High Court Judge Isaac Lenaola
When a mother delivers, the baby is expected to be either a boy or a girl.
However, there are some born with both genitals. Apparently, their fate is left in the hands of doctors, who, at the time of delivery, declare them male or female depending on the visibly dominant sexual organ.
What becomes of their identity? Do they have a right to be registered as a third gender?
The High Court was left to settle this stalemate and it declared that a child born with both genitals has a right to be registered after a mother of a baby, allegedly born at the Kenyatta National Hospital (KNH), moved to the court, seeking to compel Attorney General, Githu Muigai, the Registrar of Births and KNH to issue him or her with a birth certificate.
In a ruling by High Court Judge Isaac Lenaola, the issue of inter-sex has been shunned out of legislation. Justice Lenaola recommended that Parliament should enact laws to protect this gender, adding that children born with both genitals are not different from those with either.
Sometime in May 2009, a woman bore a child bearing male and female genitalia. This prompted the hospital to issue her with various documents used in the process of carrying out genitogram tests, x-rays and scans on the child, and a question mark (?) inserted in the column indicating the child‘s sex.
To date, the child has not been issued with a birth certificate, causing the woman to move to court. She argued the entry of a question mark on the child‘s medical and treatment notes as a description of its gender offended the child‘s rights to legal recognition, eroded its dignity and violated its right not to be subjected to inhuman and degrading treatment.
In the suit dated May 24 2013, the petitioners; the mother of the child and The Cradle- a children‘s rights body, asked the court to order that children born with both genitals (inter-sex infants) should be legally recognised and protected.
Further, the petitioners, through their lawyer John Chigiti, sought to have a declaration that all surgery on intersex infants that is not therapeutic, be approved by a court by way of a judicial review order under Article 23 of the Constitution and under the principles of the best interest of the inter-sexual child.
In the case, Chigiti submitted that under Article 5 of the Universal Declaration on Human Rights, everyone has the right to recognition everywhere as a person before the law, including intersex, and that in Kenya, legal recognition is achieved through the issuance of statutory documents known as an acknowledgment of birth slip and a birth certificate, which is issued by the Registrar of Births and Deaths. Chigiti told the court it had become problematic for inter-sex children to be registered because the form only provides for male and female sex markers.
He submitted that the said provision denies an intersex child the right to legal recognition and violates Article 7 of the Convention on the Rights of the Child, which provides that the child has a right to be registered immediately after birth and have the right to a name.
“The respondents have failed to discharge their positive obligation and duty owed to the baby, owing that the Bill of Rights shall be enjoyed by every person to the greatest extent consistent with the nature of the right or fundamental freedom,” he said.
In the case, Kenya National Commission on Human Rights, National Gender and Equality Commission and Kenya Christian Professionals Forum Limited had come in as interested parties. The court heard that corrective surgery for intersex children is not necessary, unless there is a therapeutic need to conduct the surgery and that forced genital normalisation interferes with a child‘s right to family and reproductive health rights generally. Chigiti submitted that the Court should direct that such surgeries be done only when the child is of age so that he or she may make an informed decision.
In response to the suit, the Attorney General told the court that the mother of the child had failed to show in her case that she had indeed requested for a birth certificate and that the same was denied to her. Githu argued that the court could not be called upon to make additional provisions on an existing law or legislate on matters touching on inter-sexual people and registration of persons, as that is the work of Parliament.
He submitted that only Parliament could enact legislation, recognising the introduction of intersex as a third sexual category, adding that intersex children are properly recognised in existing legal framework and they all fall in the sexual categories of female or male, depending on their dominant sex. “Because the legal framework in Kenya recognises intersex children, then if follows that they enjoy all the fundamental rights and freedoms in the Bill of Rights without discrimination,” he said.
The court heard that the appropriate forum for the complaints is the Legislature and that the courts cannot expound the meaning of ‘sex’ if Parliament has failed to do so.
The interested parties told the court that Article 27 of the Constitution discriminates against intersex persons as it only makes reference to men and women but that fact alone could not be interpreted as an exclusion of other gender groups such as the intersex. They recommended that there is need for enactment of legislation to recognise intersex persons as a different gender classification. Justice Lenaola in his ruling, said the issue of intersex being declared as a third sexual category should be left to Parliament.
“Turning back to the issue, therefore, whether we should have a third category of sex call intersexuals, I would be persuaded by the reasoning that such a matter ought to be addressed by clear legislation. Whereas this court can find and has found that intersexuals are entitled to all rights under the Bill of Rights, to go further and create, by a judgment such as this one, a third categorisation of sex would, in my view, be over stretching the court’s mandate,” he said.
Lenaola concurred with the AG that there was no evidence produced before the court to show that the rights of the child had been violated.
On the other hand, Justice Lenaola concurred with the argument that no laws or guidelines on how medical examinations and eventual corrective surgery on such cases should be carried out, though he declared that the court‘s hands were tied from compelling parties to the conduct surgeries.
“Time is now ripe for the development of rules and guidelines on corrective surgeries for intersex children especially minors. To my mind, the fact that an intersex person, as defined elsewhere above, does not fall within the definite criterion as being distinctively male or female should not negate his right as a human being in whom rights and freedoms are inherent. The fact that the Births and Death Registration Acts and the Constitution do not define the term ‘sex’ does not mean that we should hide behind the traditional definition as we know it,” Justice Lenaola said.
He said that it is the duty of the State to protect children born as inter-sexual, by providing a legal framework to govern issues such as their registration, examinations and tests by doctors which will in turn lead to corrective surgeries.
“I strongly urge Parliament to consider enacting legislation in that regard. This in my view ought to be done in close consultation with various interested stakeholders including all the Parties to this Petition the AG must therefore move with speed and spearhead the enactment of such legislation,” he said.
Justice Lenaola directed the AG to file a report on the status of a statute regulating the place of intersexuals as a sexual category and regulations for corrective surgery for intersex persons within a period of 90 days.
He further directed that the mother of the child should make an application to have her child registered by registrar of births adding that a report should be filed within the same period of time.