What you need to know:
- In the Kenyan law, an intersex child is referred to as a child with a congenital condition where the biological sex characteristics can’t be exclusively categorised in the common binary of female or male.
- They have inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns, and, as a result, suffer significant stigma.
I am a mother of an intersex child. My child has been termed cursed and has often been discriminated against by schools and society. This resulted in my child being chased away from various schools for what has been called un-African behaviour. How does the law protect my child’s rights?
Mercy Sepina, Samburu
In the Kenyan law, an intersex child is referred to as a child with a congenital condition where the biological sex characteristics can’t be exclusively categorised in the common binary of female or male because of inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns. As a result, they suffer significant stigma and often times, mothers bear the cross of this stigma.
The High Court, in the cases of RM vs Attorney General & 4 others , eKLR and Baby ‘A’ (Suing through the Mother E A) & another v Attorney General & 6 others , eKLR), upheld the rights of intersex persons to non-discrimination and affirmed their right to protection from torture, cruel, inhuman and degrading treatment by holding that intersex persons are protected under Article 27(4) of the Constitution. The court also underscored the need for empirical data on intersex persons.
Following these judgments and several lobbying strategies, the taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons was constituted and gazetted by the Office of the Attorney-General through Gazette Notice No. 4904 in 2017.
The taskforce undertook comprehensive research and stakeholder consultations and rolled out a nationwide survey, which informed the key proposals on development of policy, legal, institutional and administrative measures to address intersex persons’ plight.
One important development of the legal reforms was the Children Act of 2022, which accords intersex children protection under Section 21. It recognises that such children ought to be treated with dignity and accorded appropriate medical treatment, special care, education, training and consideration as a special category in social protection services.
Kenya’s education system is still miles shy of recognising the rights of intersex children. Notably, the National Care Reform Strategy for Children in Kenya (2022-32), developed by the State Department of Social Protection, has failed to mention an implementation strategy solely for intersex children.
The writer is an advocate of the High Court and award-winning civil society lawyer ([email protected]).