EXPERT COMMENT

Intersex people deserve recognition, dignity and full rights and protections

In Summary

• Chapter 4 of the Bill of Rights of the 2010 Kenyan Constitution champions equality and freedom from discrimination for all people.

• This stigmatisation and discrimination have locked many intersex children out of schools because of their sex, thus disadvantaging a whole Kenyan population and directly abusing the rights of the child.

Roy* an intersex child who underwent a corrective surgery and assigned the wrong sex by doctors outside their home in Eastleigh
Roy* an intersex child who underwent a corrective surgery and assigned the wrong sex by doctors outside their home in Eastleigh
Image: FILE

Chapter 4 of the Bill of Rights of the 2010 Kenyan Constitution champions equality and freedom from discrimination for all people. 

This means that before the law we are all equal with equal protection of the law.

The State, therefore, has a responsibility to guarantee every person these rights.

Therefore, it should not discriminate directly or indirectly against any person on any grounds, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

However, a few contradictions come in through the same Bill of Rights, only referring to women and men as having the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

This leaves out the intersex persons, making them vulnerable to all manner of abuse, ridicule, stigmatisation and loss of rights.

Failure to recognise them makes them marginalised, thus unable to access various services like health, education and even basic utilities like toilets.

This stigmatisation and discrimination have locked many intersex children out of schools because of their sex, thus disadvantaging a whole Kenyan population and directly abusing the rights of the child.

Intersex children have also been unable to get vital identification documents such as birth certificates, national identity cards, passports and other documents, as Kenyan law provides for only male and female.

The task force report on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya says their official recognition is key in guaranteeing them their rights under Chapter 4 of our Constitution.

We welcome this, as it helps in implementing our Constitution and treating all human beings equally, irrespective of their walk of life or social orientation.

We can't be a nation that claims to be one under one law, while we treat a section of our population differently and expose them to unfair prejudice.

This task force recommendation will provide a framework to help better protect them as well as give them a voice in a democratic society.

Now it's up to Parliament to expedite the process of legislating on this matter to make sure we have equal treatment, respect and protection of the dignity of the intersex persons and of all Kenyans.

Amnesty International-Kenya Executive Director spoke to the Star