth certificate revealed her previous gender, was unable to draw a pension at the female age of 60 and was obliged to continue National Insurance payment until age 65.

She sued the UK government, and then appealed to the European Court of Human Rights.

This victory was a major push to the Government’s passing the Gender Recognition Act of 2004

7. Price Waterhouse v Hopkins

Ann Hopkins, claimed she was postponed promotion to partnership at the firm for two years in a row based on sex-stereotyping against her gender nonconformity. Often co-workers described her as aggressive, fouled mouthed, demanding, and impatient with other staff members. During her evaluation, some written comments made by supervisory personnel stated that what Hopkins needed was a “course in charm school.”……………….

Many male employees said they would not be comfortable having her as their partner because she did not act the way they believed a woman should. Ann Hopkins resigned from the accounting firm when she was rejected for partnership for the second year, and sued Price Waterhouse for violating her rights under Title VII of the Civil Rights Act of 1964.

(Ann Hopkins is not a transsexual person)

8. LEAH URI WINN-RITZENBERG

Change of name.

The Civil Court imposed a medical certification requirement on Appellant’s name

change, simply because Appellant is transgender and seeks a name more consistent with his

male identity…….The Civil Court’s medical certification requirement creates, as in Halligan, an improper burden

of persuasion that is not justified by the controlling statutes.

Appellant also has a common law right to change his name at will, provided there is no fraud,

misrepresentation, or interference with the rights of others.  Halligan, 361 N.Y.S.2d at 460 (4th Dept. 1974)

(“[A]n individual possesses a broad right to assume a new name at common law and in most instances denial 7

“[T]here is no reason – and no legal basis – for the courts to appoint themselves the

guardians of orthodoxy” regarding the gender association of names.  In re Guido, 771 N.Y.S.2d

789, 791 (N.Y. Civ. Ct. 2003).  Choosing a name to reflect a personal conviction is hardly

unique to transgender people, yet Appellant and amici know of no other petitioners from whom

the Civil Court demands medical evidence in support of their petition.  Courts do not ask for

external corroboration of a petitioner’s personal convictions or religious beliefs and they should

not ask for similar corroboration of a petitioner’s gender identity..

Read on.

9. AB v Western Australia, AH v Western Australia[2011] HCA 42

Bills and Laws

1. The Kenyan Constitution (2010)

2. Identification and Registration of Kenya Citizens Bill, 2011

3. Births and Deaths Registration Bill, 2011

4. Data Protection Bill, 2011

5. Freedom of Information Bill, 2008

6. The Kenya National Human Rights Commission Act, 2011

7. Kenya Citizenship and Immigration Act, 2011

 

Other Important Links

1. Commission for the Implementation of the Constitution (CIC)

2. Kenya Law Reform Commission (KLRC)