The Legal Status and Rights of Intersex Persons with Special Reference to Kenya

Abstract

What a person’s sex means, as well as what it should mean, has been subject of an unending debate. The intersex debate has raised questions as to what should be regarded as sex and how one’s sex should be determined. These questions out-sprang mainly following the incessant appreciation of the existence of a group of people who can be categorized as neither male nor female, the intersex class. The recent recognition of the intersex person in Kenya raises a number of legal questions regarding the rights of the intersex, including whether their rights have historically been infringed and whether such recognition will act as an end to these infringements. This research paper will define the intersex and look into the position of such persons in the Kenyan context regarding their rights. The intersex condition as well as its legal implications are perceived to be minimal in most legal systems worldwide. Where and when intersexuality was talked about and given some sense of recognition in the last centuries, it was viewed majorly as a social and medical problem rather than a legal one. Towards the end of the 19th century, courts and the legislators played a key role in the determination of the sex of the intersex persons. Things, however, gradually changed in the 20th century following the advancements of the techniques in the medical field which saw the medical practitioners as the major players in the establishment of the sex of the intersex persons. It is the continued infringement of the rights and freedoms of the intersex that has prompted various legal and policy interventions in the past decade. It is for the same reason that I undertake to write this research paper. This paper discusses the rights and freedoms of the intersex persons in Kenya, having its main focus on the recognition of the intersex as a gender and its legal implications.