UNIVERSITY OF NAIROBI
SCHOOL OF LAW
PUBLIC INTEREST CLINIC
BONIFACE KARIMI NYAMU – G34/41147/2011
MARTIN NJUGUNA NGUGI – G34/9713/2003
OLIVE MUKAMI NYAGA – G34/40296/2011
IBRAHIM KHALIF IBRAHIM – G34/ 40605/2011
KEMEI JOEL KIPCHIRCHIR – G34/44181/2011
MBUGUA SHALOM THAAMA – G34/39949/2011
KABIRURI FRANCIS KIARIE – G34/ 39151/ 2011
THE RIGHTS OF INTERSEX PERSONS
STATEMENT OF PUBLIC INTEREST
Intersex persons as a minority group lack legal recognition and this in all its form runs counter to the provisions and spirit of the Constitution and the international instruments such as The Universal Declaration of Human Rights. The rights of intersex persons are an issue of public interest since the Kenyan Law does not explicitly make specific provisions for the rights of intersex persons. Lack of legal recognition results in discrimination of persons who are intersexual.. It is important that our society respects the dignity of everyone including those persons who are intersexual. The inherent dignity of every human being forms the basis of legal recognition and protection of their fundamental rights. This protection becomes all the more necessary and relevant for groups that are vulnerable to abuse
The treatment of intersex persons at large raises important human rights issues. Intersex persons have been and continue to be seriously stigmatized in society they are subjected to a phenomenon referred to as ‘intersex phobia’ and invariably transphobia’. The plight of intersex persons is exacerbated by the fact that there is no legal recognition of intersexual persons, and this potentially exposes the persons who manifest such conditions to the possibility of exclusion and discrimination since such persons remain unrecognized and unacknowledged in many jurisdictions.
An intersex person is an individual who, because of a genetic condition was born with ambiguous sexuality and thus cannot be differentiated as being male or female. Intersex means congenital physical differentiation which is atypical to whatever degree. It further refers to people who have genetic, hormonal and physical features that are neither exclusively male nor female, but are typical for both at once or not clearly defined as either. These features can manifest themselves with secondary sexual characteristics such as muscle mass, hair distribution, breasts and stature: primary sexual characteristics such as reproductive organs and genitalia; and or in chromosomal structures and hormones.
THE GAPS IN THE LEGAL PROTECTION OF INTERSEX PERSONS
Article 10 (2) (b) of the Constitution outlines the national values and principles of governance among them human dignity, equity, social justice, inclusiveness, human rights, non-discrimination and protection of the marginalized. The above values shall bind all state organs, state officers, public officers and all persons whenever any of them interprets, applies the Constitution or any other law or implements public policy decisions.
The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings as envisaged in Article 19(2) of the Constitution. The fact that intersex persons and other sexual minorities are not recognized by the State means that they cannot enjoy their full potential or indeed enjoy their most basic rights.
Right to citizenship/nationality.
Article 12(1) provides that every citizen is entitled to the rights and privileges of citizenship, subject to the limits provided or permitted by the Constitution ; and a Kenyan passport any document or registration or identification issued by the state to citizens.
The question is, are intersex persons citizens? How can they show that they are? Article 13 (2) of the Constitution provides that citizenship maybe acquired by birth or registration. This means that being born in Kenya and of Kenyan parents, they are definitely citizens. They however do not have documents such as birth certificates or identity cards that identify them as Kenyan citizens. The reason intersex persons are unable to acquire such documents is the gap in the Birth and Deaths Registration Act which does not include intersex as a gender category neither does it define sex. The Act also requires that every birth be registered and prescribed particulars be maintained. This therefore means that the identity of an intersex person is denied by the state at his application to enter the register of human livings in Kenya and often falsified by the proposition that he or she must be registered as a “male” or “female” thereby making an intersex child stateless, nameless and a non-entity before the law.
Right to equality and freedom from non-discrimination
This group of people does not enjoy explicit protection from discrimination under Kenyan Law, as article 27(4) of the Constitution 2010 does not include gender identity among the listed protected grounds. In October 2009, the Committee of Experts on Constitutional Review ruled out the explicit inclusion of these characteristics in the list of draft constitution citing fears that the draft would be rejected by a majority of Kenyans if it did so.
While the Constitution does not explicitly provide for non-discrimination on grounds of gender identity, there is a scope for this to be rectified through the courts or subsequent legislation. Article 27 (4) of the Constitution of Kenya 2010 provides that the State shall not discriminate directly or indirectly on any ground, including (listed characteristics), while Article 27 (5) states that persons shall not discriminate on any of the grounds specified or contemplated in clause (4). Thus defined, the prohibition on discrimination by both the state and non-state actors should be read as inclusive of gender identity.
The 2008 case of R.M an intersex person who identifies as a man provides an interesting insight into how the increased flexibility provided by the definition in Article 27 could benefit intersex persons. R.M challenged the circumstance of his incarceration and various laws, policies and practices which discriminated against him as an intersex person. R.M argued inter alia that intersex should be included as a form ‘other status’ under Article 82 (the previous Constitution) but this argument was rejected by the court.
It is pertinent to note that the Constitution itself makes a reference to only men and women. It is therefore arguable that the fact that the Constitution only mentions men and women should not be interpreted as an exclusion of all gender groups, such as intersex what needs to be done is to legislate to recognize intersex persons and deal with their unique circumstances. Legislation to recognize sexual minorities that do not necessarily conform to the conventional description of gender identity has been addressed by other countries. South Africa has embraced the above approach in that it has enacted The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
Right to freedom and security.
Every person has the right to freedom and security and not to be subjected to any torture whether physical or psychological as guaranteed by section 29 (c). Section 29 (f) provides that every person has a right not to be treated inhuman or degrading manner.
Intersex persons are at the risk of suffering inhuman and degrading treatment in prisons like in the case of R.M. This is because the Prisons Act (Cap 90) only recognizes prisoners of male and female gender. It does not make provision for intersexuals. The Act is silent on how intersex persons should be treated. This omission exposes intersexuals who are incarcerated to harassment by other prisoners and prison wardens. Intersex persons are exposed to mockery, ridicule and verbal abuse by the inmates and prison warders.
Due to lack of recognition the intersexuals right to vote as enshrined under Article 38 of the Constitution is violated. Without a birth certificate, an intersex person cannot obtain a national identity card which is a requisite document before one is registered as a voter. In the circumstances, the petitioner cannot be registered in any constituency as a voter or vie for any political seat or vote anyone else. An intersexual is disenfranchised on account of his intersex status.
Freedom from movement
Every citizen is entitled to the right to freedom under Article 39 of the Constitution. The lacuna in the Birth and Deaths Registration Act means that intersex persons cannot enjoy their right to freedom. This is because one cannot move freely without proper identification documents. The right to movement is facilitated by documents such as identity card and passport which can only be obtained after getting a birth certificate.
Right to property.
Intersex persons cannot enjoy the right to acquire and own property as guaranteed under Article 40 of the Constitution. This is contrary to Article 17 of the Universal Declaration of Human Rights.
Intersexuals cannot get employment. This is because one cannot be employed without a national identity card, which they can only get if they acquire a birth certificate. Yet an intersex child cannot get a birth certificate because he is neither male nor female. Intersex persons cannot attain academic qualifications due to social stigma they face in school and the fact that they cannot access examination registration forms. This is contrary to Article 23 (1) of the Universal Declaration of Human Rights which guarantees every person the right to work, the freedom to choose employment and the right to equal pay work. Intersex persons are disadvantaged in the job market.
BEST PRACTICE IN OTHER JURISDICTIONS
The problem of the right to the intersex has been a challenge to many countries legal. Most of the countries view it as an abnormality hence prefer that the victim of the person is taken for surgical rectification other than changing the law to accommodate them.
However there are countries that have recognized that the rights of this category of people are unique and need recognition in the legal frame work.
The following countries have enacted laws that cater for the intersex.
South African Human Rights Commission (SAHRC) submitted to the parliament a proposal to the amendment of the equality Act so as to include the intersex for the protection and recognition of this group. This was prompted by the fact that the group suffered discrimination and lack protection of the law. In fact it is expressed that they remained strangers of the law.
South Africa is leads in the world in expressly affording such protection of this vulnerable group within the society dominated by the binary category of male and female gender.
This step is a paradigm shift from the medical to a more humane understanding that the intersex condition is not a health issue but goes deeper beyond the external manifestation of the manhood or womanhood. It is observed that many people have suffered the societal fixation and even undergone surgery only to live in denial of what they really are.
The society binary understanding of human beings that they can only be in two sexes has been challenged by the amendment of this act and given protection to this group that could not come out due to the harshness of the society.
The law needs to recognize intersex people. Where it has not they have been subjected to unwarranted discrimination by being outside the operating law. For instance in;
Wilma Wood v. C.G. Studios, 660 F. Supp. 176 (1987), in which a U.S. federal court held that an intersex person could not bring an employment discrimination claim after she was promptly fired when her employer learned of her intersex condition and the corrective surgery she had undergone. Interpreting an employment non-discrimination act that broadly prohibited discrimination based on “race, colour, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability,” the court found that while “the term ‘sex’, as it is used in the statute, would encompass discrimination against women because of their status as females and discrimination against males because of their status as males,” it did not encompass the plaintiff’s intersex condition. Because no definition of “sex” was provided in the law itself, the court decided it had to look to the legislative history and the intentions of the legislators themselves, and ultimately found that because the legislators didn’t clearly discuss intersex-based claims, they could not have intended to include them within the scope of the act.
A more recent case that demonstrates the inhuman treatment these people undergo by the very fact they are neither men nor female. In;
DeMarco v. Wyoming Department of Corrections, 300 F. Supp. 2d 1183 (2004), was handed down by another U.S. federal court just a few months ago. Miki Ann DeMarco is an intersex person with a non-functional penis, no testicles, who has lived her entire life as a woman in every respect (including being married three times over). She was sent to the Wyoming Women’s Centre detention facility after her parole status was revoked due to a positive drug test.
Upon arrival, she was classified as a minimum security risk, eligible to serve out her sentence in the minimum security wing—the “West wing”—which was equipped with comfortable furnishings and where she would be allowed to keep personal effects and have access to wage-earning opportunities, educational opportunities, and of course the fellowship of other inmates. However, when prison officials discovered her penis, they immediately put her in solitary confinement in the maximum-security wing—”Pod 3″—where she was treated in every respect as a high-risk inmate for the full term of her sentence. This involved eating, sleeping, exercising—indeed, living—in complete isolation, in a cement cell with only bolted-down steel furnishings, and a complete denial of personal effects, even the “two decks of playing cards . . . normally provided to death row inmates.”
When Ms. DeMarco later brought a suit alleging that her treatment had been in violation of the Equal Protection Clause of the U.S. Constitution, the court responded by holding that intersex persons were not a “constitutionally protected class”; indeed, that they had not been “subjected to a history of purposeful unequal treatment.” Examining the facts of DeMarco’s treatment under the highly deferential “rational basis” test, the court (somewhat regretfully) concluded: “no equal protection violation occurred.”
This is an expression of the background under which the South Africa state took the bold move to ensure the law is just and applicable to this group. The amendment of the law also changes the fix and dogmatic perception and categorization of the people as living only under two undisputable genders.
Australia has acknowledged the discrimination that the intersex people undergo and appreciated that the fact that they belong to their own category different of the socially recognized binary groups. Through
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (SDA Amendment Act) inserts these new grounds into the Sex Discrimination Act 1984 (Cth) (SDA).
The amendment provides that;
“From 1 August 2013 it will be unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status under federal law. Same-sex couples are now also protected from discrimination under the definition of ‘marital or relationship status’. These new protections will particularly apply to lesbian, gay, bisexual, trans, gender diverse and intersex people.
Those who experience discrimination are advised to complain to the Australian Human Right Commission for redress.
This has also been necessitated by the scientific prove that surgery is not the cure for the intersex people and that the condition is not only physical but much more for if involves the invisible makeup of an individual.
This has been manifested by the dissatisfaction that is expressed by those who undergo medical procedures to fully place them in a distinct gender. A case in point is the suicide committed by a child that underwent a surgical operation while very young to rectify his recessive penis only to deny what the doctor thought was successful. (David reimer)
What needs to be done is to legislate to recognize intersex persons and deal with their unique circumstances. The Kenyan Law needs an equivalent of the Promotion of Equality and Prevention of Unfair Discrimination Act which specifically provides for intersex persons. It has broadened the meaning of sex to include intersexuals. The term ‘sex’ needs to be given a liberal interpretation so as to include intersex as a criterion upon which no differential treatment can be accorded to the individual.
The courts need to give a generous and purposive interpretation to Constitutional provisions protecting human rights while carefully considering the language used in the Constitution. . The fact that the Constitution only mentions men and women should not be interpreted as an exclusion of all other gender group .The courts have a responsibility to interpret the Constitution in a manner that protects and enhances the rights of minorities and other disadvantaged group. The provisions of the Constitution must be interpreted to uphold and give effect to the letter and the spirit of the Constitution.
Intersex persons are entitled to enjoyment of rights like anyone else. This is the position stated in Principle 1 of the Yogyakarta principles. Principle 1 provides that all human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights. The principles put an obligation on the states to embody the principles of universality and indivisibility of all human rights in their national constitutions, amend any legislation, including criminal law to ensure full enjoyment of all human rights by all human beings as well integrate within state policy and decision making a pluralistic approach that recognizes and affirms the indivisibility and interrelatedness of human identity including sexual orientation and gender identity.
The Transgender, Gender, Variant & Intersex Justice Project report from San Francisco USA
In the Spirit of Harambee – Addressing Discrimination and Inequality in Kenya – Kenya Commission on Human Rights and The Equal Rights and Trust Report.
Berkeley Journal of Gender, Law & Justice Anne Tamar, Mattis, Exceptions to the Rule Curing the Law’s Failure to protect intersex infants.
International Legal Developments Protecting the Autonomy Rights of sexual minorities who should decide the appropriate treatment for an intersex child? By Julie Greenberg : 2006 Research Paper Series.
The Constitution of Kenya 2010.
The Promotion of Equality and Prevention of Unfair discrimination Act.