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New Dawn for Intersex Persons in Kenya: An Evaluation of the Intersex Persons Bill, 2023
Author: Judith Oloo *
Abstract
The saying that it gets darkest just before dawn could not be more accurate in describing the journey of recognition of intersex persons in Kenya. This paper acknowledges the Intersex Bill 2023 as a monumental step towards enhancing the protection of intersex persons in Kenya, who have been marginalised ever since. It opens with a historical and background context, alluding to the fact that intersex persons have always existed, pointing that the mystery and or negative attitude towards intersex persons attributable to, and fuelled by lack of awareness. The discourse identifies and calls out the dimensions of violations of the rights intersex by government institutions including the judiciary, law enforcement organs, hospitals and medical personnels, their own families and the public in general. A closer look at the Bill exposes loopholes and gaps that need to be filled to enhance the level of protection. Even as it advocates for the passing into law of the Intersex Bill 2023, this paper proposes some amendments to the Bill, and reforms in the existing institutional framework that support, condone and or enable the discrimination of intersex persons. Additionally, it suggests capacity building for change in the societal outlook for a progressive society.
1. Introduction
‘Intersex’ describes the range of natural sex features that causes congenital conditions such as chromosomes, gonads or genitals that do not fit within the common perception that an individual is either male or female.1 Global statistics approximate the number of intersex persons born every year at 1.7%.2 The growing number of intersex persons notwithstanding, the phenomenon remains largely misunderstood. The mystery around it is mostly associated with negativity such as social misfits, curses, or evil spirits, causing intersex persons to be discriminated upon and even violated.3 Consequently, at international, regional and national levels, a number of initiatives have been made towards awareness creation on this issue. The efforts have culminated to the building of framework and policies for safeguarding, fostering and aggrandizing the rights of intersex persons.4
At the very outset, it is important to acknowledge that globally, almost every government has had its fair share of challenges when it comes to handling intersex persons mainly because they do not fall within the social constructs of gender binaries – male and female.5 As a result, intersex people are perceived as misfits in every society. Consequently, they face significant human rights violations immediately after birth, ranging from discrimination, torture and even brutal killings. This is alluded to by a recent study on the context and situation of human rights of intersex persons on the African continent over the past decades, which revealed various forms of violations of intersex persons including inadequate legal recognition and registration processes, infanticides non-consensual genital ‘normalising’ surgeries on minors, discrimination in public spaces such as learning institutions, workspaces, and detention facilities, extortion, blackmail, targeted attacks, and extreme violence among others.6 This necessitates the urgent intervention of authorities to protect this vulnerable group.
By 2019, Kenya had 1,524 intersex persons.7 As the law in Kenya only recognizes male and females, intersex persons have no choice but to identify either as male or female.8 This in the very first place violates their right to legal recognition. Lack of recognition not only adds to their trauma but has a negative impact on totality of the protection of their basic rights and freedoms. Notably, the Constitution of Kenya 2010 provides for non-discrimination on many bases including gender.9 This provision mandates the government to provide additional layer of protection of the right of different marginalised groups. However, the protection of intersex persons has not been given the attention it deserves, leading to their exposure to various forms of violence.
2.0 Historical Context
Intersex is not a new phenomenon. It has been around for as long as humans have existed.10 Among the oldest mentions of intersex is in the Holy Bible, in the book of Matthew in the New Testament. The Bible acknowledges the existence of eunuchs by birth, eunuchs who have been made so by others and eunuchs who have chosen to sacrifice worldly pleasures for the Kingdom of God.11 In the context of this discourse, eunuchs by birth are understood as intersex not by choice, but by birth or natural defects later in life, including persons born without desire for sex. The book of Esther also references ‘eunuchs and female attendants.’12 Additionally, the book of Acts references the Ethiopian eunuch.13 The Bible thus alludes to the existence of intersex persons even in the biblical times.
Although Hujrat in the Quran only recognizes two gender binaries; man and woman, going by the creation story in Hujrat, which references the creation of male and female,14 intersex is recognised in Islamic jurisprudence – fiqh.15 Fiqh classifies intersex persons into three; - people born with both male and female genitalia (khunthā), effeminates with female characteristics (mukhannath), or masculine women (Mutarajjilah).16 Just like the Bible, the Quranic account of existence of intersex among God’s creation signifies that it has always been there. In the African traditional setting, gender dichotomy was either male and female or masculinity and femininity, no grey areas. Intersex persons being social misfits, were frowned upon, hidden, associated with evil and in some cases killed.17 The fact that intersex in most African societies is associated with negativity could be the reason it is not spoken or written about as much.
The term ‘intersex’ can be traced to 1700s,18 but it was only in 1917 that Richard Goldschmidt applied it in the context in which it is understood today.19 In contemporary times, discourses around the concept of intersex have mushroomed since the late 1990s, mostly from medical, ethical, and legal perspectives due to increased awareness, and following the establishment of the first intersex patient rights organizations.20 It seems that intersex people have been part and parcel of the community from time immemorial.21
It follows therefore that intersex is not a new concept in Kenya either, rather, discourses around it have not significantly caught public attention. In any case, public perception of intersex persons surveys paint the picture of intersex person as unclean, carrying bad omen or possessed with evil spirits requiring ‘cleansing.’22
That said, the very first time a Kenyan court had to pronounce itself on the issue was in 2010 in the R.M. v. The Attorney General and 4 Others23 in which the petitioner, who was born as intersex and raised as male, was remanded after being charged with a criminal offence. Upon conviction, he incarcerated with male convicts. The Petitioner claimed that because the law in Kenya did not recognise intersex persons, his incaceration with male convicts violated his rights, as he was molested and ridiculed by the said inmates. His second claim was that having been denied a certificate at birth, he could not obtain the national identification document and consequently he could not enjoy his civil rights among others.
The Court in its judgement concluded that the Petitioner failed on the main claim that the legal framework did not recognise or discriminated against intersex persons, because there was a law pertaining specifically to intersex persons. However, the Court ruled in favour of the Petitioner, being held with male convicts amounted to cruel and degrading treatment. He was therefore awarded damages, making the case a locus on matters intersex. The matter came short of exposing the fact that even elites of the Kenyan society like judicial officers did not really appreciate this phenomenon. It also opened doors to subsequent litigations around the issue of intersex persons.
Subsequently, in Republic of Kenya v. Kenya National Examinations Council and Another,24 the Applicant underwent hormonal therapy and proceeded to changer name Andrew to Audrey. She subsequently sought to change her name on her identification documents and academic papers reflect on account of the sex change. Her request to the 1st Respondent to update her certificate was declined, culminating into a suit. The Respondent argued that according to its regulations, it could not change a candidate’s name once a certificate has been issued. Additionally, that the Applicant had not completed her transition from male to female beside the fact that her other official documents still had her former name. Reasoning that the law neither prohibited change of name nor required gender to appear on certificates, the Court compelled the Respondent to amend the Applicant’s certificate. This ruling was also augmented by reliance on national values and principles of governance that bind state organs, officers and public servants,25 as well as the right to dignity.26 This decision of this case was celebrated as more Kenyans began to appreciate the challenges of being an intersex person compounded by how difficult it can be to obtain documents from most government offices.
In E.A & Another v. Attorney General and 6 Others,27 the 1st Petitioner was born intersex, and the hospital inserted the symbol ‘?’ to indicate it’s sex. It was the Petitioner’s claim that entering a question mark to indicate the gender of the child infringed on its right to legal recognition, right to be treated with dignity, and thereby infringed on its freedom from degrading treatment, Articles 27, 28 and 29 of the Constitution of Kenya and Section 4 and 8 of the Children Act, 2022.28 The petitioners further pointed out that the Registration of Births and Deaths Act29 only provided for the registration of male and female persons. Moreover, the 1st Petitioner had not been issued with a birth certificate contrary to Article 7 of the UNCRC and Article 20 of the Constitution of Kenya, 2010.30 The Petitioners therefore sought declarations that firstly, intersex children have the same rights as other persons; that any cosmetic corrective surgery on intersex infants must be undertaken only in the best interest of the child and with prior approval of the relevant court. The second declaration sought was that the 1st Respondent be mandated to investigate, monitor and keep statistics pertaining to intersex children in Kenya.
In its ruling, although it was not one of the issues to be determined, the Court accosted the need for putting in place a policy on the protection of intersex children in addition to an authority or commission for intersex children matters. Following this recommendation, a taskforce was created for the protection of the rights of intersex persons.31 Among the milestone the task force has achieved is the inclusion of intersex persons in Kenya’s population census for the very first time in 2019. By this positive move, Kenya secured its place in history as the first country in Africa to include intersex persons in its population census, setting the pace for the rest of Africa. This portends hope for an inclusive and liberal legal, policy as well as institutional environment for all people in Kenya and Africa by extension.32
3. Account and Evidence of the Violation of Rights of Intersex Persons in Kenya.
The cases cited above are just the tip of the iceberg in the explanation of the plight of intersex persons in Kenya, of course, cognizant of the fact that only a few violations culminate into court cases.
3.1 Stigma
Intersex persons are misunderstood and or secluded for various reasons including but not limited to the fact that there is not enough awareness or publicity around this phenomenon.33 as often times, intersex diagnoses were concealed from individuals and even their families.34 According to a UN Report, intersex people face stigma because they are seen as different, and this opens them up to a myriad of violations including but not limited to violation of their right to the highest standard of health, education, physical integrity, equality, non-discrimination and humane treatment.35
Worthy of note is that all too often, when people lack the understanding of a particular issue or condition, they tend distance themselves from it, and even create unpleasant theories about its causes, further stigmatizing and marginalizing the affected persons. This is alluded to in a report, where an intersex person confessed to facing a lifetime of stigma and discrimination emanating from the fact that being intersex is regarded as unnatural and abnormal, causing those born as such to be unable to complete their education and unable to access healthcare or jobs.36 Stigma and marginalization is further exemplified in a feature in a Kenya-based media brief, which referred to being intersex a ‘curse’ following an account of 9-year-old who was raised as a boy stopped attending school on account of badgering and persecution by fellow pupils, who followed him every time he went to the toilet to see how he urinated.37 In some cases, the stigma associated with giving birth to intersex children lead to the breakup families and even mental health issues.38
It is a fact that intersex is perceived with negativity, which is why it was not news when the media in Kenya, reported African communities’ belief that intersex people are born unclean; possessed by evils spirits.39 It could be that intersex persons are identified together with LGBTQ is not working in their favour, as it tends to give the wrong impression that being intersex is a form of sexual orientation, when nothing could be further from the truth. This position has been reiterated by Carpenter, that associating LGBTQ and intersex persons dangerously escalates the levels of stigma experienced by intersex persons.40 While intersex is a congenital condition, LGBTQ is not. Not all intersex persons are LGBTQ and not all LGBTQ are intersex persons.41 Be that as it may, these issues need to be canvassed separately.
3.2 Torture
Both gender and sexual orientations discrimination often dehumanises its victims, which is why it is often forms a platform for torture and ill-treatment.42 Section 4 of the Prevention of Torture Act (2017) explains torture as the intentional inflicting severe or suffering on an individual; whether physically or mentally pain based on discrimination of any kind.43 The media in Kenya highlighted the story of a 26-year-old BN who was tormented by his extended family and neighbors. Born intersex, the ‘bad news’ was received by its extended family with disappointment. Consequently, the family ordered his parents to never take him home as he was considered evil. Upon attaining schooling age, BN enrolled into a school but due to humiliation and bullying both by the teachers and fellow pupils, he dropped out of school. Although his parents and siblings love him very much, BN was rejected by the larger family and at school.44
Further evidence of torture is found in forced medical interventions and medical procedures without informed consent amount to torture, inhumane and degrading treatment, contrary to Article 28 of the Constitution of Kenya as well as the Prevention of Torture Act. 45 In this context, torture takes the form of harassment, violent homophobic attacks, threats, and intimidation, and extremely limited opportunities for local integration.46 Incidences of forced corrective surgeries are many in Kenya, the most publicly discussed being that of 17-year-old Muhadh Ishmael from Malindi who was born intersex. Upon attaining puberty, he wished to be identified as a man, but his family wanted him to identify as a woman leading to a dispute. The family orchestrated the forceful mutilation of his genitals and then abandoned him in a forest. He was rescued and taken to hospital where he succumbed to his injuries while receiving treatment.47
That many intersex persons suffer from torture and hence live in fear is confirmed by Amnesty International in a report. It indicates that notwithstanding the constitutional protection for the life and dignity for all, intersex and LGBTQ refugees and asylum seekers are discriminated upon, emanating from uncharitable attitudes of government officials and other service providers such as the police and medical personnel.48
3.3 Deaths
In April 2022, news headlines in Kenya were all about a 25-year-old intersex who identified as a lesbian, Sheila was murdered in her bedroom. Post-mortem revealed that Sheila had been hit on the head with a blunt object and stabbed. This shocking occurrence sparked a debate about the rights of intersex persons in Kenya, leading to the call on authorities to investigate the incident.49
Barely a month after this, a 50-year-old intersex Rose Mbesa was reported to have been raped and killed in Trans-Nzoia, and her body dumped by the road.50 Innumerable similar incidences have been reported such as the killing of Joash Mosoti,51 Chriton Atuhwera,52 and Edwin Kiprotich Chiloba.53 This study would not be complete without highlighting that Kenya is home to Kakuma refugee camp - the only country in the East and Horn of Africa that offers asylum to refugees by virtue of sexual orientation and gender identity.54 In this camp, murders of intersex people have been recorded, including that of Chriton cited above.55 The lack-lustre attitude of law enforcement department is worth mentioning for what looks like a systemic failure to properly investigate allegations of violations of rights of LGBTQ and intersex persons. Noteworthy is the department’s fail they intervene to stop violent incidents even where the perpetrators were positively identified, leading to pervasive violation of rights of minorities in the camp.56
These incidents could not have been ordinary cases of murder. There is a pattern, as most of them appear to have been committed in cold-blood and had some kind of sexual violation of the victims, pointing to systematic attacks or to pre-meditated targeted attacks. The statics point to systemic attacks. This exemplifies how unequal and phobic the Kenyan society is because no societal approval is required for ‘other’ people. In sum, the dire straits of intersex persons in Kenya can be summed as ‘extremely dangerous.’57 All too often, these extremely serious forms of human rights violations are accompanied by impunity and non-accountability. Hence the urgent need for the passing of the Intersex Bill, 2023.
4. Intersex Persons Bill, 2023
In recognition that intersex persons are entitled to all human rights, the intersex Persons Bill 2023 was proposed to protect their rights through elimination of unlawful discrimination. The following section highlights the salient features of the Bill:
Definition of Intersex Persons
The Bill regards an intersex as a person bearing biological sex characteristics that do not exclusively fit in the common binary of female or male due to inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns occurring at any point in their lifetime.58 This definition is very important because it provides the working understanding of an otherwise ambiguous and obscure phenomenon.
Objectives of the Bill
It seeks to underscore the various entitlements of intersex persons and task the government to avail means to enable intersex persons to enjoy the said rights including living with dignity and without fear. The uniqueness of this Bill lies in its provision for a consolidated piece of law specifically protecting intersex persons. One of the long-standing issues has been that intersex peoples are not recognized as individuals, evident from the very fact that they are denied birth certificates, national identification documents and government services such as health services. The Bill takes a fulfilment and promotional approach towards the protection of the rights of intersex persons. It calls for the inclusion of intersex persons in all aspects of the society and not just in decision making on issues that touch on them. The call for inclusion aims at eliminating all forms of discrimination particularly in access to justice, security, health, employment, information, and education.
Introduction of Third Gender-marker and Compulsory Registration at Birth
The inclusion of the word ‘sex’ to mean either male or female in all identification documents as provided by the Registration of Births and Deaths Act, 2012 directly discriminated against intersex people who are at the middle of the sex spectrum. This is what Section 5(1) of the Bill sought to cure, through the provision that subject to the existing law relative to registration of births and deaths, an intersex child shall be entitled at birth to an acknowledgement of the birth notification, in writing, indicating that the child is intersex; or an official certificate of birth indicating the sex characteristic of the child. Such documents shall bear the name, birth date, and name of one or both parents of the child, and sex of the child as either male, female, or intersex.
This provision is important as it seeks to cure a basic loophole in the existing law, that only recognizes a child as male or female, thereby blocking intersex children out of registration. Going by the case of RM cited above, an individual who is not registered will not have birth certificate, cannot access the education system, and when they are of age, they cannot obtain a national identity card, and even passports. Ultimately, a combination of these affects the outcome of their lives. This indeed, is a locus classicus case of how non-recognition can lead to marginalization.
With the recognition of the third gender in the proposed Bill, an intersex child shall be entitled at birth, to be issued with an acknowledgement of the birth notification, in writing, indicating that the child is intersex: or an official birth certificate.59 In effect, intersex persons will now find their place among other Kenyans and the rest of the world. This revolutionary provision will impact on other laws in Kenya that refer to male or female to now include intersex persons.
Prohibition of Forced Corrective Surgeries
Due to shame and or societal pressure to conform, many parents or caregivers of intersex persons resort to some kind of surgery in a bid to ‘correct’ the deformities in the genitals of the intersex person.60 These surgeries are problematic as some have lasting negative impacts on the physical, mental and psychological well-being and gender identity of the person.61 And when performed without informed consent, these surgeries not only violate victims’ right to physical bodily integrity but also impact their health and reproductive rights.62 In fact, it was reported that in different places across the globe, intersex persons are also being subjected to sterilization in the guise of ‘corrective surgeries.’63
The Intersex Persons Bill 2023, outlaws forced corrective surgeries through the prohibition of harmful practices targeting intersex persons. Anybody who subjects an intersex person to any form of harmful practice; or aids, abets, allows or encourages any other person to subject an intersex person to any harmful practice, commits an offence and is liable on conviction to a fine or imprisonment of not less than six months or to both.64 This aligns with the UN Special Rapporteur’s recommendations that State Parties be obligated to abolish laws that allow corrective surgeries and related therapies on intersex persons without their free and informed consent.65
Right to amendment of official documents by intersex persons
An intersex person may at any time amend official documents by applying to the Registrar, to amend the sex marker as applicable to their case.66 This is in recognition of the fact a person may be born as intersex but their dominant trait many change, so that they are able to identify as either male or female, while others maybe born identifying as either male or female but somewhere along their life they begin to identify as the other gender or even as intersex. This can happen even because of corrective surgeries. This is consistent with the research finding that sex related natural features of people manifest at different stages in life; while some are apparent at birth, while others manifest at puberty.67 This provision facilitates the amendment of their registration documents to conform with their status. This responds to or forestalls situations such as was seen in Republic v. Kenya National Examinations Council and Another Ex-Parte Audrey Mbugua Ithibu68 in which a government entity had to be compelled to amend the records of the complainant.
Section 7(1) articulates that an intersex person may at any time, apply to the Registrar for correction of any particulars in their national identification document. The obligation that this requirement puts on the applicant is to ensure that such application under is made in writing, indicating the particulars in the identification document, to be amended. Reportedly, although many intersex persons have accordingly changed their gender but have been unable to change their official documents due to austere rule pertaining to amendment of official document in Kenya69 Ordinarily when one’s documents do not read the same details, it raises eyebrows, with possible accusations around forgery of documents.70 This provision enables those who have successfully changed their names to live in dignity and comfort that all their documents align with their new identity.71
The Full Realization of the Rights of Intersex Persons
Section 8 mandates the government to secure the realization of the human rights and fundamental rights of intersex persons provided for in the Constitution. This Bill advocate for intersex persons to be recognized and their freedoms to engage in activities just like other Kenyans protected. While part II of the Bill seeks to remedy past injustices by outlining the role of the state in so far as the registration of intersex persons is concerned, part III appears to be more forward looking, focusing on inclusivity of intersex person and creating an environment where they can thrive.
Section 9 prohibits the perpetration of harmful practices targeting intersex persons and sets a hefty fine at Ksh. 100,000 or imprisonment of not less than six months or to both for aiding abetting, allowing or encouraging any other person to subject an intersex person to any harmful practice. And one may not successfully argue in defence to a charge for a violation of this law that the alleged harmful practise is cultural.
Learning institutions shall admit intersex persons to any courses, ensure that the best interest is assessed, and provide them with the necessary facilities, accommodation of learners’ medical or psychosocial needs and even staff training and inclusive curriculum. This is a bid to remove barriers to education among this vulnerable group.72
The Establishment of Advisory Committee
The Bill envisages an Advisory Committee to among other roles provide advisory services pertaining to the recognition and safeguarding of the rights of the intersex persons. This will ensure continuity in policy work to better the lives of intersex persons.73
Linkage with Domestic Law and International Law
This section looks at how the proposed Bill interacts with the already existing law around the protection of Intersex persons in Kenya. This paper takes the view that this Bill is consistent with both domestic and international law. To begin with, at domestic level, the Constitution of Kenya articulates the obligation of everyone to not only respect but to also uphold and defend the Constitution, which can be largely construed to imply the duty protect the rights of intersex persons.74 The Bill further aligns with the national values and principles of governance which include inclusiveness, equality and protection of the marginalized.75 This is also seen in the provisions that facilitate change of names on documents following a corrective surgery, and even the provision regarding issuance of a birth certificate gender-marked ‘I’ and in effect protect them from marginalization.
Although the Constitution of Kenya does not specifically reference intersex persons, it postulates that the fundamental rights and freedoms it contains apply to all, which speaks to inclusivity.76 Part II of the Bill mainly focuses on remedying past injustices and calls on the state to register all intersex persons. This is in tandem with the provision on state obligation to observe, respect, protect, promote and fulfil the rights and fundamental freedoms for all,77 the right to life included.78
Of further relevance to this discourse is the non-discrimination clause which mandates the State to secure equality for intersex persons, while at the same time prohibiting all manner of discrimination including based on gender or sexual orientation discrimination.79 Issuance of birth certificate to all without discrimination is highlighted. This provision is reinforced by the article 28 on the right to dignity, which can be construed to prohibit non-consensual corrective surgeries and forced sterilization, which relates to bodily integrity. Also prohibited is the humiliation of intersex persons among others.80
In relation to rights of the child, this Bill augments the position that every child has the right to be named, registered, educated, care for, and protected from harmful cultural practices, and that the best interest of the child is the supreme consideration in any dispute pertaining to child.81 Further, the Intersex Bill is intended to work in complementarity with the Persons Deprived of Liberty Act 2014, which provides that intersex persons deprived of liberty should held separate from other persons.82
Additionally, the National Police Service Standing Orders directs that arrested intersex persons who are intersex shall be frisked by female or male officers, and detained in appropriate and separate facilities, where applicable.83 The foregoing demonstrates that the Intersex Bill not only sits well with other existing laws relative to intersex persons, but it is also deeply anchored on well recognised principles of domestic law spread across the various human rights instruments in force in Kenya.
Adopted in 1948 by the UN General Assembly, the Universal Declaration of Human Rights (UDHR) is premised on the belief that all human beings are born free and equal.84 In reality, however, is that in all regions of the world, people continue to be discriminated and victimised on various grounds including their gender. This necessitated the creation of the office of Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity in 2016, to address these concerns.85 Also, the Convention on the rights of the child (1989) envisions among many other rights, every child’s right to a name and nationality.86
It is noteworthy whilst the international human rights framework is a rich and a complex body of law, it makes no specific reference to rights of intersex persons. However, since intersex persons are humans first, the rights contained in international human rights treaties apply to all people, they included. The closest reference to intersex person is in the UN’s General Comment No. 22 (2016) on the right to sexual and reproductive health which prohibits the criminalization the expression of one’s gender, or consensual sex between adults of the same gender.87
On the continental front, although the African Charter on human and Peoples’ Rights (1981) is mute on the rights of intersex persons, the African Commission on Human and Peoples’ Rights (ACHPR) in 2022 adopted the report on the challenges facing intersex persons on the continent.88 On the strength of the said report, the Commission proceeded to adopt a Resolution on protection of intersex persons.89 The Resolution implored State Parties to prohibit non-consensual gender corrective practices and surgeries and to promote the right of the intersex population through mass sensitization and education.90 The Resolution that was adopted formed the cornerstone and foundation for addressing gaps in the law and the under-representation or substandard representation of intersex persons. This aligns to the Commission’s mandate to promote and protect human and peoples’ rights on the continent.91 Additionally, the African Charter on the Rights and Welfare of the Child (ACWRC) (1990) among other rights of the child, articulates every child’s entitlement to a name and registration at birth.92 It also prohibits harmful and retrogressive social and cultural practices that jeopardize their growth and development.93
5. Observations/discussion of findings and Conclusion
The foregoing sections have highlighted the social situation of intersex persons globally but with the spotlight on Kenya, as being a life characterised by indignity, fear, discomfiture, and exclusion emanating mainly from a sense of not belonging. This is observed through occurrences such as school dropouts, cruel murders, suicides, mental illnesses, breakdown of marriages among others. This situation implores us to look deeply within ourselves, our social values as a society and our judicial system to find out where we went wrong, what we have learnt and what we could do better. The following observations are made:
First, there is a general misunderstanding of this concept of intersex and the people affected. The general perception is that intersex is a disease, a curse, or a bad omen and is therefore shunned. This negative social attitude causes and fuels discrimination against intersex persons and justifies their unfair treatment. The impact of this is intersex persons living in distress due to the hate spewed against them manifested in cruelty, torture, cold-blood killings, discrimination etc. Further observed is that such lack of understanding is perverse even among the elites of our society including the law enforcement institution, judicial officers, and the correctional system administrators.
Second, as the society does not openly discuss matters relating to sex, the concept of intersex remains a mystery to many. Consequently, intersex persons have for a long time been confused with people belonging to Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community, thereby obscuring their issues, further complicating their plight. 94 This paper takes the view that the passing of this Bill will go a mile in helping the public appreciate the place of intersex persons in the LGBTQ equation. Defining ‘intersex’ is already monumental in understanding the nature of their struggles as a marginalized and vulnerable group.
Third, even without the Intersex Bill, Kenya has had a framework for the protection of intersex persons as captured above. It is the view of this paper that what has been lacking has been awareness and commitment to protect this vulnerable group.95
Fourth, that the Intersex Bill although late in the day, is still progressive, as it augments and reinforces their need for protection and puts in place a guideline for stakeholders so that matters to do with protection of intersex persons will no longer be relegated to wide interpretations or goodwill of the departments concerned. This enactment also serves to distinguish intersex persons from gays, lesbians and transgender, which is important for purposes of understanding who they are, what the nature of their suffering and what their specific needs are. Although, more will need to be done in terms of educating the masses and duty bearers intersex rights and need for strict adherence to enhance its impact when the Bill is finally enacted.
Additionally, the creation of the advisory committee by section 24 of the Bill is a progressive move as it ensures that at any time there is continuity in policy work to better the lives of intersex persons.
This study further lauds NGOs who through media advocacy and research have contributed a great deal in bringing the issue if intersex persons to the fore of current affairs in the country. Such exposures have ignited interest and given momentum and demystified this issue, contributing to building empathy and tolerance. It calls for sustained efforts on the same to fill the gaps in knowledge and awareness gaps.
6. Recommendations
Based on the above observations, the following recommendations are made:
6.1: Proposed amendments to the Bill:
6.1.1: Although the Bill envisages antenatal care and counselling of intersex person in antenatal in section 11(3)c(ii) this facility should remain available to all intersex persons, age notwithstanding. This is because people learn at different stages of their lives that they are intersex, limiting counselling services to ante-natal care alone would lock out those who might need these services at a later age. In fact, this facility should not only be availed to intersex persons but to their entire families to receive adequate counselling and support since this issue affects the whole family.
6.1.2: Section 16(c) provides that it is the right of intersex persons to undertake assisted reproductive technology (ARTS) for purposes of procreation; Recognizing that most people form this vulnerable group have not had their fair share of education due to discrimination, this implies that they are marginalized economically as well. Hence, the government should consider providing ARTS at a subsidized cost or free of charge to enable them take advantage of it. Making the facilities available alone will not make much of a difference. This section to be amended accordingly.
6.1.3: Incentivizing employers: Section 21(1) of the proposed Bill provides that a public or private employer who engages an intersex person shall be incentivised. However, there is no clear structure of how this will be done. This study proposes the putting in place of Regulations to give effect to this.
6.1.4: Section 23 of the proposed Bill provides for reparation but fails to unpack what the reparations should look like. The section is also mute on how to make up for past injustices including securing investigation and prosecution of alleged perpetrators, and access to effective remedy.
6.1.5: Section 24(2) provides for the constitution of the Advisory Committee. It is recommended that representatives of the intersex community should be part of the advisory committee to speak for intersex in the true sense of inclusivity. And in the true sense of involving people in decision making processes on issues that involve them. The section be amended accordingly.
6.1.6: Roles of the Advisory Committee should include monitoring compliance with human rights of intersex people and making recommendations from time to time. This may include but not limited to developing guidelines for the amendment of sex markers on the birth certificates and official documents.
6.2: Involvement of intersex persons in public affairs:
Provisions should be made in the law to secure the meaningful participation of intersex persons in studies relative to their issues, development of laws and policies that impact on them, and on other pertinent issues in the country.
6:3. Training of Public Servants:
All public servants involved in law enforcement including but not limited to the police, the judiciary, the department of immigration, healthcare and education among others need proper capacity building to enable them to appreciate the rights of intersex persons to inform their better engagement with the public.
6.4: Civic education for the public:
The government should set aside funds towards civic education programs to enlighten intersex persons of their rights and how seek remedies for violation one hand and on the other hand for the public to appreciate the issues surrounding not just intersex persons but embracing unity in diversity. This will inculcate the spirit of understanding, tolerance while at the same time empowering the public to report cases of violation of intersex persons as and when they arise.
6.5: Gender desks at police stations to accommodate intersex persons and direct them accordingly:
Police Gender Desks established to address gaps in access to services for survivors of SGBV. In the spirit of inclusivity, the scope of their work now be expanded to cover intersex persons as well.
6.6: Reparation:
The government to take measures to address historical injustices through investigated, publicly acknowledgement and reparation. This is addition to placing measures to prevent future violations. For instance, starting by securing birth certificates to all living intersex persons of all ages, and then ensuring that going forward, everybody gets a certificate at birth.
* Advocate of the HC of Kenya and Lecturer, Robert Gordon University - UK.
1 interACT Team, “New UN Intersex Fact Sheet” (interact: Advocates for Intersex Youth, September 7, 2015) <https://interactadvocates.org/new-un-intersex-fact-sheet/> accessed March 27, 2024
2 Admin, “Intersex Population Figures – Intersex Human Rights Australia” (“ihra, September 16, 2019) Admin, <https://ihra.org.au/16601/intersex-numbers/> accessed March 27, 2024
3 Sharon Preeves, Intersex and Identity: The Contested self. (first published 1968, Rutgers University Press) 60
4 Morgan Carpenter, “The OHCHR Background Note on Human Rights Violations against Intersex People” (2020) 28 Sexual and Reproductive Health Matters 1731298
5 Marjolein van den Brink, Trans and Intersex Equality Rights in Europe: A Comparative Analysis (Publications Office of the European Union 2018)
6 Centre for Human Rights, University of Pretoria ‘Study on the Human Rights Situation of Intersex Persons in Africa’<https://www.chr.up.ac.za/images/researchunits/sogie/documents/Intersex_Report/Intersex_report_Oct_Sept_2022.pdf> accessed 18 July 2023.
7 Kenya National Bureau of Statistics ‘2019 Kenya Population and Housing Census Results’ (2019)
https://www.knbs.or.ke/2019-kenya-population-and-housing-census-results/ accessed 18 July 2023.
8 Registration of Births and Deaths Act 2012, s 7
9 The Constitution of Kenya 2010, Article 27
10 Office of the High Commissioner for Human Rights, ‘New Intersex Fact Sheet’ (interact)
<https://interactadvocates.org/new-un-intersex-fact-sheet/> accessed 2 June 2023
11 “Matthew,” 9:12, Holy Bible (NIV) (Zondervan 2008)
12 “Esther,” 4:4, Holy Bible (NIV) (Zondervan 2008)
13 “Acts,” 8:26-40, Holy Bible (NIV) (Zondervan 2008)
14 Ḥujurāt: 13, Abdullah Yusuf Ali, The Quran, vol 8 (4th edn, DigiCat 1678)
15 Sayyed Mohamed Muhsin and others, “Sex Reassignment Surgery, Marriage, and Reproductive Rights of Intersex and Transgender People in Sunni Islam” [2024] Archives of Sexual Behaviour.
16 Mohd Shuhaimi Bin Haji Ishak and Sayed Sikandar Shah Haneef, “Sex Reassignment Technology: The Dilemma of Transsexuals in Islam and Christianity” (2012) 53 (1) 1-10. Journal of Religion and Health 520
17 Bradley Fortuin, “Breaking Binaries and Advocating for Intersex Justice in Southern Africa - Southern Africa Litigation Centre” (Southern Africa litigation Centre, November 9, 2023) <https://www.southernafricalitigationcentre.org/2023/11/09/breaking-binaries-and-advocating-for-intersex-justice-in-southern-africa/> accessed March 28, 2024
18University Press Oxford, “Oxford English Dictionary” <https://www.oed.com/dictionary/intersex_adj#> accessed March 28, 2024
19 Richard Goldschmidt, ‘Intersexuality and the Endocrine Aspect of Sex’ Journal of Endocrinology (1917) 1 (4): 433–56
20 Amanda Lock Swarr, Envisioning African Intersex: Challenging Colonial and Racist Legacies in South African Medicine, vol 1 (1st edn, Duke University Press 2023) 18
21 Morgan Carpenter, Intersex, Oxford Bibliographies (2021) https://www.oxfordbibliographies.com/display/document/obo-9780199756384/obo-9780199756384-0232.xml#obo-9780199756384-0232-div1-0002 accessed on 20 March 2024.
22 Rosemary Onchari, “Ordeal of Intersex People as Human Rights Body Pushes for Intersex Bill, 2023 » Capital News” Capital News (May 24, 2023) <https://www.capitalfm.co.ke/news/2023/05/ordeal-of-intersex-people-as-human-rights-body-pushes-for-intersex-bill-2023/> accessed March 27, 2024
23 [2010] eKLR
24 [2014] eKLR, JR Case No. 147 of 2013
25 The Constitution of Kenya 2010, Article 10
26 The Constitution of Kenya 2010, Article 28
27 [2014] eKLR, Petition No. 266 of 2013
28 Section 8 provides that best interest of the child is the paramount consideration on all decision pertaining to a child.
29 Revised 2012 [1972]
30 The Constitution of Kenya 2010, Article 20 provides that the Bill of Rights shall be enjoyed by every person to the greatest extent consistent with the nature of the right or fundamental freedom.
31 The Taskforce on Policy, Legal, Institutional and Administrative Reforms on Intersex Persons is obligated to among other things compile comprehensive data regarding the number, distribution and challenges of intersex persons.
32 Ushie B, ‘Recognising intersex people opens access to fundamental rights in Kenya’
<https://theconversation.com/recognising-intersex-people-opens-access-to-fundamental-rights-in-kenya-122413> accessed 27 October 2024.
33 Intersex Human rights Australia ‘Intersex Population Figures’ (2019)
<https://ihra.org.au/16601/intersex-numbers/> 18 July 2023.
34 Intersex Human rights Australia ‘Intersex Population Figures’ (2019)
<https://ihra.org.au/16601/intersex-numbers/> 18 July 2023.
35 Office of the High Commissioner for Human Rights, ‘New Intersex Fact Sheet’ (interact)
<https://interactadvocates.org/new-un-intersex-fact-sheet/> accessed 2 June 2023
36 Andrew Wasike and Thelma Mwadzaya, “Taskforce Recommends I for Intersex as a New Gender Marker” Deutsche Welle (April 17, 2019) <https://www.dw.com/en/a-third-gender-for-kenya/a-48375912> accessed March 27, 2024
37 Katy Migiro, “Kenya takes step towards recognising intersex people in landmark ruling” Reuters (2014) https://www.reuters.com/article/kenya-intersex-idUSL6N0TP1RB20141205 accessed on 11 July 2023
38 Andrew Wasike and Thelma Mwadzaya, “Taskforce Recommends I for Intersex as a New Gender Marker” Deutsche Welle (April 17, 2019) <https://www.dw.com/en/a-third-gender-for-kenya/a-48375912> accessed March 27, 2024
40 Carpenter M, “Global Intersex, an Afterword: Global Medicine, Connected Communities, and Universal Human Rights,” Interdisciplinary and Global Perspectives on Intersex (Springer Nature 2022)
41 Walker M, Interdisciplinary and Global Perspectives on Intersex (Palgrave Macmillan 2022)
42 “‘Addressing and Responding to Racial Discrimination in the Criminal Justice System’” (OHCHR, May 18, 2022) <https://www.ohchr.org/en/statements/2022/05/addressing-and-responding-racial-discrimination-criminal-justice-system> accessed March 27, 2024
43 The law was enacted to among other purposes give effect to article 25(a) and 29(d) of the Constitution and to give effect to the principles of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
44 ONCHARI R, “Ordeal of Intersex People as Human Rights Body Pushes for Intersex Bill, 2023 » Capital News” Capital News (May 24, 2023) <https://www.capitalfm.co.ke/news/2023/05/ordeal-of-intersex-people-as-human-rights-body-pushes-for-intersex-bill-2023/> accessed March 27, 2024
45 National Council on the Administration of Justice, ‘The Status of Intersex Persons in the criminal Justice System in Kenya’ https://www.knchr.org/Portals/0/REPORT-ON-INTERSEX-PERSONS%203_1.pdf> accessed 10 July 2023.
46 “Kenya: Kakuma Refugee Camp Complex Not Yet Safe for LGBTI Refugees” (Amnesty International, May 19, 2023) <https://www.amnesty.org/en/latest/news/2023/05/kenyas-kakuma-refugee-camp-not-yet-safe-for-lgbti-asylum-seekers/> accessed March 27, 2024
47 Joseph Odera, “Intersex in Kenya: Held Captive, Beaten, Hacked. Dead.” 76 CRIMES (December 23, 2015) <https://web.archive.org/web/20160425162007/https://76crimes.com/2015/12/23/intersex-in-kenya-held-captive-beaten-hacked-dead/> accessed March 28, 2024
48 Home Office, Country Policy and Information Note Kenya: Sexual orientation and gender
identity and expression April 2020 (Vol 3) <https://www.justice.gov/eoir/page/file/1269491/download>, accessed 31 July 2023.
49 Esther Akello Ogola, “#JusticeForSheila: Kenyan Anger after Lesbian’s Murder” BBC News (April 22, 2022) <https://www.bbc.co.uk/news/world-africa-61192594> accessed March 27, 2024.
50Gerald Bwisa, “50-Year-Old Intersex Woman Raped and Killed in Trans Nzoia” Nation (May 5, 2022) <https://nation.africa/kenya/counties/trans-nzoia/50-year-old-intersex-woman-raped-and-killed-in-trans-nzoia-3805548> accessed March 18, 2024
51 Mathias Kinyoda, “JOINT STATEMENT ON THE INVESTIGATION INTO THE MURDER OF EDWIN ‘CHILOBA’ KIPROTICH KIPTOO” (Amnesty International, January 9, 2023) <https://www.amnestykenya.org/statement-on-edwin-chiloba/> accessed March 27, 2024
52 “20200514 OConnor to Payne Homophobic Attack in Kenyan Refugee Camp” <https://www.amnesty.org.au/wp-content/uploads/2021/05/20200514-OConnor-to-Payne_Homophobic-attack-in-Kenyan-Refugee-Camp-1.pdf> accessed March 27, 2024
53 Selina Teyie, ‘Stop Laxity: Put same efforts in solving pending LGBTQ killings – activists’ The Star (Nairobi, 10 January 2023) <Put same efforts in solving pending LGBTQ killings - activists (the-star.co.ke)> accessed on 27 March 2024
54 Amnesty International, Kenya: Kakuma refugee camp complex not yet safe for LGBTI refugees (19 May 2023) <Kenya: Kakuma refugee camp complex not yet safe for LGBTI refugees - Amnesty International> accessed 25 March 2024
55 “20200514 OConnor to Payne Homophobic Attack in Kenyan Refugee Camp” <https://www.amnesty.org.au/wp-content/uploads/2021/05/20200514-OConnor-to-Payne_Homophobic-attack-in-Kenyan-Refugee-Camp-1.pdf> accessed March 27, 2024
56 National Gay and Lesbians Human Rights Commission & Amnesty International: Kenya: “Justice Like any other Person” Hate Crimes and Discrimination against LGBTI Refugees p25-36
57 Ibid
58 Intersex Persons Bill 2023, S 2
59 Intersex Persons Bill 2023, s 5(2) (c)
60 Cathren Cohen, “Surgeries on Intersex Infants Are Bad Medicine” (National Health Law Program, July 1, 2021) <https://healthlaw.org/surgeries-on-intersex-infants-are-bad-medicine/> accessed March 27, 2024
61“LGBT Rights” (Amnesty International, March 5, 2021) <https://www.amnesty.org/en/what-we-do/discrimination/lgbti-rights/> accessed March 27, 2024; Cathren Cohen, “Surgeries on Intersex Infants Are Bad Medicine” (National Health Law Program, July 1, 2021) <https://healthlaw.org/surgeries-on-intersex-infants-are-bad-medicine/> accessed March 27, 2024
62 “LGBT Rights” (Amnesty International, March 5, 2021) <https://www.amnesty.org/en/what-we-do/discrimination/lgbti-rights/> accessed March 27, 2024
63 “WMA - The World Medical Association-Right to Health” (WMA - The World Medical Association-Right to Health, 2024) <https://www.wma.net/what-we-do/human-rights/right-to-health> accessed March 27, 2024
64 Intersex Persons Bill 2023, s 9
65 United Nations (UN), Special Rapporteur on Torture (2013), Report of the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Juan E. Méndez, Human Rights Council, Twenty-second session, Report No. A/HRC/22/53, 1 February 2013
66 Intersex Persons Bill 2023, s 6(2)
67 Report of the Australian Senate community affairs references committee “Involuntary or coerced sterilisation of intersex people in Australia” (2013) 2 <https://isupport.org.au/wp-content/uploads/2019/10/Senate-Enquiry-Sterilsation-2013-report.pdf> accessed 18 July 2023
68 Judicial Review 147 of 2013
69 United Nations (UN), Special Rapporteur on Torture (2013), Report of the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Juan E. Méndez, Human Rights Council, Twenty-second session, Report No. A/HRC/22/53, 1 February 2013
70 Ibid
71 The case of Republic v Kenya National Examinations Council & another Ex-Parte Audrey Mbugua Ithibu further exemplifies this point.
72 Intersex Persons Bill, s 10
73 Intersex Persons Bill, s 24 and 25
74 The Constitution of Kenya 2010, Article 3(1)
75 The Constitution of Kenya 2010, Article 10
76 The Constitution of Kenya 2010, Article 19(3)
77 The Constitution of Kenya 2010, Article 21(1)
78 The Constitution of Kenya 2010, Article 26
79 The Constitution of Kenya 2010, Article 27
80 A wide and contextual interpretation of the right to inherent dignity can be construed to prohibit the humiliation of intersex persons.
81 The Constitution of Kenya 2010, Article 53
82 Persons Deprived of Liberty Act 2014, s 12 (3) (e)
83 Arrest and Detention Rules or Prisoners and accused persons.
84 Universal Declaration on Human Rights (adopted 10 December 1948) 217 A(III) (UNGA), Article 2
85 “Independent Expert on Sexual Orientation and Gender Identity” (OHCHR) <https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity> accessed on 28 March 2024
86 UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol 1557, p. 3, 20 November 1989. Treaty no. 27531. United Nations Treaty Series, Article 7
87 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, United Nations, Treaty Series, vol. 993, p. 3, 16 December 1966, Article 12
88 Established in 1987
89 Centre for Human Rights, University of Pretoria ‘Study on the Human Rights Situation of Intersex Persons in Africa’<https://www.chr.up.ac.za/images/researchunits/sogie/documents/Intersex_Report/Intersex_report_Oct_Sept_2022.pdf> accessed 18 July 2023
90 African Commission on Human and People’s Rights, Resolution on the Promotion and Protection of the Rights of Intersex Persons in Africa - ACHPR/Res.552 (LXXIV) 2023, 21 March 2013 <https://achpr.au.int/en/adopted-resolutions/resolution-promotion-and-protection-rights-intersex-persons> accessed on 27 March 2024
91 African charter on Human and Peoples’ Rights (1981), Article 45
92 African charter and Welfare of the Child (1990), Article 6
93 African Charter and Welfare of the child (1990), Article 21
94Emi Koyama, “Intersex Initiative: Adding the ‘I’ to LGBT” <http://www.intersexinitiative.org/articles/lgbti.html> accessed March 28, 2024
95 The Constitution of Kenya 2010, Article 2(5) provides that the general rules of international law shall form part and parcel of the law in Kenya, and Article 2(6) provides that any Treaty or Convention ratified by Kenya shall form part of the law of Kenya.