• Intersex, previously known as hermaphrodite, is a biological condition where one is born with both male and female reproductive organs.
• Contrary to common perceptions, intersex goes beyond having male and female sexual organs. The person’s biological makeup is both male and female.
What is intersex?
The first question at birth is whether the baby is male or female. But that is now changing. This month, Kenya will take one more step in recognising a third sex.
For the first time, intersex persons will be accorded a separate identity in the 2019 Population and Housing Census to be conducted August 24-30.
It is a big win for human rights defenders who have waged a long campaign for formal recognition and an end to stigma and discrimination.
Intersex, previously known as hermaphrodite, is a biological condition where one is born both male and female.
A government task force set up in 2017 defines intersex as: “A person who is conceived and born with a biological sex characteristic that cannot be exclusively categorised in the common binary of female or male due to their inherent and mixed anatomical, hormonal, gonadal (ovaries and testes) or chromosomal (X and Y) patterns which could be apparent prior to, at birth, in childhood, puberty or adulthood.”
Contrary to common perceptions, intersex goes beyond having male and female sexual organs. The person’s biological makeup is both male and female.
It is estimated that between 0.05 to 1.7 per cent of babies worldwide are born intersex.
Intersex persons have historically suffered discrimination and stigma attached to their ambiguous sexuality. They are considered as a curse in many communities. Some have been forced to undergo “corrective” surgery.
The High Court in 2010 and 2014 upheld the rights of intersex persons to non-discrimination and affirmed their right to protection from torture, cruel, inhumane and degrading treatment, citing Article 27 (4) of the Constitution.
The court called for comprehensive data on intersex persons in Kenya to inform relevant reforms to address problems faced by intersex persons as a marginalised group.
Intersex persons enjoy protection under the Persons Deprived of Liberty Act 2014, which contains specific provisions for upholding the human rights of inmates.
The National Police Service Standing Orders provide that intersex persons in detention have the right to choose the sex of the officer to conduct any body searches and that they shall be held separately from male and female inmates.
Parliament in 2017 recommended the introduction of an Intersex (I) marker, public awareness, generation of statistics, access to healthcare and redress for human rights violations.
Numerous international and regional treaties Kenya has signed protect persons against discrimination on any grounds including sex. The treaties have specific provisions for the protection of the dignity of intersex persons.
The 2017 government task force established that:
- Most intersex persons and their families go through shock, anger, embarrassment, confusion and ultimately acceptance on discovery of intersex status
- Majority of intersex persons of school-going age experience low levels of access to education, with only about 10 per cent of them attaining tertiary education
- A paltry five per cent of those surveyed recognised themselves as intersex, while the others are mostly confused about their exact status due to low levels of awareness and support.
- 54 per cent of the respondents ranked their experience in accessing healthcare as poor due to high cost of treatment and few specialised hospitals
- Study found unanimity on the views of intersex persons on surgery, that is, the need to wait for the child to reach puberty and allow the manifestation of the dominant sex characteristics; let the child consent to the medical surgical intervention; and have all the necessary medical diagnostic tests done before the surgery
- Majority of intersex persons had birth certificates, but the recorded sex conflicts with the self-recognised sex. The birth certificates make it difficult for intersex persons to acquire IDs
- Intersex persons who have been in contact with law enforcement officers felt that their privacy was eroded through intrusive and unnecessary searches
- Those detained were mixed with male or female inmates, exposing them to the dangers of ridicule, sexual harassment, rape and attempted rape
The task force recommended:
- Formal recognition of intersex status and introduction of provisions on equal treatment, respect and protection
- Expeditious provision of birth certificates, identification documents, passports and other official personal documentation with the Intersex (I) marker
- Ministry of Health to formulate specialised programmes to provide for intersex persons’
- care and protection in health facilities
- Ministry of Health and stakeholders to formulate harmonised and comprehensive treatment guidelines for medical care and protection of intersex children
- State to establish a fund to cater for all medical related interventions for intersex persons due to the high costs
- State to mount awareness campaigns, collect comprehensive data on intersex persons and provide better social, economic and legal protections
As intersex persons are set to be recognised as a distinct group in this year’s census, public awareness campaigns are needed to enable parents, communities and institutions end stigma and discrimination attached to ambiguous sex identity.