Non-recognition of Intersex Persons and Its Impact on Their Human Rights: the Case of Kenya.

Abstract

As a law student in the early eighties, a friend undertaking a course in midwifery and I used to share our daily learning experiences. One day, she told me about a child who had been born with female and male external genitalia, both fully formed. This ‘unusual’ birth threw everyone into a state of confusion at the hospital where she was training. There was a flurry of activity as people came to peek at the child’s double genital. Some turned away with shocked revulsion while others laughed and labeled the child a ‘curse’. What struck my then novice legal mind was the way the child was ‘documented’. On the first legal form officially used to recognize the birth of a human being, a question mark (?) was inserted against the sex/gender description of ‘Tim’, as the child was named. In all subsequent hospital records and discharge notes, Tim’s sex/gender description was declared as ‘query boy’ (?), ‘query girl’ (?) and ‘unknown’. This was an indication that the intersex gender was ‘unknown’ and ‘nonexistent’ under Kenyan law. Years later, I encountered the cases of RM v Attorney General & 4 Others [2010] eKLR and Baby A and Another v the Attorney General and Others (2014) eKLR, both involving individuals, who like ‘Tim’ had been born with double genitalia. They too could not get identity documents due to the lacuna in the documents’ issuance legal regime, which fails to factor in people born with the intersex gender. They too were stigmatized. This was a reflection of fundamental gaps in the legal documentation regimes. Starting from the premise that legal recognition is realized through the medium of accurate government issued identity documents, this research aims at examining the gaps and shortcomings in the regimes relating to legal recognition for people born intersex in Kenya. It is driven by the key hypothesis that the law is deficient in this regard thereby negatively impacting people born intersex from the cradle to the grave. The research further contends that recent piecemeal legislative changes have not helped seal the gaps in the identity documents’ issuance regimes and that discrimination and exclusion against intersex persons seeking to access their livelihood rights and other unquantifiable human needs remains intact. Its primary objective is to identify those legal gaps and inadequacies with the specific objectives of investigating if and how the gaps adversely impact intersex persons’ access to various socio-economic rights and certain human needs. To achieve the primary and specific objectives, the research seeks to answer an overarching question being whether there exists gaps, shortcomings, and inadequacies in the legal regime

through which identity documents are issued, when it comes to documenting intersex persons. It also seeks to answer specific questions on what those gaps are and how they have translated to denial of access to specific socio- economic rights and human needs for people born in that unique sex/gender. And towards responding to the research questions, achieving the objectives and testing the key hypothesis, the research uses narratives drawn from intersex persons’ lived experiences. The research is undertaken in six chapters. The first introduces the work and sets the context within which the research is undertaken by setting out the problem statement, the research objectives and the justification. Chapter two seeks to determine what deficiencies exist in the legal framework through which precise identity and other crucial documents are issued to Kenyans, and how they discriminate and exclude the intersex person. Chapter three examines the manner in which exclusion and discrimination has negatively impacted their rights in the areas of health, education and employment. Chapter four proceeds to evaluate the negative impact on the unquantifiable human needs including dignity, autonomy, personal liberty and personal rights such as the right to a name, to family life and even dignity at death. Drawing from responses gathered from the field and illustrative experiences from selected jurisdictions discussed in chapter five, the research, in chapter six, arrives at a number of multi-dimensional corrective recommendations. Key among these are legislative review of the identity documents’ issuance legal regime and specific policy formulation in health, education and employment sectors. Others are societal sensitization, advocacy and awareness measures aimed at promoting social acceptance.