Lesbian, gay, bisexual, transgender and queer (LGBTQ) people in Kenya face significant challenges not experienced by non-LGBTQ residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices (termed "gross indecency") are a felony under Section 165 of the same statute, punishable by five years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same-sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.
Transgender people have historically suffered discrimination, and there are no statutory provisions relating to transgender rights. However, a landmark ruling by the High Court of Kenya in August 2025 found in favor of transgender rights, ruling that violations of certain rights of a specific transgender person, "including freedom from torture and cruel, inhuman or degrading treatment, equality and non-discrimination, dignity, freedom and security of the person, and privacy were unconstitutional." The court ordered the national parliament to implement "the enactment of the Transgender Protection Rights Act, or, in the alternative, the amendments of the Intersex Persons Bill 2024".
Kenyan society is highly conservative, and a large majority of people hold negative views of LGBT people. In 2023, Pew Research Center estimated that over 90% of Kenyans oppose same-sex marriage. Nevertheless, public support has slowly been growing and various organizations are working to protect and improve LGBTQ rights.Lucas Barasa and Joy Wanja (18 May 2010), "Kenya gay demand recognition" , Saturday Nation.
Laws about same-sex sexual activity
Statutes Expressions of homosexuality are illegal under Kenyan statutes and carry a maximum penalty of 14 years' imprisonment, or 21 years under certain aggravating circumstances. Sex acts between women are mentioned under the gender-neutral term "person" in Section 162 of the Penal Code and are enforced equally. On 28 November 2010, Prime Minister Raila Odinga called for women or men engaging in same-sex activity to be arrested."Kenya gay activist criticises Odinga crackdown threat ", BBC News - Africa, 29 November 2010, accessed 30 November 2010
The Kenyan Penal Code of 1930, as revised in 2006, provides as follows: Section 162. Unnatural offenses. Any person who – (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years: Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if – (i) the offence was committed without the consent of the person who was carnally known; or (ii) the offence was committed with that person's consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act. Section 163. Attempt to commit unnatural offenses. Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years. Section 165. Indecent practices between males. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
The Kenya Human Rights Commission reported in 2011 about how these statutes have indirect but very adverse effects on LGBTI persons, saying, Same sex sexual practices remain criminalized ... and even though there are few convictions based on sections 162 to 165 of the Penal Code ..., LGBTI persons are routinely harassed by the police, held in remand houses beyond the constitutional period without charges being preferred against them, and presented in court on trumped-up charges. Closely related to this, is a cartel of corrupt police officials who routinely extort and blackmail LGBTI persons with the threat of arrest and imprisonment if they do not give those bribes. ... LGBTI sex workers, mostly MSMs [men who have sex with men] are often asked for bribes and sexual favours by male police officers in exchange for their freedom and security. ... Those who fail to give bribes or sexual favours are charged with tramped up charges and sometimes raped by state security officers.In a 2020–2021 report, the Nairobi-based National Gay and Lesbian Human Rights Commission reported incidents of police demanding bribes.
Constitutional provisions
The Constitution of Kenya, which took effect 27 August 2010, does not expressly protect the rights of LGBTI persons because, according to the experts who drafted the constitution, a majority of Kenyans would have rejected the constitution in the referendum to adopt it.
Nevertheless, few argue that Kenya's statutes discriminating against LGBTI persons are unconstitutional and void because of the constitution's broad protection of civil and human rights. Peter Anaminyi, the national director of Feba Radio Kenya, predicted in June 2011 that within 18 months there would be a challenge to the constitutionality of the Kenya Penal Code.Peter Anaminyi (2 June 2011), "Kenya is on the verge of a 'Gene Robinson' moment" , The Guardian.
Article 2
Article 2 of the Constitution of Kenya provides, in paragraph (5) that "the general rules of international law shall form part of the law of Kenya" and, in paragraph (6), that "[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution". In paragraph (4), the constitution states, "[a]ny law, including customary law, that is inconsistent with [the] Constitution is void to the extent of the inconsistency, and any act or omission in contravention of [the] Constitution is invalid." A subsequent section of this article lists Kenya's obligations under international law and treaties concerning LGBTI rights.Kenya: Gay Kenyans must join the civil society, interview with Mugambi Kiai , International Lesbian, Gay, Bisexual, Trans and Intersex Association. To the extent that any Kenyan law violates Kenya's voluntary or involuntary obligations under international law, the law is arguably void under Article 2.Courtney E. Finerty (2012), "Being Gay in Kenya: The Implications of Kenya's New Constitution for its Anti-Sodomy Laws" , Cornell International Law Journal, v. 45.
Article 10
Article 10(2)(b) of the Constitution of Kenya provides that, "The national values and principles of governance include ... human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised...." Concerning this provision, "Right there, there is a firm basis [for] one to argue against the violation of their [LGBTI persons'] dignity ... on the basis of their gender or sexual orientation. There is firm ground to contest for inclusion, non-discrimination and equality too".
Article 19
Article 19 of the Constitution of Kenya provides that, (1) The Bill of Rights [Articles 19-59] is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
Article 20
Article 20(3)(b) of the Constitution of Kenya requires courts, when applying a provision of the Bill of Rights, to "adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom". Concerning this article, Makau Mutua, the chair of the Kenya Human Rights Commission and the dean at the University at Buffalo Law School, The State University of New York, says that "where a right is contested, the courts must take the most liberal interpretation of the law to avoid denying the right".Makau Mutua (12 May 2012), "Rights body has finally stood up for gays and lesbians" , Daily Nation.
Article 24
Article 24(1) of the Constitution of Kenya provides that, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors...."
Article 27
Article 27 of the Constitution of Kenya provides that, Every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
Concerning this article, The Equal Rights Trust and the non-governmental Kenya Human Rights Commission said in 2012, While the Constitution does not explicitly provide for non-discrimination on grounds of sexual orientation and gender identity, there is scope for this to be rectified through the courts or subsequent legislation. Article 27(4) of the Constitution of Kenya 2010 provides that the "state shall not discriminate directly or indirectly on any ground, including [listed characteristics]", while Article 27(5) states that persons shall not discriminate on any of the grounds "specified or contemplated in clause (4)". Thus defined, the prohibition on discrimination by both the state and non-state actors should be read as inclusive of sexual orientation and gender identity.
In a May 2012 submission to the United Nations Human Rights Committee, the government of Kenya agreed with this interpretation of Article 27(4).
Makau Mutua argues that the Kenya Penal Code is unconstitutional under this article. He said,
Article 27, which is the Equal Protection of the Constitution, provides "every person" is "equal before the law" and has the "right to equal protection" before the law. That's an unequivocal, categorical, and blanket protection against discrimination. The article doesn't exclude homosexuals from the ambit of constitutional protection. Further, Article 27(4) prohibits discrimination on the grounds of "sex". The prohibition of discrimination on the grounds of sex has been understood to include sexual orientation. The Constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination.
Article 28
Article 28 of the Constitution of Kenya provides that, "Every person has inherent dignity and the right to have that dignity respected and protected." This article offers "fresh impetus to the rights of the LGBTI community".
Article 31
Article 31 of the Constitution of Kenya provides that, "Every person has the right to privacy...." Privacy is a fundamental human right, enshrined in numerous international human rights instruments.
Decriminalization efforts