It began with that little girl, when she was brought to court in 2009. The issue was she was in need of care and protection. It was initially a straight forward case of neglect — Teresia Matheka, magistrate
By Standard on Sunday reporter
A draft Bill seeking legal recognition for intersex individuals – people born with both male and female sex organs – has been lying at the AG chambers since 2011.
The Bill – drawn by stakeholders in transgender matters, state counsel and with input from legislators – is perhaps the clearest indication that the intersex debate is slowly but surely acquiring national status. It is a bold step in confronting the social stigma associated with the condition.
But opposition to the legal recognition of intersex individuals is alive among Christians, social scientists and even within the government bureaucracy. Faith groups oppose the move with the argument that it is an attempt to introduce a “third gender”.
On the other side of the debate, advocates of a legal framework to deal with intersex individuals are determined to secure the rights of people born with the condition.
“We need to interrogate and have a discussion about people born as intersex and where they fit in society. Our Constitution is clear that we cannot discriminate on any basis, but people with peculiar issues are being hampered in their lives by the lack of policy guidelines or laws that recognise their existence,” says Teresia Matheka, a chief magistrate who has worked for over two decades in the Judiciary. She is researching and writing a Masters dissertation on women’s law at the University of Zimbabwe with a bias on intersex individuals and their rights.
In 2009, then Executive Director of the Kenya Human Rights Commission wrote a letter to the Ministry of Health, seeking access to healthcare for an intersex individual. Dr Francis Kimani, who was the Director of Medical Services, responded with a two-sentences letter: “There is no policy about intersex. This issue is more on human rights than medicine.”
Germany became the first European country to legally recognise intersex children effective November 1, 2013. Australia, India, Pakistan and Nepal already provide legal recognition of a third gender on legal and official documents. The new German law is intended to ease the pressure on parents and prevent hasty decisions regarding newborn sex-assignment surgery, allowing parents to leave gender blank on birth certificates.
The German Interior Ministry announced the new law that will create a third designation for gender in German passports; alongside “F” (female) and “M” (male) Germans will soon be able to choose “X” for intersex.
Kenya is not anywhere near there yet, but debate on the subject is heating up. What is not in doubt is that intersex people (hermaphrodites) exist in our midst.
In the last two years, two intersex children have seen their parents grapple with both a hostile social order and an absent legislative framework to provide their children with legal protection.
Teresia, who started out in Kibera Law Courts and has worked around the country, developed interest in the subject after presiding over a case of a minor in Nyahururu who had been abandoned by her parents and was being attended to by government employees from Social Services department.
Her work placed her in a position to empathise with both sides of the challenge – to understand the fear of parents while recognising the legal limitations of existing laws. “For me it began with that little girl, when she was brought to court in 2009. The issue was that she was in need of care and protection. It was initially a straight forward case of neglect,” recalls Teresia.
The girl had been taken to a home for the night while the case was proceeding. “An officer came the following morning and told me: ‘by the way that little girl, is not just a girl. She has both sex organs’.” That was the call for Teresia to educate herself about intersex. She remembers that the girl was very withdrawn and this profoundly moved her.
“As a parent I wondered what one could do about this. It was an issue. Society is generally heterosexual and if you are outside that norm, your other rights could be denied. What struck me was that intersex persons are outside (the norm) and are not even mentioned in the Constitution.”
What Teresia did not know was that muted debate on intersex persons had began much earlier. The case of Richard Muasya Mwanzia came to her attention.
He had been arrested in 2008, accused by a neighbour of robbery. Mwanzia had been held at a police station in Kitui overnight. It was here that it was discovered he had two sex organs. He had been held with male prisoners and had appealed that his fundamental rights had been breached. Over the last five years, Teresia has come across a litany of information and contacts of people willing to come forward and confess their intersex status. And then it struck her, the problem was bigger than she may have imagined. So many questions confronted her. How did these individuals survive in a society that viewed them with suspicion and grouped them together with gays and lesbians ?
“I was struck from the Mwanzia judgment that we do not have statistics on intersex for us to justify that these people have rights? I had not met Mwanzia but I knew about this child, and I knew she has special needs. That her parents kept her top secret because the rest of society looks at it as something strange.”
In Mwanzia’s judgment, the court recognised that intersex was rare, but Teresia wonders what the numerical threshold should be for people to be legally recognised.
“Is it a disability issue or where do we draw the line? Where do we place intersex?,” wonders Teresia. Ambiguous genitalia, the medical term for intersex, is challenging the norm of the Kenyan society as more people in this condition step forward. Audrey Mbugua, a transgender activist who has been involved in lifting the veil and helping parents and intersex children to come out and get assistance, says many parents are not prepared when their child is born with both sex organs.
Charles Kanjama, a lawyer and a member of the Kenya Christian Fellowship of Lawyers, says Kenya is sliding into the danger of recognising a third gender.
He compares it to other choices that humans don’t make on inception. “We don’t choose our gender, our ethnicity, our parents or where we are born. Why should we suddenly be given the opportunity to choose our gender?”
Kanjama argues that the one issue there is no debate about, especially among Christians, is that there are only two genders. Period. And he is appalled that parents now want to have a choice to tick either male or female on the child’s birth certificate.
“What we have are cases of gender ambiguity disorder which is purely biological and which can be detected immediately at birth and corrected accordingly,” he says.
What Kanjama is against is parents waiting for the child to grow up before deciding which gender to adopt, something he equates to child abuse. He is a strong advocate of medical intervention to correct the disorder soon after birth and would like to see a legal protocol developed that removes the grey area between intersex at birth and the period that allows the child to grow up without a defined gender. But Teresia believes that an intersex child should be allowed to grow up to allow for a clear definition of gender. She says Kenya can no longer avoid the issue.
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