JUSTIFICATION FOR AN INTERSEX PERSONS LAW IN KENYA
1. Why does Kenya need a law on intersex persons?
Intersex persons can be categorised as a minority, as well as a vulnerable and marginalised group in Kenya. While the Constitution of Kenya (CoK) 2010, and a host of international legal instruments articulate various rights applicable to all persons including intersex persons, they do so only in a supplementary manner. Only recently has domestic legislation, in the form of the Children Act of 2022 (Cap. 141), directly addressed the rights of intersex children.
2. What has been done so far to push for the proposal to have a law?
The enactment of the Children Act 2022 is a significant boost in this regard. Furthermore, in 2017, the Hon. Attorney General formed the Taskforce on Policy, Legal, Institutional and Administrative Reforms regarding the Intersex Persons in Kenya. The taskforce was mandated to compile data on intersex persons, conduct analyses on the policy, legal, medical, administrative and institutional frameworks with regard to intersex persons and to recommend reforms. These moves have set the stage to push for a specific law on the rights of intersex persons in Kenya, who still remain marginalised in several other areas. In terms of institutional strength, there is also in existence the Intersex Persons Society of Kenya, which describes itself as a “grassroots non-profit organisation dedicated to advocating for the rights, awareness and inclusion of intersex individuals in Kenya”
3. What are some of the gaps that have necessitated a law on intersex persons?
a) Lack of a unified definition of intersex
Having a uniform definition of intersex in the proposed law will serve to cure the ambiguities that surround intersex persons. For example, the Persons Deprived of Liberty Act of 2015 (Cap. 90A) defines intersex as “a person certified by a competent medical practitioner to have both male and female reproductive organs”. However, a look at the report by the taskforce shows why this simplistic definition is problematic. The report highlights that variations in chromosomes and hormones, and secondary characteristics such as muscle mass, hair distribution and breast structure should also be factored in when making an assessment as to whether or not a person is intersex.
Therefore, having a standard uniform definition across all statutes that codify the rights of intersex persons will serve to debunk the misconceptions and misinformation regarding intersex persons, as well as alleviate the stigma they face due to a misunderstanding of their condition.
b) Lack of a specific law occasions more violations of the rights of intersex persons
In 2006, when the Sexual Offences Act (Cap. 63A) was enacted, sexual crimes in Kenya were under the purview of the Penal Code (Cap. 63), whose sentences were deemed too lenient, while the offences themselves were too vague. This therefore meant that perpetrators of sexual offences usually got away with such crimes, hence necessitating the need for a specific law that targeted the entire corpus of sexual offences, including enforcing stiff, minimum sentences for offenders.
In the same vein, having a specific law on intersex persons will be beneficial towards their plight. Interestingly, the aforementioned Sexual Offences Act does not mention intersex persons at all. Therefore, a specific law will be crucial towards preventing targeted sexual abuse of intersex persons, starting with the non-consensual corrective surgeries that they are forced to undergo at the behest of their parents.
c) Lack of specific protections for intersex persons in conflict with the law
The RM case ( RM v Attorney General and 4 others [2010])
put a spotlight on the manner in which intersex persons in conflict with the law are further victimised by the criminal justice system. In a report by the National Council on the Administration of Justice (NCAJ), it was revealed that there remain several gaps in legislation, especially in respect of statutes dealing with persons in conflict with the law. The report revealed that apart from the Persons Deprived of Liberty Act of 2015 (Cap. 90A), several pieces of legislation including the Prisons Act of 1963 (Cap. 90), Borstal Institutions Act of 1963 (Cap. 92), Probation of Offenders Act of 1943 (Cap. 64), and the Criminal Procedure Code of 1930 (Cap. 75) neither make no mention of special provisions for intersex persons nor do they provide comprehensive safeguards to ensure the protection of the personal and physical integrity of the intersex persons in conflict with the law. A specific law will therefore cure these legislative deficiencies and also prompt amendments to these existing laws to align them with the proposed law.
d) Lack of civic education and awareness surrounding intersex persons
The Constitution of Kenya mandates Parliament to facilitate public participation and involvement in the legislative process (Art. 118 (2)). Due to the myriad misconceptions surrounding intersex persons, and the degree to which they are regarded as misfits by society, initiating a legal process that involves public participation will go a long way towards creating awareness on the rights of intersex persons. It is also noteworthy that one of the main aims behind the formation of the taskforce was to enable the collection of more data on intersex persons, data which is crucial in terms of ensuring that intersex persons are prioritised in the national human rights conversation.
e) Clarity needed on registration and amendments of civil documents
From the point of birth, intersex persons face challenges relating to their registration. The laws of Kenya only recognise the male and female gender, although the recent national census in 2019 included intersex as a gender marker. Two cases come into mind in respect of this matter: the case of
Baby ‘A’ (Suing through the Mother EA) & another v Attorney General & 6 others [2014] and the case of Republic v Kenya National Examinations Council and another ex parte Audrey Mbugua Ithibu [2014].
In the Baby ‘A’ case, the petitioner was born with both male and female genitalia, and a question mark (“?”) was placed in the column indication the baby’s gender. The petitioner had difficulty being issued with a birth certificate. In the Audrey Mbugua case, the applicant was born as Andrew, a male, but was later diagnosed with Gender Identity Disorder (GID). The applicant wished to change the names on one of her certificates but faced challenges doing so. This case showed that being identified as either a male or female as an intersex person is not a cut-and-dried matter. An intersex person may, later in life, wish to identify as either a male or a female, or may undergo biological changes that make them predominantly male or female and may want to alter their civil documents to correspond to these changes. This is an avenue that should be provided to them by the State.
f) Underrepresentation of marginalised groups
Parliament is required by the Constitution to enact legislation to promote the representation of minorities and marginalised groups, by dint ofArticle 100. Kenya is still grappling with the representation of women and is yet to find the requisite numbers to realise gender balance in elective and appointive bodies. Seeing that the protection of marginalised groups and minorities is a constitutional requirement, intersex persons, in the same measure, need to be included in the representation debate. Having a specific law will go a long way towards realising this goal, as several African countries with specific laws relating to gender have shown, Senegal being one of them.
What is the way forward to realise the enactment of this proposed law?
Obviously, a lot of civic education, awareness and lobbying is needed by the Intersex Persons Society of Kenya, and human rights commissions such as the Kenya National Commission on Human Rights (KNCHR), NGOs and various lobby groups.
More data on intersex persons is also needed, in terms of their numbers, age and their various experiences, in order to gain a better understanding as to how best articulate their rights.
Similarly, political good will to debate the Intersex Bill in Parliament is also crucial, in not only upholding Parliament’s commitment to abide by its constitutional mandate under Article 100, but to also promote a general respect for the rights of intersex persons as part and parcel of the Kenyan population entitled to all the rights under the Constitution and international legal instruments binding on Kenya.
Training and sensitisation of medical officers, officers of the law, members of the Judiciary and other officers of the State is needed in order to ensure that intersex persons who come across any of these officers while seeking services are treated with dignity, respect and the utmost care.
