Virginia Muriithi L95s/7740/2010 i INTERSEX IN KENYA

Virginia Muriithi L95s/7740/2010 i INTERSEX IN KENYA: THE SOCIAL, MEDICAL AND LEGAL ARGUMENTS ON THE RECOGNITION OF THE AMBIGUITY OF SEXUALITY (11,000Words) MURIITHI VIRGINIA WAMBUI L95S/7740/2010 A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT FOR THE DEGREE OF BECHELOR OF LAWS BACCALAREUS LEGUME (LLB) OF KENYATTA UNIVERSITY MAY 2015Virginia Muriithi L95s/7740/2010 ii DECLARATIONS Candidate’s declaration: This dissertation is of my own hard work and all literature used that is not my own has been acknowledged. Muriithi V. Wambui L95s/7740/2010 1 May, 2015 ………………………… Supervisor’s declaration: This work has been submitted with my approval as supervisor. ………………………… Wambua Kituku 1 May, 2015 Kenyatta University School of LawVirginia Muriithi L95s/7740/2010 iii TABLE OF CONTENT DECLARATIONS .

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……………. v LIST OF STATUTES ……………………………………………………………………………………………………………… vii LIST OF INTERNATIONAL CONVENTIONS AND DECLARATIONS ……………………………. viii ABSTRACT …………………………………………………………………………………………………………………………….. ix CHAPTER ONE ……………………………………………………………………………………………………………………….. x THE CIVIL AND HUMAN RIGHTS: PUTTING INTO PERSPECTIVE THE LEGAL FRAMEWORK IN KENYA …………………………………………………………………………………………………….. 1 1.1. Introduction ……………………………………………………………………………………………………………………….. 1 1.2. Lack Of A Legal Regulatory Framwework …………………………………………………………………………. 2 1.3. Importance of the Study ……………………………………………………………………………………………………… 2 1.4. Expected Impact From the Study ……………………………………………………………………………………….. 3 1.5. Scope of the Study ……………………………………………………………………………………………………………… 4 1.6. Methodology ……………………………………………………………………………………………………………………… 4 1.7: The Right to Health and Protection by the Law ………………………………………………………………….. 5 1.8. Literature Reviw ………………………………………………………………………………………………………………… 6 1.9. Synopsis of the Study …………………………………………………………………………………………………………. 7 1.10. Conclusion ……………………………………………………………………………………………………………………….. 8 CHAPTER TWO ………………………………………………………………………………………………………………………. 9 THE REALITY OF INTERSEX PERSONS IN KENYA …………………………………………………………. 9 2.1. Introduction ……………………………………………………………………………………………………………………….. 9Virginia Muriithi L95s/7740/2010 iv 2.2. The Origin and Development of Medicalization of the Intersex Condtion ………………………… 10 2.3. Current Life of Intersex Persons in Kenya ………………………………………………………………………… 12 2.3.1. The Muasya and Audrey Cases ……………………………………………… Error! Bookmark not defined. 2.4. Medicalization ………………………………………………………………………….. Error! Bookmark not defined. 2.3.3. Intersexuality from the Naturalist Perspective ……………………………………………………………….. 15 2.6. Conclusion ……………………………………………………………………………………………………………………….. 15 CHAPTER THREE…………………………………………………………………………………………………………………. 16 DOMESTIC AND LEGAL FRAMEWORKS THAT IMPEDE ON THE RIGHTS OF INTERSEX PERSONS …………………………………………………………………………………………………………… 16 3.1. Introduction ……………………………………………………………………………………………………………………… 16 3.2. Domestic Legal Framework ……………………………………………………………………………………………… 17 3.2.1. The Constitution of Kenya 2010 ……………………………………………………………………………………. 17 3.2.2. Registration of Persons Act, Cap 107 …………………………………………………………………………….. 18 3.2.3. Kenya National Human Rights Commision …………………………………………………………………… 19 3.2.4.National Gender and Equality Commission…………………………………………………………………….. 20 3.3. International Framework ………………………………………………………………………………………………….. 21 3.3.1. Universal Declaration of Human Rights 1945 ……………………………………………………………….. 21 3.3.2.International Covenant of Civil and Political Rights ……………………………………………………….. 22 3.3.3. The Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles 2006) ……………………………………. 22 3.3.4. African Charter on Peoples and Human Rights (Banjul Charter)……………………………………………………23 3.4. Conclusion ……………………………………………………………………………………………………………………….. 23 COMPARATIVE STUDY ON DIFFERENT JURISDICTIONS AND LEGISLATIONS ON INTERSEXUALITY ………………………………………………………………………………………………………………. 24 4.1. Introduction ……………………………………………………………………………………………………………………… 24Virginia Muriithi L95s/7740/2010 v 4.2. Optimum Gender Rearing ………………………………………………………………………………………………… 24 4.2.1. The Current Approach to Intersexuality in Kenya ………………………………………………………….. 25 4.3. Comparative Analysis ………………………………………………………………………………………………………. 26 4.3.1. South Africa ………………………………………………………………………………………………………………….. 27 4.3.2. Uganda ………………………………………………………………………………………………………………………….. 27 4.3.3. Germany ……………………………………………………………………………………………………………………….. 28 4.4. Conclusion ……………………………………………………………………………………………………………………….. 30 CHAPTER FIVE …………………………………………………………………………………………………………………….. 29 PROPOSED LEGAL FRAMEWORK REGULATING ASSISTED REPRODUCTIVE TECHNOLOGIES IN KENYA ………………………………………………………………………………………………. 29 5.1. Introduction ……………………………………………………………………………………………………………………… 29 5.2. Recommendations ……………………………………………………………………………………………………………. 30 5.3. Conclusion ……………………………………………………………………………………………………………………….. 32 BIBLIOGRAPHY …………………………………………………………………………………………………………………… 33Virginia Muriithi L95s/7740/2010 vi ACKNOWLEDGEMENT I would like to thank God for the endurance he gave me throughout the few months of writing of this paper. Secondly I cannot express enough gratitude to my supervisor, Mr. Wambua Kituku for your guidance support and commitment throughout the time I was writing this dissertation. I sincerely appreciate the learning opportunity. Lastly, I would like to acknowledge my parents for their undeterred support, my friends and all the people involved in the writing of this dissertation for the unconditional support you had for me. Be Blessed!Virginia Muriithi L95s/7740/2010 vii LIST OF ABBREVIATIONS AND ACRONYMS UDHR : Universal Declaration of Human Rights, 1948 DSD : Disorder ICCPR : International Covenant on Civil and Political Rights, 1966 IGLA : International Gay and Lesbian Association, 1978 AU : African Union UN : United NationsVirginia Muriithi L95s/7740/2010 viii LIST OF CASES CITED Andrew Mbugua vs. Kenya National Examination Council and Others, Judicial review No. 147 of 2013 Richard Muasya Vs. The Attorney General and Others, Petition No. 705 of 2007 539 U.S. 558 (2003) National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs, CCT 10/99, Constitutional Court (1999)Virginia Muriithi L95s/7740/2010 ix LIST OF STATUTES 1. Children’s Act No. 8 (2001) of the Laws of Kenya 2. Judicature Act CAP 8 of the Laws of Kenya 3. The Constitution of Kenya 2010 4. The Constitution of South Africa 5. Births, Deaths and Marriage Registration Act of KenyaVirginia Muriithi L95s/7740/2010 x LIST OF INTERNATIONAL CONVENTIONS AND DECLARATIONS 1. African Charter on Peoples and Human Rights (Banjul Charter) of 1981 2. European Convention on Human Rights of 1950 3. International Covenant on Economic and Social Cultural Rights of 1966 4. International Covenant on Civil and Political Rights of 1966 5. UN General Assembly Resolution on Social Progress and Development Resolution 2542 of 1969 6. United Nations Convention on the Rights of the Child 7. Universal Declaration on Human Rights of 1948 8. Proclamation of Tehran Final Act of the International conference on Human Rights of 1968Virginia Muriithi L95s/7740/2010 xi ABSTRACT This dissertation examines the need of creating regulation for the lives of intersex persons in concern with their legal sex status and recognition in Kenya. In order to achieve the above objective, we seek to determine the fact that the right to proper health, dignity and equality covers the right of intersex persons and that the lack of proper legal and institutional frameworks impedes the enjoyment of such rights. The use of books, dissertations, printed media and other sources shall be used to answer such questions. First, we look at the many connections of the juridical, social, and medical structures surrounding Difference of Sex Development (DSD)/ Disorder or Sex Development/ Intersex sex-assignment surgeries. By looking at intersex cases and the sex reassignments, this dissertation observes the medical industry habits of treating the intersex condition like a disability and an opportunity of therapeutic interventions and pathologic intrusions. Then we show and explain that intersex persons have Human Rights, that’s can be protected if proper laws were put in place or current Kenyan laws amended to encompasses this minority group. The lack of such regulation also affects parents with regards to stigma because the children are not of “proper” legal or medical status. The society is of the view that persons born with physical characteristics and chromosomes that do not fall into the singular or binary categories are “abnormal” and hence the assumption such bodies need to be gendered or engineered to fit in the normalcy bracket. The urgency of designating the assumed proper functions of male and female sex assignment is aligned with societal expectations and legal recognitions, creating a mess in Kenya and leaving such persons unprotected and illegal. This unbridled mess of hormones, gender and the assumed gender roles conflates a private matter of sex classification into a public debate of normality and acceptability. This dissertation has five chapters. The first showing the existence of this condition in Kenya which then gives rise of the necessity of writing this paper and its significance. There is a theoretical framework on which the paper is based on. The second chapter shows the reality of intersex persons in Kenya which is illustrated from a Human Rights perspective. Chapter three, we show the current Kenyan laws that have the potential of providing better systems that would prospect intersex persons while chapter four discusses chapter three by analyzing how otherVirginia Muriithi L95s/7740/2010 xii countries have dealt with their laws on this challenge. Lastly chapter five gives legal and medical recommendations and the conclusion of this paper.Virginia Muriithi L95s/7740/2010 1Virginia Muriithi L95s/7740/2010 1 CHAPTER ONE THE CIVIL AND HUMAN RIGHTS: PUTTING INTO PERSPECTIVE THE LEGAL FRAMEWORK IN KENYA 1.1. Introduction A girl or a boy? This definitely the very first thought of a parent who learns that they are expecting. Others are secondary thoughts of happiness and health, that underline the assumptions of prosperity and self-sufficiency, but mainly it’s the desire of classifying the future child’s sex so as to adequately arrange the proper future for her or him. Parents imagine their future children as mobile, self-sustained, able bodied and very heterosexual so as to continue the lineage and maintain the family name. Unless this parents have a disability or are queer, the assumption of normalcy is never an issue. According to research one in two thousand births could result in an intersex condition i.e. a baby without immediate sex designation due to an unrecognizable female or male genitalia (Astorino& Viloria, 2012). Intersex babies create a huge dilemma to parents who are then faced with the broken traditional gender/sex divide, for them, this is a failure of what is expected to happen naturally (Holmes, P.5, 2009). First parents experience fear which makes them see their children as disable led and suffering from a deficiency, then they question the imagined plan for their child’s life which creates the need to correct the child’s path by correcting their bodies to ensure their sustainability again. This research looks into the need to acknowledge the existence and regulation of transgender people in Kenya. My interest in this research was triggered by the recent uproar of people against Audrey Mbugua a human rights activist. I seek to analyze the discursive violence that leads to the gross violation of human rights that intersex persons are entitled to and to determine that the lack of a legal regulatory framework impedes upon their human rights. This research will cover intersex people seeking the help of the medical profession in order to get proper diagnosis, hormone treatment or surgery and/or who are trying to get their legal gender marker changed as this issues are currently not (fully) recognized by our laws(Imagining Transgender, 2007).Virginia Muriithi L95s/7740/2010 2 So who is a transgender person? A transgender1 person refers to a person who has a gender identity disorder, that is, their self identity does not agree unambiguously to the natural conventional notions of male or female gender.2 This paper focuses on the practice in Kenya, and the legal challenges we face due to the lacuna existing in our laws. We will analyze how different legal framework regulate the lives of intersex persons to get a perspective as to how Kenya can create domestic. It is a proposal in the final that legislation need to be drafted in Kenya, and we make a few recommendations to this effect. 1.2. Lack of a Legal Framework Regulating Intersexuality in Kenya Even with proper clear evidence of the prevalence of this condition in Kenya, we are still ignorant about and are yet to create a legal guideline, this has led to very disturbing situations in regard to several ethical and legal issues that. “It is indeed a huge watershed moment,” This were the words of transgender activist Audrey Mbugua after she recently3won a seminal case against the Kenya National Examination Council on Tuesday, granting her legal recognition as a woman on her academic certificates.4 This was a significant ruling for the transgender community in Kenya, especially in a country with conservative views towards sexuality issues. Today, the debate about intersex persons has tended to focus much on the legal aspects of their existence and the consequences of their interaction on with the society in various ways. Issues such as marriage, child bearing and even in social events have raised eyebrows in various circles. In the Kenyan society Trans people are not only subject to transphobic violence physically and publicly, but also legally, medically, socially and discursively. 1.3. Importance of the Study This dissertation proves the necessity of proper frameworks that could regulate Intersex conditions in Kenya so as to oversee that the dignity, value and the rights of this persons are respected and protected. We seek to propose legal mechanisms that can be adopted after modifications, this mechanisms should be created as legislations which protect such persons as 1 Also referred to as transsexuals, transvestitisms, gender-queer, and trans people or cross dressers. 2Definition according to the oxford dictionary. 3 2nd October 2014 4BBC News Online.Virginia Muriithi L95s/7740/2010 3 soon as they are born, and this establishes the need for very autonomous regulatory authorities. This dissertation is based one particular fact that without legal frameworks in a country to regulate its population creates unbridled messes of assumptions, and there is one whose rights are of course abused. It is our assumption that intersex children keep being born every other day, and that now we have a little bit of knowledge after the Audrey and Muasya Case, this condition will continue to be accepted as a medical condition rather than a social disorder. 1.4. Expected Impact from This Study The Kenyan constitution 2010 fails to define this group of people hence bringing about confusion and making Kenyans conflate transsexuals’ people as homosexuals, hermaphrodites or mentally ill people. It is indeed obvious that we have trans people in our Kenyan society in as much as we do not know the exact number of such intersex people and sad that it is for lack of regulatory legal or medical laws and information to the public that misguides our society hence subjecting this people to gross violations of their human rights. There is no regulation or any proper process put in place one a Kenyan child is born with this condition. Medical institution do whatever they decide is best or what’s parents decide. These is the main challenge we face in Kenya. Based under the Constitution of Kenya 2010 this paper will be important for human rights groups, judges, lawyers, the government and the public whose aims are to spread information and changed misguided thoughts on this transgender condition. It will also seek to determine whether the constitution covers trans people and try to answer the question whether human rights of Trans sex rights are enforced without recognition.5 It will be this papers argument the lack of codification of human rights operate to impede their realization. This argument brings out the importance of written law, espoused by positivists. Positive law theory lays emphasis on laws that are encoded that is law as is and not asset ought to be. Jeremy Bentham is a key proponent of this school of thought. He states that a right is a child of the law and those real rights come from real law and from imaginary laws of nature only comes imaginary rights’.6 5 KNHRC. Realizing Sexual and reproductive Health Rights in Kenya. A myth or Reality? 6 Jeremy Bentham, Introduction to the principles of Morals and legislation(University of Oxford 1781)Virginia Muriithi L95s/7740/2010 4 1.5. Scope of the Study This is a new topic in Kenya and so we lack academic publications and we have very few reported case laws. The only literature available is print media and unpublished articles, which are also limited, which limited us to foreign case law, books, journals and dissertations. 1.6. Methodology The dissertation solely relies on reading of other dissertations and thesis, online articles and journals. It also borrows a lot from foreign regulatory frameworks so that we can get a sense of direction or an idea on how to improve Kenyan Legislation. 1.7: The Right to Health and the Role of the Law in Protecting Its Citizens This dissertation embraces the natural law position that human beings are born equal, and are bestowed upon them equally by virtue of being human. The lack of legal gender recognition leaves intersex people without any formal legal status that significantly affects their access to basic needs or services like social security benefits, transport or education, this violates most basic human right. Both essentialists and constructionists have come up with very many theories so about transgender and transitioning. Transitioning7 is an important part of the person’s self-identity process (Prosser, 1998). It starts with ‘coming out’ and seeking help (of a doctor or psychiatrist) to living full time in the preferred gender and being legally and socially recognized and accepted as such. However one needs medical diagnosis before access to the other legal, medical or social services. This in Kenya is however hard because no legal or medical framework is set to deal with this people, leading to institutionalized violence like in hospitals , places of work, schools etc. This can be evidenced by Audrey Mbugua’s many legal struggles since 2009 when she was trying to register her non-governmental organization TEA8, when she was institionalized in a mental hospital for being “sick”, her law suit against KNEC9 and the fact that she still awaits to 7 Transitioning involves hormone treatment, sex reassignment surgery and a legal process of getting ones gender marker changed on official documents 8 Transgender, Education Awareness. 9Kenya National Examination Council.Virginia Muriithi L95s/7740/2010 5 see whether she will be able to change her name and gender mark on her national identification card or passport.10 The understanding of transgender in legal institutions and situations are mostly based on DSD’s understanding. This introduces two issues two problems, one is the assumption that this people who seek legal help are not considered ‘true’ transgender persons and second is that it is considered a mentally condition. In addition, our language does not allow for a proper reference to someone who does not identify as man or woman. The lack of reference leads therefore to a person becoming an abject in the social imaginary, a type of human being which is not fully human. This sounds dramatic, but laws and legal procedures confirm this sad reality. This leaves the need for written positive law to eradicate such treatments and assumptions. 1.8. Literature Review ART is a controversial field, and it has evoked varying opinions among scholars, legal practitioners and medical practitioners. Kenya lacks in literature on ART, a gap we hope we will help fill through this dissertation. The Constitution of Kenya 2010 provides that human dignity, equality, human rights, non-discrimination and protection of the marginalized are among the national values and principles of governance which are molded along the natural law theory of rights.11 The Kenyan people therefore including the intersex amongst us are right holders as the rights are inherent12 and not given by the State.13 However in Article 27(1) that states that every person is equal before the law and has the right to equal protection and/or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth but it specifically fails to mention intersex people, in Kenya one is either male or female leaving such intersex people unaddressed. The proponents of natural law hold that human rights exist as a result of a higher 10 Advocate.com. “Kenyan Trans Woman Wins Recognition in Landmark Victory.” By Mitch Kellawat, October 9, 2014. 11Chapter Four of the Constitution of Kenya 2010. 12 Galatians 3: 28, “there is neither no Jew or Greek, slave nor free, male nor female, for you all are one in Jesus Christ. 13Chapter Four of the Constitution of Kenya 2010.Virginia Muriithi L95s/7740/2010 6 law than positive or manmade laws.14They posit that this higher law constitutes a universal and absolute set of principles governing all human beings in time and space. This in essence means that there are certain moral truths that apply to all people regardless of where they come from. John Locke, a proponent of the natural law school of thought held the view that humans were by nature worthy of respect as one another’s equals. He propounded his theory of basic equality in ‘An Essay Concerning Human Understanding’, and ‘The Reasonableness of Christianity’ where he explored basic equality by putting forward the possibility that God created all humans in a state of equality. That the sole purpose of the existence of a government was and is to protect the rights of its people failure of which stability would be threatened. In Corrective Justice and the Revival of Judicial Virtue, Mark C. Modak believes that a government or country that enforces equality has an easier time of enforcing anti-discriminative legislation. Therefore the ability of a state to treat its citizens neutrally eradicates discrimination and violence, creating a sort of structural equality that enables different groups of individuals to accommodate one another. (Katherine O’Donovan and Erica, 1988) Elizabeth Reis’67, in her book, argues that among the essential attributes of humanity is sex. Elizabeth examines the anomaly of social relations in colonial America and the United States that could not manage greater flexibility and acceptance of bodily diversity among its members. In particular the book examines the public and medical professionals regard and treatment of the intersex from the period under review to present. This book is important to this study since it provides a useful historical lesson on how America has advanced in the treatment and recognition of the intersex. Accordingly this study makes recommendations checkered through historical analysis to ensure that we do not turn back the clock to where we were several years back but should move forward based on the liberalized human rights regime that the world in increasingly enjoying. The point of inadequacy in the book that this research seeks to bring out is on how to recognize and protect the existence of the intersex people without necessarily changing their sexual identity. Silvan Agius and Christa Tobler68 on their report to the European Union (EU) deal with EU law on Trans-discrimination, they provide that non-discrimination law does not at present contain an explicit prohibition of discrimination on the grounds of a person’s gender identity and gender 14 Malcom N. Shaw, International Law(Cambridge University Press2008)Virginia Muriithi L95s/7740/2010 7 expression. Indeed, Article 19, which is the most general legal provision on nondiscrimination in the EU Treaty, entitles the EU to take action to combat “discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” only, without mentioning trans or intersex issues. It further provides that neither does a prohibition on discrimination against intersex people appear in the EU Charter of Fundamental Rights So as to complement the report, this study sought to use the actual situation and treatment of the intersex in Kenya which is made worse by the kind of laws that is in place and the case law emerging from our courts. From this a clear jurisprudential analysis based on the Constitution shall be developed while taking cognizance of the reasoning in other countries. Ethical, theological and philosophical materials will be discussed at length in the dissertation to elaborate on the gross violations, how to enforce anti-discriminative polices, how to educate the public, the impact of transitioning on trans people and generally how to form our own policies borrowing from other countries on how to deal with intersex people both medically and legally. 1.9. Synopsis of the Study This research paper contains five chapters. The first gives an introduction of the research paper and the theoretical framework within which this paper is premised. It also sums up literature written by other writers who nevertheless have left gaps this paper seeks to fill. Chapter two explains the reality of Intersex Kenyans, the history of this condition, the growth in treatment of such persons. This chapter through jurisprudential arguments will demonstrate that intersex person have rights protected by both domestic and international legislations. Chapter elaborates the current legal framework in Kenya, its gaps and how they would be amended or “fixed” to cater for intersex persons. Chapter number four then examines the legal frameworks of countries in reference to matters highlighted in the previous chapter. This is basically a comparative chapter that aids us with proper legal and medical recommendations. In Chapter five, recommendations are given as to how we can incorporate a proper legislative framework based on matters discussed in the previous chapters.Virginia Muriithi L95s/7740/2010 8 1.10. Conclusion This chapter has illustrated basic approach that will be used in this paper and importance of this study. The next chapter then gives a background on the current lives of intersex persons in Kenya.Virginia Muriithi L95s/7740/2010 9 CHAPTER TWO THE REALITY OF INTERSEX PERSONS IN KENYA 2.1. Introduction Paragraph 2 of the Declaration of Independence15talks of the equality of men and the inalienable rights endowed upon them, including life, liberty and pursuit of happiness.16 For such happiness to be pursued, people should enjoy other rights such as the right to health. Naturalists are of the idea that it’s only by individual enjoyment that human rights are realized.17 The World Transgender Day of Remembrance was founded by Gwendolyn Ann smith in, a transgender activists memorialize the murder of Rita Hester who was stabbed to death.18 It is a day commemorated every 20th of November and in November 2013 it marked a day of importance for the Kenyan intersex as members of TEA met at the Hilton to mark a milestone in their struggle for acceptance and understanding in our Kenyan community. The main problem in Kenya is that People lack awareness of what being intersex means and don’t understand it as a medical condition which make people assume that transsexuals are just gay/lesbians. With such assumptions that people conform to humanity differently, they then fail to see the value of the life of other hence treating them as lesser human beings. Such attitudes can be related to the ignorance of people based on the importance societies placed on the binary gender model, gender stereotypes, sexism and gender inequalities that exist within it.19 The binary gender model classifies both sex and gender into two distinct and exclusive forms of masculine and feminine identities, and is maintained through cisnormativity20which then is a disadvantage to all other persons who do not conform to the societal norms and social expectations. Tran-sex people are therefore assumed to be non-existent, neglected and marginalized as they are not male or female. 15 The Declaration of Independence was a statement adopted by the American Congress on July 4, 1776, declaring that 13 states which were colonized by Britain were now independent. They formed a union, the United States of America. 16 This clause was formulated by Thomas Jefferson, who later became the third president of the USA. 17 Marie-BenedicteDembour ‘What are Human Rights? Four Schools of Thought’ (2010) 32 Human Rights Quarterly 18 Find details 19Silvan Agius and Christa Tobler, ‘Trans and intersex people: Discrimination on the grounds of sex, gender identity and gender expression’ (2011) European Union Report 15. 20 A system privileges people comfortable with the gender or sex assigned to them at birth through various practices and institutions. Their gender identity and expression match the sexes assigned at birth and their expectations are gender suited which is the norm in the society.Virginia Muriithi L95s/7740/2010 10 This chapter will lay out challenges faced by Intersex Kenyans and particularly issues that can be addressed to ensure that their dignity and humanity is restored. As such I will address the medical status of the intersex condition and the solutions available or not in Kenya. 2.2. The Origin and Development of Medicalization of the Intersex Conditions Throughout the 19th century, medicine became a primary way of addressing this condition, but before majority of intersex persons were not noticeable neither by the religious, legal or medical institutions and very few cases came to the authorities’ attention. Presumably persons with the so-called “abnormal” anatomy lived typical lives because such anatomical variance wasn’t considered important or was either undetectable. Newborns with genital ambiguity were assigned a sex and when it came to sexual orientation, sexual relations were to be had solely with those of the opposite sex. A violation of this was punishable by fatal/violent means.21 Then medical men began reporting dozens of hermaphroditism and pseudo hermaphroditism. However medical experts were politically conservative and kept sex borders very defined to combat homosexuality and feminism, intersex was a notable issue.22 In the 1890s the conflation of sexual orientation, gender expression and sex became clear. Psychic hermaphrodites was the term used to refer gays and a claims arose that education in universities made women masculine, therefore, medical specialists derived a system that labelled everyone as truly female or male regardless of the reality and extent of the sexual blending. Medical practitioners created arbitrary standard based on gonadal tissue, which persists in most medical texts today. Persons of non-standard sexual anatomy and testes or ovaries are seen as male/female pseudo-hermaphrodite while person with testicular and ovarian tissue, are seen as true hermaphrodite. Due to the technological limitations of time then, victorian medical doctors preferred this particular system as it was not easy to diagnose true hermaphrodites. As a consequence, true hermaphrodites were dissected after death while medical information on intersex came from post-humous examinations. 21Dreger, Alice Domurat. 1998. Hermaphrodites and the Medical Invention of Sex. Cambridge: Harvard University Press. 22Fausto, Sterling Anne. 1944. Sexing the Body. New York, NY : Basic Books, ©2000Virginia Muriithi L95s/7740/2010 11 Intersex people were either labelled as male or female and were supposed to act sexually and socially normative is their assigned gender. However, even with improved techniques of access to health care more people were diagnosed with a biological particular sex that did not make sense at all because in the 1910s women with testes were still labelled as women not men. There still was no room hermaphroditism. So, by the 1920s medical experts treating this intersex condition developed the notion of gender (a social role) separated from biological sex and then began to offer surgical corrections to make biological sex in line with assigned genders. Theoretical approaches including surgical techniques developed in bits but the motivation was to still limit sex categories to two. During the last half of the 19th century, a few patients started asking for surgical reconstruction of their male and female private parts. Nevertheless, like many other realms of biology, sexuality, and psychology, intersex increasingly became the purview of medicine. Medicalization probably improved health and even saved lives but nevertheless, such treatments were motivated by psycho social concerns not health concerns, but by psychosocial concerns; 2.3. Current Lives of Intersex Persons in Kenya The main difficulty in estimating the Kenyan trans population size is that no systematic or reliable data exists, nothing can been collected through the Census or through other survey systems.23 There is no existing data even in the HIV/AIDS files as they only refer to MSM and not trans people. However I prepared interview questions for fifteen people to determine the familiarity of Kenyans with the intersex population. Below are the questions: 1. What does the term intersex mean? 2. What is the difference between gay people and intersex people? 3. Have you ever met an intersex person? 4. What do you think about people who want to change their sex? 5. Should such people be protected by the law? Out of the 15 people interviewed 3 said that it was immoral, an unnatural “behavior” against our moral law and the laws of God because God created human as male or female, only two did not 23 Due to misinformation and lack of government support in Kenya there would be a significant problem in getting information on intersex people.Virginia Muriithi L95s/7740/2010 12 know what intersex persons are and what the term means and three concluded that this were merely gay and lesbian persons masking their immoralities with a non-existent condition. Seven of the people interviewed understood who an intersex person is, explaining it as a medical condition where one is born with sexual development disorders. Two in this category understood of existing medical procedures that are yet to be implemented in Kenya. Three of the seven also agree that the law has an obligation to all its citizens despite all religious and moral views. A common view amongst this group was that due to our societal binary gender model it would be hard get Kenyans to understand and acknowledge intersex people. 2.3.1 The Muasya and Audrey Cases The Constitution of Kenya 2010 empowers the High Court, to safeguard and protect fundamental rights and freedoms by making authoritative decisions in instances where such rights are or can be violated. The cases below are landmark cases that left a great mark on the intersex community, they based on the Kenyan Constitutions, the 1969 and 2010 respectively. Both prove the existence of Kenyan intersex persons and will show whether the 2010 Constitution is still as rigid or not. In Richard Muasya vs. Attorney General the Kenyan High Court heard a case concerning Muasya, an intersex individual at Kamiti prison. The petitioners lack of an identity card or certificates and due to his appearance led to his sentencing in a male prison where he was subjected to invasive searches and abuse. HE claimed that in fact his conviction was as a result of his status and so sought recognition under the Birth and Deaths Registration Act. The Court held that under the ICCPR article 26 intersex persons did not fall under the “other status” category however Muasya was awarded damages because his treatment while in prison amounted to inhuman and degrading treatment which in angst the UDHR and the Constitution 2010.24 The presiding Judges described being intersex as abnormal with regards to the binary gender model because according to the law in Births and Deaths Registrations Act one is either male or female and that the lack of statistics and data on Kenyan intersex persons made Muasyas’ case an unknown phenomena that would only lead to the introduction of a third gender contrary to the constitution. 24 In the High court of Kenya Petition No. 705 of 2007Virginia Muriithi L95s/7740/2010 13 Second Case is the Republic vs. KNEC, AG and Audrey Mbugua.25Audrey Mbugua rose to fame after denouncing her masculinity in favor of a feminine gender, she filed a petition against KNEC demanding new certificates with her new name to allow her to find work and travel. In the ruling Justice Wendon Korir declared Audrey as intersex and ordered KNEC to issue a certificate bearing her feminine name and that the gender mark slot should be left unmarked. Audrey who had already changed her name by deed poll and had it published in the newspapers had been previously treated for gender dysphoria and was recognized as being transsexual in 2008.26 The Kenya Christian Lawyers Fellowship backed by the public have since demanded Mbugua to provide medical evidence to back her demand for a sex change claiming that this was a way to pave for gaysim. Her national identity card and passports are yet to be changed but this is a case with the potential of creating far reaching implications on the treatment of transgender persons.27 John Chigiti the lawyer representing Muasya continues to battle for the legal recognition of intersex persons and the protection of their rights, talking about his current case involving a three year old child whose parents want to perform a reassignments surgery Chigiti said, “I am looking into the possibility of creating guidelines whereby surgeries will be performed with the authority and leave of court after hearing all sides and issues around the operation from doctors, experts, and human rights experts, the child and the parents. This is the only best way to realize the best interest of the child.”28 2.4. Medicalization “Gender dysphoria” is the medical term that describes the condition which intersex people suffer. It is a term used by psychologists/ psychiatrists to describe this condition whereby intersex people do not feel or live happy with genders assigned to them at birth, in terms of their bodies and their social roles (Whittle et al, 2007). People have to undergo diagnosis under gender dysphoria before gender reassignments or change of necessary documents. GIRES (2006) 25 Kenya Law Reports, Case No. 147 of 2014 26 Kenya Forum: TRANSGENDER ACTIVIST AUDREY MBUGUA WINS CASE AGAINST KNEC (10th October 2014) 27 “KENYAN ATHEIST TRANSGENDER FIGHTING FOR HER DENTITY IN A CHISTIAN COUNTRY.” Sean Maguire, (18th Oct. 2013) 28 THOMSON REUTEURS FOUNDATION: FIGHTING FOR INTERSEXUALS’ RIGHTS IN KENYA by Katy Migiro (16th June 2011)Virginia Muriithi L95s/7740/2010 14 explained that a number of reasons, such as chromosomal abnormalities at the foetal stage, cause a part of the brain to develop in opposition to other sex traits therefore becoming incongruent with the visible sex appearance. This is what Audrey Mbugua underwent before filing for her case against KNEC. Intersex persons fail to meet the established legal and societal norms of the binary model and so they are left with no avenue air their grievances. Also available treatments are based on institutional and social expectations and not the patients say. Michael Foucault a philosopher and social theorist talks about the process of problematization (Feder, 2014). He studies why and how some issues, such as bodies or identities, are seen as a problem that could be repaired/corrected. Basically, medical interventions mean that intersex individuals are considered to be disabled bodies, with problems of themselves in their own corporeality, and as a problem for us in the society. So corrections have to be done to make others (society) comfortable, and ensure proper continuance of life without challenges. The choice of normalizing medical surgeries and administration of hormone therapies (Holmes, 2009) is of course to ensure one has definitive sex and gender expectations. But at this point it’s not only the medical sector that exerts power on individuals, its individual family that abdicates power to the physicians and society, to ensure that the binary system demands are not upset. Issues surrounding intersex individuals can serve as a bridge between legal, medical and social critiques; they are seen as an impairment while existing as a conflation of socially contracted gender and sex roles. As ideals of normality are predicated on survival of the fittest and just as disabled bodies are at a perceived disadvantage here, so are intersex bodies because they can’t survive without medical intervention to ensure their placement into a functional social structure. While a “division of the sexes has been taken to be foundational to social order” (Feder, 2014, p. 206) it is the challenges to these entrenched views that give insight to seeing bodies in all their glorious variations as not just ambiguously sexed or deficient, but as differently abled and not simply impaired and in need of correction.Virginia Muriithi L95s/7740/2010 15 2.5. Intersexuality from the Naturalist Perspective Naturalists argue that human rights are inherent, and not ‘awarded’ by the sovereign but a supreme being; hence they cannot be withdrawn. Further, the UDHR29 recognizes the inherent dignity and the inalienable right of all human beings. Therefore intersex children have the right to dignity to be allowed to grow and make decisions of their own after they grow. 2.6. Conclusion The medicalization of this condition in the 1920s was an important breakthrough in the field of medicine. Intersex persons have rights entrenched in upholding their dignity. However, the practice also faces a number of challenges, which gives need for regulation, so as to ensure that people in need of such assistance are able to enjoy it. In the next chapter, we shall look at the current legal framework in Kenya which if amended could protect the rights of intersex persons. 29 Preamble Paragraph 1Virginia Muriithi L95s/7740/2010 16 CHAPTER THREE EXISTENT INTERNATIONAL AND DOMESTIC LEGAL FRAMEWORK THAT REGULATES INTERSEXUALITY IN KENYA 3.1. Introduction The existence of Kenyan intersex people has been well established in the first chapter and so they are indeed entitled to enjoy their domestic and international rights just as any other Kenyans. This chapter is principally concerned with explaining in detail the domestic and international legal rights of intersex people in turn illustrating the gross social and institutional rights violations that they go through. Equality is essential to full humanity and human dignity, and it will be this chapter that laws in relation to this will be elaborated. 3.2. Domestic Legal Framework (Legislations & Institutions) There are several Kenyan laws that govern human rights, this section aims to ascertain whether all the rights provided for in the bill of rights and other Kenyan laws safeguard the rights and interests of this persons. We will analyze and discuss several relevant laws of existent legislations, focus on work of institutions (ones that govern human rights generally and ones that govern persons with special needs and minorities). Legislations 3.2.1The constitution of Kenya 2010 The Constitution of Kenya 2010 is the main source of law in Kenya, it constitutes chapter four on the bill of rights that lays out human rights and freedoms regulates. First the preamble to the Constitution recognizes that the Kenyan system of governance is and should be based on human rights values, equality, freedom, democracy, social justice and the rule of law, this calls for the government to serve its people and in an equal democratic way hereby creating a duty of the government towards the intersex persons.Virginia Muriithi L95s/7740/2010 17 Article 10b states that national values and principles of governance shall include human dignity, equity, social justice, inclusiveness, equality, non-discrimination and protection of the marginalized in interpreting the Constitution and other laws, and in making or implementing policy decisions. Article 2 (6) of the Constitution provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya and is emphasized by Article 21 (4) that states that international obligations should be enacted in respect of human rights and fundamental freedoms. Article 27 of the Constitution guarantees fundamental rights and freedom to all Kenyans irrespective of any ground, including race, sex, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. This rights are entitled to all human and are not provided by the state. Article 59 establishes the formation of the Kenya National Human Rights and Equality Commission human right commission that protects and protects human rights in accordance with domestic and international laws it also creates an avenue for complainants to get justice. This commission is established with another the National Gender and Equality Commissions the former dealing with the interpretation of chapter four of the constitution while the latter deals promotes equality and non-discrimination. Currently there is already in place an institutional framework promoting the protection of the rights of Kenyan intersex persons. The question will be on the capacity to implement the mandate especially for emerging human rights issues in a society stifling the rights of the intersex persons. This two will be discussed at length later on in this chapter. 3.2.2 Registration of Persons Act, Cap 107 This act specifically provides for registration of persons and issuance of official documents such as identity cards. Section 2 of this act provides that all Kenyan persons who are eighteen years of age or over can attain a national identity card. During the process of registration section 5 of the Act lays out various details that an applicant has to provide to be registered such as registration number, registration date, names, date of birth, sex, tribe or race, place of residence and postal address, occupation, finger and thumb impressions.Virginia Muriithi L95s/7740/2010 18 For identity cards the act provides this as necessities, registration date, registration number, Full name, SEX, date of birth, place of birth, tribe or race, occupation, place of residence and postal address, finger and thumb impressions etc.30 All of this requirements are easy to meet for any individual except for when it comes to intersex people The law leaves them out, and for them to be registered they have to live within the constraints of having choosing to be of male or female sex which is a lie just because there is no provision of them or a blank space for “other sex.”. So what is the sex of intersex persons? This brings issues in issuance of travelling documents, identity cards, exam certificates, driving license, birth certificates, obtaining occupation and changing of such documents if necessary is also a challenge. It violates section 27 of the constitution of Kenya on nondiscrimination on the basis of sex. It is the duty of the government towards its people to ensure that intersex people can register their sex, either as intersex of other with the pressure of being limited to either male or female. Even better the government should elaborate on the term “no discrimination based on sex’. 3.2.3 Birth and Death Registration Act Cap 147 This acts solely provides for notification and registration of births and deaths and matters in relation to this.31 In section 7, 9 and 10 it is mandatory for a person notifying the birth of a child to give the child’s particulars for the register as prescribed. Schedule Form Number 5 and 6 show that one of the requirements is the sex which is either male or female. This strict classification is limiting and leaves no data on intersex kids hence enhancing the ongoing structural and legal rights discrimination. Children are also covered in the Children’s Acts No. 8 of 2001 such that matters of procedure affecting children should be considered in accordance to the child’s age and maturity, this not as effective because intersex children are often subject to surgeries and gender assignment treatments without being able to participate in deciding which sex they are. Institutional frameworks There are two main intuitions established under our municipal laws legally mandated to address matters in relation to human rights and special need persons. Under this institutions intersex 30 Registration of Persons Act, Form B of Second Schedule. 31 Preamble, Births and Deaths Registration Act Cap 147Virginia Muriithi L95s/7740/2010 19 people can be able bring forth their grievances. They include: the Kenya National Human Rights Commission (KNHCR) and the National Gander identity and Equality Commission (NGEC) 3.2.4 Kenya National Human Rights Commission Established pursuant of article 59 of the constitution 2010 and the Kenya National Human Rights Act of 2011 to provide for the powers and functions of the KNHRC. This commission is mandated to promote and protect human rights, facilitate gender equality and mainstreaming, to monitor and report on observance of such rights, to ensure compliance with international treaties on matters of human rights, to represent complainants whose rights have been violated and to report such complaints and violations.32 The Kenya National Human Rights Act 2011 recognizes that human rights are indivisible, interdependent, interrelated and of equal importance for the dignity of all human beings; and the rules of natural justice. This commission provides for the human dignity and protection of intersex people, and if such rights are infringed it gives them an avenue to air this grievances. The duties and powers of this commission seem resourceful enough to deal with the likely grievances of intersex people. Their functions being complemented by the general powers to investigate, summon, record statements under oath, and adjudicate matters relating to their various mandates. (Sec 26) Even in the failure of direct recognition in the Act, KNHRC has powers to refer to ratified international treaties that offer better grounds of protection for the intersex. 3.2.5 National Gender identity and Equality Commission (NGEC) This commission was established pursuant to Article 59(4 & 5) of The Constitution 2010 and the National Gender and Equality Act of 2011, the latter which provides for gender mainstreaming, gender equality and the respect for human rights. Generally this commission is mandated to monitor, coordinate and facilitate national development while advising the Government on all aspects thereof concerned with 32 The Constitution of Kenya 2010, art, 59Virginia Muriithi L95s/7740/2010 20 mainstreaming issues of gender and vulnerable and special interest groups.33 Under this mandate there is therefore an opportunity though slight for the realization of intersex people especially under the special interest of women, children and marginalized groups.34 3.3. International Framework After the adoption of the new Constitution of Kenya 2010, Kenya become a monist35 state with article 2(5 & 6) providing that that the general rules of international law shall form part of the law of Kenya, and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. This article even though already established is still lacking in terms of applicability, because international instruments are still seen as subordinate to the Acts of parliament. In Pattni vs. Republic the High Court in relation to application of international norms established under ICCPR and UDHR, held that as much as international instruments are persuasive, they are not legally binding unless incorporated into the constitution of any other written laws. The aim of using such international legal instruments is to enhance the Kenyan human rights so the reluctance in applicability is such a setback. Under international framework I shall discuss the applicability of the UDHR, ICCPR, UNCRC, ACHPR and ACRWC in promoting and protecting intersex people rights. 3.3.1 Universal Declaration of Human Rights 1945 The UDHR is 36not a treaty for human rights but it is a legitimate document of authority with an international custom status that many states while forming domestic laws have borrowed from. UDHR covers the rights of all by its declaration that all humans are born free and equal in dignity and rights, it goes on to state sets forth to list down that all humans are entitled to all the rights and freedom without regard to SEX, BRITH and STATUS, race, religion , language or 33 Special interest groups include, minorities, marginalized groups, persons with disability, women, youth and children 34 KLR, Case No. 266 of 2013 35 Monist states accept that the domestic and international legal systems form a unity, such that international law does not need translation to national law. Once an international treaty is ratified it is incorporated to form part of the national laws. 36 UDHR, Art. 1Virginia Muriithi L95s/7740/2010 21 opinion.37 Though there is no particular reference to intersex person’s article one and two provides for the dignity of all human beings, also using the words sex, status and birth that arguably relate and cover intersex people. Other provisions of relevance would include the right to life, liberty and security of persons,38 freedom from torture, inhumane or degrading treatment,39 right to recognition everywhere as a person before the law40, all are equal before the law and are entitle to protection from discrimination,41 full and fair hearing on determination of rights,42 and adequate right to a standard of living for the health and wellbeing of themselves.43 Article 7 protects people from arbitrary detention and arrest which is a major point because it protects intersex people from unlawful degrading body searches. Though there are other related rights this are the main one that promote respect for rights and defend the individual wellbeing of intersex peoples. 3.3.2 International Covenant on Civil and Political Rights Under Article 2(1), member states should respect and ensure that rights of individuals within its territory and subject to its jurisdiction are recognized without any kind of distinction such as; race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This is emphasized by Article 26 that recognizes that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” Discrimination in the law “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” is prohibited. This instruments also prohibits discriminative, inhumane and degrading acts that affect basic human dignity. 3.3.3 The Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles 2006) 37 Ibid, Art. 2 38 Ibid, 3 39 Ibid, 5 40 Ibid, 6 41 Ibid, 7 42 Ibid, 10 43 Ibid, 25Virginia Muriithi L95s/7740/2010 22 This is an interpretational human rights document containing 29 principles based on existing human rights frameworks. This principles are applied in such a way that a states supposed to interpret them in relation to sexual minorities. An example is the 3 principle on right to be recognized before the law, it states that: “Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-define sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity” This is one of the main documents that acknowledges and protects intersex people. 3.3.4 African Charter on Human and Peoples Rights This is considered as Africa’s most complex and unique human rights document, created by the OAU members uniquely for African states and their unique circumstances. This document does not expressly cover the rights of intersex people but article 2 provides that all individuals should enjoy their rights and freedoms as per the charter without distinction based on race, colour, sex, ethnic group, language, colour, political party, religion, birth or other status. Dilemma though is that sex under the AU framework is still confined to being male/female and that is the main issue in Africa for intersex people that the charter should look into. ACHRPR later formed the African Charter on the Rights and Welfare of a Child, 1990 that provides for the protection of children rights, Kenya as a member therefore has a duty to protect children born intersex from discriminative laws, procedures and surgeries. It does not expressly talk of intersex children but its aim of protecting children if clearly interpreted covers intersex children who under the constitution of Kenya 2010 fall under vulnerable groups.Virginia Muriithi L95s/7740/2010 23 3.5. Conclusion All the above instruments except the Yorgakata principles do not mention intersexuality expressly. All mention discrimination and are against especially on the basis of sex but do not define sex beyond the male and female structures. If this instruments could be amended to include a proper definition of sex and widen the scope of the binary model, then that would be a good start.Virginia Muriithi L95s/7740/2010 24 CHAPTER FOUR COMPARATIVE STUDY OF JURISDICTIONS AND LEGISLATIONS ON INTERSEXUALITY 4.1. Introduction Medicalization probably improved health and even saved lives but nevertheless, such treatments were motivated by psycho social concerns not health concerns, but by psychosocial concerns. Intersex and transgender people in Africa form a large group of HIV infected people and studies even find that HIV prevalence is higher amongst this group people than other groups like MSM. There is Lack of research and data on trans people and even HIV reports do not mention the transgender group. The invisibility of trans people in our epidemiological data in Africa makes society relate gaysim to trans persons leading to the criminalization of both because of lack of understanding. Alternatively trans people are overlooked because researchers find it hard on how to ask gender identity questions in Africa or they are simply just ignored. This chapter looks at how other jurisdictions have tried to cope with this condition by studying the gender rearing model and doing a comparison of the constitutions of South Africa, Malta and strategies adopted by countries in coping with challenges related to this condition. 4.2. Optimum Gender Rearing Model This model was developed in the 50’s at the John Hopkins University. A team of medics and professional experts was brought together to create a multi-disciplinary approach to intersexuality, an approach they hoped would eliminate this condition during early childhood. They had the assumption that children could only live normal lives with normal gender identities if the child’s ways of upbringing, mind and body were properly aligned. After endocrinology44, psychology and eventually surgery the “healed” patient was the normal and stable with their assigned gender (heterosexual). This team campaigned for truth telling plus psychological help but in reality patients got deceived and got little or no psychological help. Doctors mostly made the medical decisions for patients while investments in the informed consent criteria and the 44 This term defines the study of hormones from a medical perspective, in specific the conditions and diseases of hormonal imbalances, or conditions caused by synthetic and even natural drugs. An endocrinologist specializes in the management of such medical issues,Virginia Muriithi L95s/7740/2010 25 study of outcomes which was supposedly systematic seemed minimal till the 60s when medics began studying intersexuality aggressively. John Money a psychologist elaborates the theoretical support of the Hopkins model, he argues that gender identity is mutable in early life because nurturing is of importance than nature. This assumptions were based on the John/Joan Case Reimer David not born intersex but an identical twin(boy). During circumcision he was accidentally burnt off, surgery was done and David was made a girl. For years he lived a very normal heterosexual girl but never felt completely female, but when he learnt of this, he re-assumed this male sex. It’s never been made clear why Money who had 1953 claimed a low rate of psychopathy amongst intersex persons concluded that intersexuals needed gender reassignment and social engineering to be healthy physically and psychologically. In 1993 feminist biologist Anne Sterling published articles in The New York Times and The Sciences exposing the existence on intersex persons. Cheryl Chas replied announcing the founding of the Intersex Society of America (ISNA) explaining her attempts to recover her sex-reassignment history from infancy and the medically induced shame, and because of the disinterest of most of her former care providers in what had happened to her. Soon Chase had brought together dozens of people with intersex. 4.2.1. The Current Approach to Intersexuality Up to today, many medical teams still try to make intersexuality disappear. Paediatric endocrinologist Maria New, recommends medicine to women carrying XX children with such conditions, these treatments don’t alleviate intersexuality but it makes child’s organs appear to be of the stronger organ. Abortion is offered to women likely to get pregnant with intersex children with intersex. Surgeons maintain paternalistic attitudes of removing healthy testes or ovaries from babies to spare them the trauma later. A large number of endocrinologists issue unnecessary and devastating normalizing hormones treatments to patients who are otherwise very healthy. Finally, doctors are still constructing vaginas in young children and infants despite manyVirginia Muriithi L95s/7740/2010 26 arguments by medical professionals that early angioplasties fail too often and are unnecessary to begin with. 4.3. Comparative Analysis 4.3.1 South Africa As a country is in the Global South Africa is considered the most developed country on human rights issues. The constitutional legal rights developed in the Constitution of South Africa are empowering and important but if not overseen to ensure that they are translated into substantive rights for all individuals, the might as well be meaningless. The Human Rights Watch however found that the increase in support of this population has also seen the rise in violence e.g. corrective rape for gender non-conforming persons and sexual in violence in order to “fix” them so that they could be fully “African,” this is because existing laws and policies fail to protects people or provide redress.45 The Constitutions of South Africa This constitution is the most progressive document in Africa on LGBTI matters. After the long struggle for freedom from oppression, segregation, and exclusion of certain groups from others during apartheid the South Africans started developing their 1996 Constitution embraces equality as one of the main fundamental values. The Constitution enshrines the rights of all South African people and affirms the democratic values of human dignity, equality and freedom. Section 9 of the Bill of Rights provides for equality before the law and equal protection of the law, freedom from unfair discrimination, positive measures to advance equality and further provides for the equal enjoyment of all other rights and freedoms. As a constitutional democracy Equality is the cornerstone of South Africa. In the Constitution it is listed as non-derogable rights. Section 9 of the Constitution provides that: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. 45HUMAN RIGHTS WATCH, “South Africa: LGBT Rights a Name Only? Violence, Discrimination Against Black Lesbians and Transgendered People” (5th Dec. 2011)Virginia Muriithi L95s/7740/2010 27 (2) Equality includes the full and equal enjoyment of all rights and freedoms. The State in order to promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Sec 9 can be interpreted to recognize trans persons. First all persons are equal before the law to enjoy all rights and freedoms and in achievement of such equality the state has a duty to protect all persons including persons disadvantaged by unfair discrimination. In sec. 2 the constitution terms the beneficiaries of the constitution and affirmative action as persons or categories of persons leaving it open to all. Second the state should not unfairly discriminate, directly or indirectly through legislation, courts or otherwise and it should in fact redress disadvantages based not only on race, but also on the basis of gender, class and other. Courts should address matters in a manner that protects and advances constitutional values without basing them on gender, sex, sexual orientation etc. The sexual orientation clause in sec 9(2) makes this constitution exemplary as it protects the LGBTI community. In sec. 10 everyone has inherent dignity that should be respected and protected and so the violation of the right to recognition and registration interferes with this constitutional provision. The Promotion of Equality and Prevention of Unfair Discrimination Act No 2 of 2000 (PEPUDA) The Act specifically recognizes intersex persons and defines ‘intersex’ to mean a congenital sexual differentiation which is atypical, to whatever degree.46The definition of sex relevant to the interpretation of the prohibited grounds as captured in Section 9 of the Constitution has also been extended to include intersex persons. It provides: Prohibited grounds are- 46 Section 3 of PEPUDAVirginia Muriithi L95s/7740/2010 28 (a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or (b) Any other ground where discrimination based on that other ground- (i) Causes or perpetuates systemic disadvantage; (ii) Undermines human dignity; or (iii) Adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a). In Sec. 16 the Act establishes Equality Courts with a High Court status to deal with violations of rights and freedoms as laid out in sec. 21.47 Apart from the courts the state is obligated to promote equality by promoting public awareness campaigns and programs, providing legal aid to discrimination victims and to create and aid institutions dealing with such campaigns, enforcement and monitoring of the equality plans.48The Act further provides for social commitment by all persons, non-governmental organizations, community based organizations and traditional institutions to promote equality.49 Gender DynamiX (GDX) Gender DynamiX (GDX) 50is a human rights body that promotes freedom of expression and gender identity, focusing on intersex, transgender and gender non-conforming people in South Africa through advocacy, research and community outreach.it is a regional body networking and facilitating session’s on the lives of transgender persons, refugees, activists and organizations across Africa. GDX currently advocates for the enforcement of the Alteration of Sex Description Act which enables trans persons to change their gender and names on their documents without having surgery. It also strongly engages the police to stop the discrimination by instituting intersex friendly policies and by training officers on how to respect and promote the respect of such rights both in custody and in public.51 47 Provide sec. 21 dits 48 Ibid sec. 26 49 Ibid, sec. 27 50 GDX is a non-governmental South African organization founded in 2005 by Liesel Theron. 51 OSISA (Open Society Initiative for South Africa)Virginia Muriithi L95s/7740/2010 29 According to the Open Society for South Africa the organization is faced with monetary issues that limits the organizations projects and regional access, however with increased funding it could be more successful in nurturing a movement for empowerment and inclusion in Africa Transgenderand Intersex Africa-This is an organization that aims to lobby and advocate for trans rights by raising awareness about the black intersex community in rural areas and black townships so as to oversee the emergence of the African culture from the stereotypical gender concept. 4.3.2 Uganda SMUG (Sexual Minorities Uganda) is an organization for the gay, lesbians, bisexual and transgender human rights activists formed in 2001 as the LGBT basic human rights were being disregarded especially by the police. SMUG with the support, protection and awareness of international human rights instruments aims to transform society by making gender transgressions acceptable so as to enable societal gender transformation e.g. sensitizing the police and creating better relationships with them. Transgender Equality Uganda (TEU) a small Kampala based group of transwomen that came together to improve the health of their community by providing a safe place for transwomen access support and resources, including medical and health care and legal aid. This organization has a few other duties such as protecting women in danger of arrest or assault, participating in HIV prevention and treatment of sex workers including LGBT people. With their limited funding they provide a place where all trans-women can be safe, respected, protected, healthy and legally represented. Support Initiative for People with Congenital Disorder (SIPD), Uganda SIPD protects intersex children and adults with the intersex condition as most infants are as a result of African culture of taboos are murdered out of fear and shame. In some cultures intersex people and their families face extreme social rejection and violence. SIPD counsels parents and children, provides education, documents abuses and educates the public and officials through media outreach, awareness trainings and advocacy. 4.4. GermanyVirginia Muriithi L95s/7740/2010 30 Meyer Heino, a professor of Pshychiatry at Columbia University states that roughly, the intersex conditions is a bit rare estimating that only one in 2000-4000 people are born with this condition. Half of these cases are as a result of genetic makeup abnormalities. Others have worse genetic makeup’s, or are caused by others factor like drugs taken by the mother during pregnancy. So ones gender is assigned based on the doctors and parents best decision. In 2013 Germany was the second country in Europe after Australia, which allowed parents to leave blank the gender on a birth certificate of their child, if the child’s sex wasn’t clear. The EU first cited these so called intersex persons in its Anti-Discrimination Guidelines, this also motivated Australia which went ahead and introduced the gender options to be female, male or “X. It was said that gender equality applies to all, even those whose sex can’t be directly determined. (Switzerland Bio-Ethics Commission) However even with such formal recognition, surgeons prefer to hold off such operations/ surgeries of assigning gender to intersex babies, and wait till such babies are old enough to make a choice. The goal of such legislation is meant to be reducing the pressure put on parents of assigning or choosing gender right after the birth of their children. This is to help aid violating the rights of the child or assigning the wrong genders, so that’s why the law allows parents to leave the gender slot blank if a Childs sex in ambiguous. “If a child cannot be assigned to the female or the male gender," then the status "shall be entered without such information in the register of births.” Normally most intersex people keeping the assigned gender, a few switch though some switch while a very minimal declines identification with either gender. Laurence Baskin, chief in charge of Paediatric Urology at Benioff Children’s Hospital, San Francisco, said instances where surgeons assign wrong genders are pretty rare though not unheard of. 4.4. Conclusion A very big group of people still find the continued acknowledgement of this condition and gender status with a lot of shock. “I think providing any option other than male or female is dehumanizing and medically inaccurate,” quoted Rob Schwarzwalder, a senior VP of the FRC52, a conservative Christian group, but Swedish activist Volcano Del La Grace, who for 37 years 52 Family Research CouncilVirginia Muriithi L95s/7740/2010 31 lived as a male but “came out” as intersex in 1995, find such thoughts and attitudes repulsive. “If your neither female or male, then what are you? You are basically an it.’ You are a monstrosity,” says the activist, “I overcame that, but for most of society, there is a long way to go.” CHAPTER FIVE PROPOSED LEGAL FRAMEWORK FOR REGULATING THE LIVES OF KENYAN INTERSEXUALS 5.1. Introduction The hypothesis of this paper was and still is that the lack a legal and medical framework for intersex persons is an abuse of their rights. This whole dissertation has clearly established that intersex Kenyans are not clearly recognized by the law and their rights continue to be violated with each passing day as they are not afforded any protection. Chapter one in explaining this phenomenon through a conceptual and theoretical framework sets out to support this theory that indeed intersex people exist and that it is a serious pre-existing medical condition. Chapter two seeks to explain the current laws of Kenya, how far they go and how far they fail to protect the rights of this persons. The hypothesis in chapter three based on collected and analyzed data proves that indeed we have Kenyan intersex persons and that some Kenyans are just ignorant or unaware about it. Chapter four then takes up to borrow laws from other countries that are more advanced on sexual rights and the rights of intersex persons. The existence of intersex Kenyans is a reality that has been attested throughout this dissertation based on books, live instances and several case laws. However stereotypic thoughts, traditional and cultural ideas and the failure of the law to act on its citizens rights prove to be some of the main factors for the non-recognition of the rights of intersex persons. As bad as the situation is there is still hope but only if international human rights instruments are ratified in our domestic laws. Also if information is well spread that being intersex is a gender identity medical condition and not merely a sexual orientation issue people would be able to understand this condition and the discrimination would be way lower (It is important to note that intersex persons are discriminated against on sexual orientation grounds as people are not aware of the difference between gender identity disorder and sexual orientation issues).Virginia Muriithi L95s/7740/2010 32 This research based on several statutory provisions such as the registration of births and deaths act, the Children’s act of 2001 and the prisons act uncovers how deep this discrimination is entrenched in our Legal system especially through the mandatory provision of the binary sex model of being either female or male. This system of legal identification hinders the advancement of intersex rights as the legal aspect is the most vital one before accessing all other services, so if the law does not recognize them then no other sector or institution will. The supreme court in the Matter of the IIEC53(unreported)declared that the constitution compels a flexible and broad interpretation approach and therefore the Constitution being all embracive and extensive should definitely not narrow the sex of a person on being male or female, it should be subject to several interpretations that should cater for the sexual rights of all. Below are several recommendations that came up; In order to address this challenges we need to realize that substantive equality is rather more sufficient than formal equality, reason being the former takes into account the particular issues faced by intersex persons, their needs, the current state of society and aims at with coming up with an equitable solution for the society as a whole. Such substantive concepts can as illustrated in this research can be borrowed from court precedents, international laws & statutes, human rights bodies & instruments, international jurisprudence and applied to the existing Kenyan systems. Below are some progressive approaches Kenya could follow to improve the legal and social policies that could be of relevant impacts on the everyday lives of the intersex persons in Kenya. 5.2. Recommendations 1. The Statistic Act54 needs to modify the Kenya Bureau of Statistics55 and ensure there is specific comprehensive research56 on Kenyan intersexuals to determine how common this condition is. Such empirical information will be useful for the government/policy makers, citizens, the medical sector and advocacy groups have the necessary information to enable them explain and deal with this phenomenon. 53 Const. Application Case No. 2 of 2011 on the Interim Independent Electoral Commission 54 Cap, 4 of the Laws of Kenya. 55 This is the body that collects, compiles, analyzes, publicizes and disseminates information on statistics, and coordinates the national statistics system for connected purposes. 56 Comprehensive and specific in coordination with the registration of persons department should ensure that the births or deaths of intersex children is documented or the issues of id registration because of such pre-existing conditions.Virginia Muriithi L95s/7740/2010 33 2. Before such policies and legislations are enabled extensive and exhaustive workshops including the consulting of educational structures on the relevant Kenyan branches of government and several other bodies should be set up to broadly interpret the Constitution, e.g. Article 27 if properly interpreted provides flexibility in reference to some terms such as “sex”, “including” or “on any Ground.” 3. With this information, policy makers should be able to create relevant legal policies that impact the lives of intersex persons, legislations that aren’t non-discriminatory. Instruments such as the Yogyakarta Principles on the Application of International Human Rights Law on Sexual Orientation and Gender Identity should provide guidance in creation of such policies. 4. Creation of laws against hate crime to protect intersex people against Tran’s phobic attacks and crimes. This includes proper definition of terms, for example the law should define the term intersex to refer to people with a medical gender identity condition and not merely as persons with gender diversity issues. In order with these, proper judicial systems should be established to address the issues of discrimination. 5. Introduction of fair and transparent yet expeditious legal procedures that enable intersex persons to do name changing and the gender mark/sex on their identity cards, birth certificates, educational certificates, passports and any other necessary and similar legal documents. 6. The abolishment of sterilization or uncalled for medical treatments/procedures should be legislated to so that such unnecessary medical violations in the name of normalizing are made illegal. This mainly calls for the protection of infants who are subjected to risky medical procedures at tender ages, uncalled for treatments should be criminalized. 7. Introduce proper and accessible gender reassignment procedures like diagnosis, surgery, hormone treatments and psychological treatments that are supported by the public health departments and are government funded. 8. Create policies and amend existing legislation to manage discrimination and the exclusion faced by intersex persons in the education, health care, labour market etc. intersex persons should be consulted in the process of creation and implementation of such policies.Virginia Muriithi L95s/7740/2010 34 9. Creation of a system to address the rights of intersex persons and discrimination based on gender identity through awareness campaigns and training programs. 10. Ensure the training of health services providers such as psychologists/psychiatrists/general practitioners, in regard to the rights and needs of intersex persons and to sensitize the need to respect their dignity. 11. Include intersex right and challenges in the human rights matters covered by equality instruments and human rights bodies. By establishing a way through which legislation could be proposed through several initiatives such as particular government ministry or advocacy groups the government could include intersex persons in the creation of better legislation. NGEC and KNEC being the two main bodies mandated to deal with non-discrimination and human rights issues should play their part to ensure that such violations are dealt with to ensure the safety of intersex persons and to oversee the respect for their rights. The medicalization of intersexuality is a social phenomenon therefore a more open inclusive approach needs to be developed as public discussions about intersex and the uncertainty it causes leads to greater understanding and acceptance of it. This would be appropriate in Kenya a state that is so cultural, traditional and religious proper legal changes would be a great the first step to this society that seems to easily accept biological changes rather than social or legal ones. 5.3. Conclusion Indeed, the most promising avenue for change might just be cultural or social, gently opening the conversation of sexuality beyond the governmental discourse of sex change operations and gender identity disorder and into taboo topics such as sexual orientation. If Middle Eastern politics over the last five years has taught us anything, it is that once- hopeless causes can change overnight. And when it comes to sexuality in Iran, what is considered taboo today could well be encouraged tomorrow. 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