Whenever an intersex child is born, the whole family is obviously troubled and affected. A host of legal and social related issues arise immediately.The parents have to grapple with questions like the name, the sex, the future of the intersex child. Some parents accept the child as they are.
Others treat these children as a curse or a taboo baby and they abandon or kill the innocent children. Others keep them in hiding while many opt to take them to hospital where they undergo surgeries to make them conform to either male or female gender. All this time the innocent child does not have the capacity to appreciate what’s happening. It is a very difficult time for the family.
The law is supposed to protect such vulnerable children. However, The Children Act of Kenya does not define the intersex child. The Act however defines parental responsibility. Luckily, the Act does not make any distinction when it comes to the children. All children are equal. Section 4 of the Act provides for the best interest of the child principle. This must cover and includes the intersex child.
The Constitution has in Article 53 provided for the best interest of the child principle and specifically offers insulation for all children. This must be read to include intersex children.
The only legislation that defines the intersex is The Persons Deprived of Liberty Act 2014 defines an intersex “intersex” means a person certified by a competent medical practitioner to have both male and female reproductive organs. Intersex children have a host of rights which include the right to privacy and bodily autonomy.
On the other hand the parents have rights over the children and they are supposed to make decisions for the child. Where do the two competing rights meet? How are the parents and the guardians of intersex children supposed to exercise parental responsibility? How far can they stretch so as not to violate the rights of their intersex children?
We must start interrogating questions like;
Whether or not intersex children are entitled to special protection.
Whether or not there is a need for data to be collected on intersex children.
Whether or not there is a need to carry out the corrective surgeries.
Whether or not we need special guidelines to govern medical procedures performed on intersex children whenever there is a medical emergency.
We have no idea how many intersex children there are in Kenya. We need data so as to offer protection to these children.
The truth is that many children who are born intersex are exposed to unnecessary corrective surgeries in the name of correcting their genitalia.
Do we need to subject these children to the surgical knives? The society, the parents and doctors must understand the implications and consequences of the operations. Are the religious leaders addressing the issue of the intersex child? Information will be the power that will help us protect and promote the rights of these children. We need data and legislation.
The Prohibition of Female Genital Mutilation Act of Kenya was enacted to prohibit the practice of female genital mutilation, to safeguard against violation of a person’s mental or physical integrity through the practice of female genital mutilation and for connected purposes.
Under Section 2 of The Act, “sexual reassignment procedure” means any surgical procedure that is performed for the purposes of altering (whether wholly or partly) the genital appearance of a person to the genital appearance (as nearly as practicable) of a person of the opposite sex.
This Act attends to the female genital mutilation. What about the intersex genital mutilation?
I believe we need a legislative structure that will insulate and protect the intersex children from unwanted surgeries which otherwise are nothing less than intersex genital mutilation or forced circumcision. Such legislation will go a long way in ensuring that there are no surgeries carried out on the innocent children in a space with no legislation.
The law must ensure that these children enjoy equal benefit of the law as guaranteed under the Constitution at Article 27.
The parents and the guardians will then be in a position to exercise parental responsibility in a manner that does not expose them from future law suits. The AG shall also file a report to this Court within 90 days on the status of a statute
regulating the place of intersexual as a sexual category and guidelines and regulations for corrective surgery for intersex persons.
Let’s engage in the issues of these vulnerable children.