Sexual Orientation, Gender Identity and the Right to Legal Recognition of the Intersex Persons in Kenya

Abstract

This paper discusses the struggles and challenges faced by intersex persons in Kenya in their quest for legal recognition and acceptance by the society without stigma and discrimination attached to their condition. Since the traditional and conventional thinking of the Kenyan society just like in many other parts of the world only recognize two gender dichotomies-that is the male and the female genders, the society is reluctant to accept that there can exist another gender that is neither of the two.This situation is worsened by the lack of a legal framework that recognizes the intersex in the country. This is coupled with lack of awareness by the general public of the existence of the intersex and their condition. In the year 2010, Kenya adopted a new constitution, however, this new supreme law, though coming at a time when the issue of the intersex had become a matter of public concerned, only gave express recognition to the two conventionally recognized gender groups. Later the same year, the constitutional court delivered a judgment which completely denied that there can exist in Kenya a third gender that is neither male nor female. It is submitted here that where as the intersex is a minority group, it is not negligible. These people are entitled to enjoy their full human rights with equality. However, without legal recognition, it is impossible to achieve this. It is thus suggested here that two very important steps must be taken to ensure that this happens; first, the government must come up with a policy programme to sensitize and educate the public on the existence of the intersex. This will deal with the problem of stigma and discrimination. Secondly, enact legislations that recognize the intersex as a third gender and address the unique circumstances of this group. The existing legislations that discriminate against the intersex should also be amended.