REPORT

Make intersex third gender in Kenya - Experts

In Summary

• The report by a range of experts says about 300 cases of intersex persons have been documented, though the number is believed to be much higher.

• An intersex person is an individual born with both male and female sex organs in a range of physical conditions

Advocate John Chigiti, the lead consultant of the taskforce on policy, legal, institution and administrative reforms regarding intersex persons in Kenya during a validation forum in Mombasa
Advocate John Chigiti, the lead consultant of the taskforce on policy, legal, institution and administrative reforms regarding intersex persons in Kenya during a validation forum in Mombasa
Image: ERNEST CORNELL

Thanks to Baby A, Kenya might soon have a third gender introduced into its laws if an experts' report on intersex issues is adopted.

The report issued yesterday cites the right to equality and equal protection of the law. It cites problems and discrimination faced by intersex persons and makes a list of recommendations.

The report by a range of experts says about 300 cases of intersex persons have been documented, though the number is believed to be much higher.

 An intersex person is an individual born with both male and female sex organs in a range of physical conditions. Sometimes they are also known as hermaphrodites.

If the state adopts the report, it would mean there will be a new third gender called Intersex with the marker of the letter 'I'  in addition to already recognised genders of female and male.

The report examines issues of education curriculum in primary, secondary and tertiary education, with the aim of recognising intersex people. It recommends specific training in the syllabus and training modules on sex development and categories including biology, anatomy,  life skills, anthropology, criminology and theology, among others.

Intersex children face discrimination and an uphill task in getting admitted to schools. Many don't finish school, dropping out due to the stigma associated with their sex.

They have not even been able to get birth certificates and other vital documents, such as national Identity cards because the boxes provided for gender only cite male and female.

This led to a court case filed on behalf of a five-year-old child. She challenges discriminatory laws involving intersex children like herself.

'Baby A' successfully challenged the law and managed to get a court order directing the state to conduct a census of intersex persons countrywide. in the entire country.

The child asked for an order declaring that all surgery on intersex infants be undertaken only after the court's approval. The issue is sensitive as many parents decide shortly after birth on radical surgery without informed consent as the child grows older, understands the condition and can make a choice.

Based on that court order, the state assembled experts who deliberated on issues involving intersex persons, did a census and compiled a report. The team is called the Task Force on Policy Legal, Institutional and Administrative Reforms Regarding Interesex Persons in Kenya. It includes various medical experts, educators, sociologists, lawyers and representatives of various sectors of society.

The team recommended, among many things, amendment of the word 'sex', which now will mean female, male and intersex.

The team said Section 18 of the Borstal Institutions Act discriminates against intersex persons. Experts want it substituted with legislation that allows male, female and intersex persons to be detained in appropriate separate facilities for the safety of intersex people.

If an intersex person is placed under the supervision of a probation officer, the team said, that officer ought to be of a sex acceptable to the intersex person.

The experts called for a favourable law to be put in place allowing intersex persons to amend their sex marker from male or female to that of intersex after they produce a medical certificate. The certificate should be issued by a competent medical doctor designated for that purpose by the director of medical services.

Intersex people also should be allowed to change their sex marker on their passports as long as they have presented a medical certificate to the Immigration department, the experts say.

The report also recommends an amended definition of intersex to mean a person conceived and born with a biological sex characteristic that cannot be exclusively categorised in the common binary of female and male. This could be due to anatomical, hormonal, ovarian or chromosomal patterns that could be apparent prior to, at birth, in childhood, puberty or adulthood.

To ensure new mothers are not excluded, experts suggest developing information booklets on prenatal counselling to incorporate sensitisation on sex development.

They also recommend the creation of an  Also recommended is the creation of an equalisation fund for medical care for intersex persons.

The team recommends a fund to cater for all medical-related interventions for intersex persons, due to the high cost of specialised intersex medical care.

Experts recommend the state gives free or subsidised medical insurance health cover under the NHIF or any other scheme for intersex persons.

On medical intervention,  experts say any surgical or hormonal intervention for children concerning their intersex status should only be carried out in case of a medical emergency based on informed consent.

“The MOH, director of medical services in consultation with the relevant regulatory body (Kenya Medical Practitioners and Dentists Board) [should]develop a protocol on surgical and hormonal interventions that constitute medical emergencies,” the report reads.

Experts suggest streamlining of compulsory genetic testing within specialised programmes to include intersex person’s care and protection in health facilities. This is aimed at allowing them access to the highest attainable healthcare.

The team said the state needs to map centres of excellence in Levels 5 and 6 hospitals to treat intersex persons.

The team collected data on the population of intersex persons from different health facilities, civil society groups and even communities.

Experts say there are at least 300 documented intersex persons in Kenya. Many more are unreported.

Those interviewed by the team cited numerous problems, especially stigma.

Most of the time they cannot access hospitals when they are sick because they fear prejudice they would suffer.

Those who seek 'corrective' surgery find the high costs a stumbling block.

Surgery ranges from  Sh125,000 to Sh1.5 million, but many intersex people cannot afford operations as they do not have jobs that require basic documents.

Others might require hormonal therapy, costingSh4,000 to Sh12,000 per session, excluding  Sh6,000 initial consultation fees.