• Discrimination of the intersex persons is due to a complete lack of awareness
Image: FAITH MUTEGI
Book: Intersex Persons and the Law
By: John Chigiti SC
Historically, intersex persons have been known and referred to as hermaphrodites. As the human rights of intersex persons has become better appreciated and understood, this definition has evolved to become a better suited terminology.
In some quarters, the term Developmental Sexual Disorder, or DSD, is used to describe the intersex person. In Kenya, a very diverse nation with many ethnic groups, intersex persons are referred to in various terms, like huntha in Kiswahili and kiugu in Kikuyu.
The Births and Deaths Registration Act of Kenya recognises only male and female, not intersex.
The Persons Deprived of Liberty Act 2014, which is a more recent law, goes ahead to define an intersex as a person certified by a competent medical practitioner to have both male and female reproductive organs.
An intersex status means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male or a combination of female and male features or neither female nor male features.
An intersex person is one who is born with both genitalia, male and female. At birth, both genitalia may be pronounced and clearly visible and one set may be more prominent than the other. This means that intersex also includes children and adults whose second set of genitalia develops with time. They have chromosomal patterns and gonads that at birth or at some later stage in life do not fit exclusively into male or female.
My recently published book, Intersex Persons and the Law, seeks to empower, accept and embrace this group of marginalised Kenyans.
The book seeks to demystify legal and human rights issues like the gender, sex of the intersex persons, rights of the intersex child in the family, adoption and parental responsibility, legal recognition, documentation and protection of intersex children in Kenya, education as a right for intersex children, corrective surgery, consent before surgery, post-surgery terrain, access to medical records, the elusive statistics and other issues, such as the right to a name.
The book focuses strictly on children who are born this way and not on people who choose to be such and such a sex at some point in their life.
I decided to fight for this marginalised minority group because when children are born this way, they generally face a very bleak future, given that they usually cannot obtain a birth certificate. And that is what becomes the genesis of the lifelong torture of an intersex person.
If you do not have a birth certificate in Kenya, you can do nothing.
- A child cannot be enrolled in school. If, by some miracle, the parents manage to enrol the child, sooner or later, more issues arise: the child cannot be registered for any national exam, one of the requirements of these being an official birth certificate.
- Without any academic qualifications and school certificates, getting a job becomes an obvious challenge.
- Without a job, they feel rejected and end up isolated with suicidal thoughts. Others turn to crime to survive!
In essence, an intersex person is condemned from the start to a life of misery.
My book looks at the judgment in the High Court in the case of Baby A in 2014 that led The Attorney General to set up a task force on the numbers, distribution and challenges of intersex persons in Kenya and propose recommendations.
The task force observed that what leads to rejection, stigmatisation and discrimination of the intersex persons is a complete lack of awareness on the part of the society.
People have little knowledge about the existence of the intersex. The legal, administrative and structural vacuums that the intersex children exist in the justice system and around the community are a mystery to many. We do not know or understand the social and economic challenges that intersex persons face. Some customary beliefs treat these children as taboo babies and bad omens to the family. Intersex persons, therefore, lack recognition and legal or social acceptance. They remain invisible.
In 2019, the government of Kenya became the first African country to include intersex persons in the national census. This lends an assurance that the government’s budgetary allocation, as well as the health, education and housing policies, will now factor in the intersex community.
Parliament is also in the process of amending the Registration of Births and Deaths Act and the Registration of Persons Act to offer legal accommodation of intersex persons.
It is clear that intersex children have now been embraced by all three arms of the government. We the people have to play our part in ensuring that we accept them.
John Chigiti is a family rights lawyer who can be contacted at [email protected]