Today the world celebrates Intersex Awareness Day. The time has come for us to accept intersex children. Ignorance and lack of awareness are the greatest enemies in the drive towards promoting the rights of the intersex child.
We must stop speaking in low tones. We must speak out about these special children. A healthy conversation around the intersex is a great milestone that will translate into the protection and promotion of the rights of the intersex children under Article 3 and 20 of the Constitution.
The Persons Deprived of Liberty Act, 2014 defines ‘intersex’ to mean a person certified by a competent medical practitioner to have both male and female reproductive organs. Although this definition is extremely shallow, it offers legal recognition of the intersex members of our society irrespective of whether they are citizens or not.
The Children’s Act does not define the intersex child. The Act however defines a child and what amounts to parental responsibility. The Act does not make any distinction when it comes to children. All children are equal. We must then read in it the intersex child to be part of the children who must benefit from the provisions of the Act since they are human beings.
Children have rights which include the right to privacy and bodily integrity and 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 go without violating the rights of their intersex children? The approach to the legal dynamics is very different when dealing with children of a category like the intersex.
We must start asking questions such as 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 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.
Children who are born intersex are exposed to unnecessary corrective surgeries. Society, 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 — a legislative structure that will insulate and protect the intersex children from unwanted, painful, irreversible surgeries, which otherwise are nothing less than intersex genital mutilation or forced circumcision.
Such legislation will go a long way in ensuring no surgeries carried out on the innocent children in a space that has no legislation. The law must ensure that these children enjoy equal benefit of the law as guaranteed under Article 27 of the Constitution. The parents and the guardians will then be in a position to exercise parental responsibility in a manner that does not expose them to future lawsuits.
The UN has tightened its noose on the countries that are subjecting the innocent children to these operations. The Chilean and French governments were recently on the radar over the issue at the UN.
In appreciating the need to protect the intersex children, the courts have embraced their plight. In a judgment delivered on December 5, 2015 by Justice Lenaola in Petition No. 266 of 2013, Baby A Vs Then AG and others-www.kenyalaw.org, the judge issued the following directions amongst others,
1. The AG shall submit to this Court within 90 days of this judgment information related to the organ, agency or Institution responsible for collecting and keeping data related to intersex children and persons, generally.
2. 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.
The AG set up a task force to look into the number, challenges and distribution of the intersex children. These children are born into Christian, Muslim, Hindu and indeed in all 47 counties. They are born in all continents.
The Registration of Births and Deaths Act has no room for the intersex. I believe Parliament has also opened the conversation on the rights of the intersex.
Let us engage in the conversation as we create room for these children under Article 10 and 260 of the Constitution as we join intersex persons in celebrating the International Awareness Day of the Intersex.
