Speaking the unspeakable! Interrogating the rights and legal recognition of intersex persons in Kenya

Abstract

An intersex person is one whose biological sex cannot be classified clearly as either male or female. This ambiguity may be anatomical, hormonal, gonadal or chromosomal. Intersex births are estimated at between 1.7% (Nthumba, 2008) and 3% (Haas, 2006) or between 748,000 and 1,320,000 of Kenya’s population which is estimated at around 44 million people. The figures are mind-boggling, yet nothing much is known or written about intersex persons in Kenya. Having served in the Kenyan Judiciary for more than 20 years, the author has risen to the rank of Chief Magistrate and has served in the Childrens’ Court. It is here in 2009 that she had her first contact with an intersex child who was brought before her as a child in need of care and protection during the arraignment of the child’s mother for child neglect. A victim impact statement revealed that the child was suffering because of the stigma directed at the child’s intersex status and the community’s traditional attitude against intersex babies, who could be killed at birth. The child was not in school because of the child’s parents’ fear that the child would be ridiculed by others. A few years later, in the case of RM v The Attorney General and others [2010] eKLR, the Constitutional Court made the finding that issues of intersex persons are not the concern of society and do not deserve government regulation or protection. Based on her experiences, the author was of the view that this finding was far removed from the lived realities of intersex persons. Using the Grounded Women’s Law Approach, the author sought ‘to describe, understand and improve the position of intersex persons in the law and in the society’. She did this by making intersex persons the focus of her study. The study found that, since society is organized and based on the sex/gender binary of female and male, intersex persons are a marginalised sex minority group who face discrimination from the moment of their birth, as some people regard them as abnormal and a curse. Statutory birth registration law does not even recognise their existence. Their right to self-determination is violated through the assignment of a sex/gender at birth, sometimes through corrective surgery and without their consent, yet their bodies may develop into the sex opposite to the one imposed. As a result, they are forced to live secret lives, with no understanding of their condition. The study concludes there is an urgent need for intersex consciousness raising and organizing so that they can speak in their own voices and explain their needs. The Constitution has empowered Kenyan Courts to interpret its values and provisions in such a way as to develop the law to safeguard the rights and freedoms of all its citizens as contained in the Bill of Rights. This constitutional power imposes on the Courts the duty to provide a platform for intersex persons to re-engage meaningfully with Kenyan society in order to seek and earn, at least to start, the fundamental and existential legal recognition they deserve.