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Intersex Persons in Kenya.

Kenya National Commission on Human Rights (KNCHR) is pursuant Article 59 of the Constitution, 2010 and Section 8 of the KNCHR Act, 2011 has the core mandate of ensuring the promoting and protecting human rights in Kenya including safeguarding the rights of intersex persons.

Context

According to the UN Free & Equal Campaign, initiated by the UN Office for Human Rights and a researcher Anne Fausto-Sterling concluded that around 1.7% of newborn babies across the world can be classified as intersex.Despite their growing numbers there remains significant international, regional and national outcry on the prevalence of human rights violations perpetrated against Intersex persons. This has occasioned increased initiatives towards safeguarding their enjoyment and realization of human rights and freedoms.

 

 

KNCHR Intervention

On the basis of complaints received, cases litigated and reports by the commission, Intersex persons in Kenya continue to face human rights violations mainly centered on their legal recognition which has a negative ripple effect in the enjoyment of their other human rights and fundamental freedoms. In this regard, KNCHR has continually advocated to safeguard the realization and enjoyment of human rights for the intersex persons as equal persons before the law.

KNCHR has previously made representations before the parliamentary departmental committee on Administration and National Security following a petition before the committee relating to Intersex Persons as well as in conjunction with other stakeholders participated in the inaugural commemoration of the Intersex Awareness Day in Kenya. Additionally, KNCHR has been an amicus curiae in the R.M vs. Attorney General & 4 others [2010] case, which brought to the fore the challenges faced by petitioner and resultant human rights violations Intersex persons face.

Most recently, KNCHR was an interested party in the  case of E.A & Another vs. Attorney General & 6 others which made key determinations including; the need to develop appropriate legal framework governing issues of Intersex children,  the need to collect data on intersex children and persons in Kenya and the need to formulate guidelines to inform treatment of intersex persons, which led to the formation of the Taskforce on Policy, Legal, Institutional and Administrative Reforms regarding Intersex persons. The taskforce was established by the  Attorney General vide gazette notice no. 4904 on 26th May 2017, with an initial term of 6 months which was subsequently extended and shall expire in October, 2018.

Taskforce On Policy, Legal, Institutional And Administrative Reforms Regarding Intersex Persons In Kenya

The Taskforce on Policy, Legal, Institutional and Administrative Reforms regarding Intersex Persons in Kenya was formed by the Attorney General in May 2017. The membership of the Taskforce is drawn from various institutions including Kenya Law Reform Commission (KLRC), Office of the Attorney General & Department of Justice, Directorate of Immigration & Registration of Persons, National Gender and Equality Commission, Kenya National Commission on Human Rights (KNCHR) and the CRADLE. The Taskforce has the following mandate:

  1. Compile comprehensive data regarding the number, distribution and challenges of Intersex persons;
  2. Undertake comprehensive literature review based on a comparative approach to care, treatment and protection of Intersex persons;
  3. Examine the existing policy, institutional, legislative, medical and administrative structures and systems governing Intersex persons;
  4. Recommend comprehensive reforms to safeguard the interests of Intersex persons;
  5. Develop a prioritized implementation matrix clearly stating the immediate, medium and long term reforms governing the Intersex persons; and
  6. Undertake any other activities required for the effective discharge of its mandate.

The work of the Taskforce is thus aimed at safeguarding the interests of intersex persons by identifying the immediate, medium and long term reforms required to respect and protect their rights as Kenyans, and to undertake any other activities required for the effective discharge of its mandate. The findings and recommendations of the Taskforce are to provide clarity on issues affecting intersex persons and propose policy and legislative measures to address these issues. Click here to learn more about our work on intersex persons.

Frequently Asked Questions
Answer: ‘It is a condition of a human being whose physiological characteristics cannot be classified as exclusively fitting into the binary concept of ‘male’ or ‘female’.
There are as many as 46 types of physiological sex characteristics that are intersex.
Answer: • An Intersex person therefore is a person with ambiguous genitalia hence they cannot fit in the male or female binary concept often used. •The ambiguity may be anatomical (i.e. bodily structure, e.g. vagina, penis, breasts), hormonal (e.g. estrogen, testosterone), gonadal (i.e. reproductive organs, e.g. ovaries, testes) or chromosomal (i.e. genetic makeup, e.g. XX, XY) •In the past intersex persons have been referred to as ‘hermaphrodites’, though this term is no longer used or accepted. The current medical term is ‘differences in sex development’ or ‘disorders of sex development’ (DSD).
Answer:It is estimated that between 1.7 and 3.0 percent of the global population is intersex. This means that there may be as many as 1,440,000 intersex persons in Kenya. We don’t know the exact number of Kenyans who are intersex because this information has not been collected, however the Task Force on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya is in the process of collecting data on the number and distribution of intersex persons in the country.
Answer:‘sex’ can be defined as the classification of a species (for example human beings) according to the usual understanding that there are (binary) two types, ‘male’ and ‘female’
Answer:‘Gender’ is “the social definition of women and men among different communities and cultures, classes, ages and during different periods in history”. Gender is a social construct (shared understanding of society) based on beliefs or stereotypes about masculine and feminine traits roles (i.e. what is a ‘typical’ or ‘normal’ male or female)
Answer: • Intersex persons are human beings entitled to all human rights and fundamental freedoms as stated in Chapter 4 of the Constitution of Kenya [2010]. •Article 3 of the Constitution of Kenya [2010] provides that every person has an obligation to respect, uphold and defend the Constitution thus empowering everyone with the legal duty to protect the rights of Intersex persons. •The Constitution states that the national values and principles of governance include inclusiveness, equality and protection of the marginalized. •The purpose of the Bill of Rights in the Constitution is to “preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings”. •Article 28 of the Constitution stipulates that “every person has inherent dignity and the right to have that dignity respected and protected.” •Article 53 of the Constitution states that every child has the right to be protected from harmful practices, and that a child’s best interests are always the most important factor/consideration. •Article 27 of the Constitution provides safeguards and protects against discrimination of persons based on grounds which include sex. The Kenyan Constitutional court has also re-affirmed that intersex persons have the same human rights and fundamental freedoms under the Bill of Rights as any other person. As a result, everyone is to be given an opportunity to participate in society on an equal basis with other persons, for example to be issued a birth certificate without discrimination of any kind.
Answer:Often intersex newborns are assigned a sex by medical personnel or their parent(s), in terms of being treated as either male or female for the purposes of birth registration and social life.
Answer:In some cases, surgery is required to save the baby’s life or ensure that their body functions properly, but in most cases intersex children’s bodies function like any other human being and treatment is not immediately necessary for health or medical reasons. •Some intersex children are subjected to ‘corrective’ surgery. This is usually done by removing the whole or part of the child’s reproductive organs, so that the child’s internal or external bodily structure is ‘corrected’ to look either male or female. •In Kenya, there are currently no guidelines for medical practitioners to rely on in providing medical treatment for Intersex persons.
Answer: There is no global consensus on whether corrective surgery is beneficial or harmful to an intersex person’s physical, emotional and social development, though courts in other countries have ruled that corrective surgery is not medically necessary in most cases and therefore can wait until the child is able to make the decision for themself. Additionally, different scholars state that some intersex conditions require immediate corrective surgery while others don’t. •However, there is limited data on the benefits and/or effectiveness of corrective surgery as most interventions are not monitored for evaluation.
Answer:Like Female Genital Mutilation (FGM), IGM is any procedure involving partial or total removal of the genitalia or other injury to the reproductive organs of newborn intersex babies, infants or children, for non-medical reasons
Answer: • What is a pronoun? A pronoun is a word that refers to either the people talking (I or you) or someone or something that is being discussed (he, she, it, them, and this) A gender neutral (or gender inclusive) pronoun is a pronoun that does not associate a gender with the person who is being discussed. •While there is no single globally accepted gender-neutral pronoun, several options have been proposed. Two such options are: o zie (he/she), zim (him/her), zir (his/her), zis (his/hers), zieself (himself/herself); or o ve (he/she), ver (him/her), vis (his/her), vers (his/hers), verself (himself/herself) div>