Kenya’s Struggle for Intersex Rights: Human Rights Commission Champions the Intersex Bill 2023 Amidst Ongoing Challenges

In many African countries, intersex individuals — people whose sexual anatomy does not typically fit the traditional definitions of male or female — grapple with a multitude of challenges. From overt discrimination in education and employment to restricted access to healthcare services, these individuals endure the brunt of social prejudice and stigma. Compounding these problems is the lack of legal recognition for intersex persons, a deficiency that makes obtaining official identification documents a daunting task.

Many traditional African societies bear negative perceptions of intersex individuals, viewing them as unclean, harbingers of ill-omen, or possessed by evil spirits. Rooted in religious beliefs, these viewpoints assert that intersex individuals are the physical manifestation of malevolent spirits, yet they must not change their identity but rather seek cleansing.

The struggle for recognition of intersex persons gained momentum in Kenya, which emerged as the first African country to include intersex individuals in its 2019 census. This milestone was the culmination of tireless efforts in the streets, courtrooms, and parliament to bring this marginalized group to the fore. Despite this progress, Kenya’s legal framework still lacks specific provisions catering to intersex individuals. This absence of legal recognition presents hurdles in acquiring official identification documents that would accurately reflect an individual’s intersex status.

According to the Kenya National Bureau of Statistics (KNBS), the 2019 census identified 1,524 intersex individuals living in Kenya. Of these, Nairobi County was home to the highest number, with 245 identified intersex individuals, followed by Kiambu with 135 and Nakuru with 95.

One such individual, 26-year-old Boniface Nyakundi from Kisii County, shares his painful experience of growing up as an intersex person. Born in Kericho county with both male and female reproductive organs, Nyakundi’s arrival was met with shock by his extended family. Despite their rejection, his parents embraced him with love, treating him no differently than any other child.

However, the post-election violence in Kenya changed their circumstances drastically, forcing them to relocate to Kisii, Nyakundi’s ancestral home. As Nyakundi enrolled in a new primary school, the challenges associated with his intersex status intensified. He was subjected to relentless bullying and humiliation by his peers, which eventually led him to question his identity. He vividly recalls the immense difficulty and embarrassment he faced in using school washrooms, often being followed and peeped at by curious and judgemental students. These distressing experiences caused him significant emotional turmoil, with Nyakundi contemplating dropping out of school several times.

The year 2013 marked a turning point in Nyakundi’s life with the death of both his parents, the only pillars of support he had. For an entire year, he isolated himself within his compound, avoiding the humiliating glares and hurtful remarks from his community. However, his courage eventually led him back to school, only to be met with further torment. A painful memory still etched in his mind was when his villagers attempted to strip him in public, saved only by the intervention of a sympathetic woman who stood up for him. This woman, whose grandchild was also intersex, offered her protection and friendship to Nyakundi, reminding him that he was not alone in his journey.

Another intersex individual, Marylin Omwenga from Kisii, shared similar struggles, particularly when it came to personal relationships. She found it exceedingly challenging to establish romantic connections with others, who often recoiled from associating with her due to her intersex status. Her struggles extended to her education, where she found it necessary to avoid school restrooms entirely to evade potential humiliation.

In 2009, a landmark court case emerged in Kenya when a mother challenged the ambiguous gender assignment of her child on the birth certificate. In 2015, the high court ordered the government to issue a proper birth certificate to the child and subsequently created a task force to recommend methods to support intersex children.

Currently, the Kenya National Commission on Human Rights (KNCHR) is conducting public consultations across 24 counties on the Intersex Bill 2023. This proposed legislation seeks to provide recognition, protection, and safeguarding of intersex individuals’ human rights, ensuring equal opportunities and affirming non-discrimination.

The proposed act will include provisions for registering births, amending official documentation to accurately reflect intersex status, and modifying identification particulars. KNCHR’s CEO, Dr. Bernard Monari, emphasizes the bill’s significance, asserting that it is designed to protect intersex persons. The commission is diligently working with stakeholders to polish and enact the bill into law following these consultations.

Juliet Maganya, a member of the Intersex Persons Committee (IPC) and the Child Rights International Network, points out the rampant discrimination and harassment intersex individuals face in educational institutions and workplaces. This discrimination often hinders their access to equal educational and employment opportunities, leading to their social marginalization.

Medically unnecessary surgeries, often performed without consent to align intersex infants and children with societal expectations of binary sex, are alarmingly common in Kenya. These interventions can inflict long-term physical, emotional, and psychological consequences on the individual.

Moreover, access to appropriate healthcare for intersex people in Kenya is often limited. Many face challenges in locating healthcare professionals who are knowledgeable and sensitive about intersex variations. The absence of support services such as counseling and peer support groups tailored to their specific needs further compounds their struggles. Without these vital support networks, feelings of isolation become more profound, contributing to an array of mental health challenges. Through the shared stories of individuals like Nyakundi and Omwenga, and the steps being taken by organizations like the KNCHR, there is hope that progress towards understanding, acceptance, and protection of intersex individuals in Kenya, and across Africa, will continue.