The third gender agenda: The journey for legal recognition of Kenya’s intersex individuals

Behind the Mask’s Kenya Correspondent Melissa Wainaina spoke to human rights lawyer John Chigiti who represented RM, a Kenyan seeking recognition by the courts as an intersex individual.

John Chigiti is a family man and a senior partner at Chigiti and Chigiti Advocates based in Nairobi. He has practiced law for over 14 years and has previously worked with a number of well-known local and foreign NGOs. He has provided legal aid primarily to those who are marginalised including children, women, persons with disabilities and sexual minorities.

Chigiti filed a landmark court case filed on behalf of RM (not his real name), requesting to introduce a third gender. The case was presided over by three Kenyan High Court judges Hannah Okwengu, Ruth Sitati and George Dulu.

While the judges awarded Sh500,000 (US$5,400) for the inhuman and degrading treatment at Kamiti Maximum Prison however the claim for the recognition of his as a third gender was rejected.

Currently, Chigiti is seeking to build a public interest litigation case on behalf of an intersex minor whose hospital test records indicate sex as unknown. The following are excerpts from their conversation.

How did you begin your work on legal aid and human rights issues?

Six years ago, I broke away from employment and this exposed me to a large number of Kenyans who have real difficultly in accessing justice. They seem to be a majority.

After leaving practice in a large firm I realised that many Kenyans lacked access to justice; the poor, the marginalised, the old, children persons with disabilities and sexual minorities and so on.

Please shed light on some of the specific gains you have seen in the New Kenyan Constitution and the Judicial Reforms seen in Kenya lately?

Kenya’s current constitution has had positive effect on those previously marginalised.

For instance, Article 35 gives the citizen the right of access to information.

Article 48 on the rights to access to justice for all and Article 43 that provides for the right to access economic and social rights.

These particular clauses were not in the old constitution and have gone a long way in opening the doors of justice to those who could not access it previously.

Further, Article 53 in the Kenyan Constitution clearly states that every child has the right to a name and nationality from birth and these are good avenues for us to seek changes in the births and death statute to have the inclusion of the third gender.

One other major gain is the recognition of international laws, treaties or conventions ratified by Kenya that will form part of the law. This allows us to utilise international instruments and applying these to rights violation cases. We also seek best practice globally in arguing our cases so the platform is much wider for us to draw from.

In a nutshell, the marginalized have a bigger space to litigate with the current constitution.

It is also encouraging to see the judicial reforms taking place and the interviews (to select members of the bench) are now carried out in the public domain. Some of the questions fielded to the judges in the interviews included how much pro bono work the judges have done, what their definitions and views are on access to justice, their take on legal aid and so on. In fact, it was very encouraging that RM’s case for recognition of intersex persons was used to illustrate judicial activism and reflected on the judgment that saw him denied recognition as an intersex.

So in a sense judges and the judiciary in general is opening up in Kenya.

Do you get a sense that ordinary Kenyans have a real engagement with the constitution, what do you feel can be done to get much more people aware of their rights and freedoms and fight legislation that is oppressive in nature? It seems that most Kenyans interaction with law is at a sanction level.

As individuals we need to be aware of our rights, monitor the bills being drafted and the media needs to play a much bigger role in raising awareness of the law. The state also has an obligation to provide civic education to all.

The biggest challenge right now is lack of empowerment and knowledge.

We also need more public interest litigation, more and more people can come out for us to build a big case for the intersex.

So how did you get into the plight of the Intersex in Kenya?

My first encounter with the intersex was way back in India in my college days in a place called Pune where there was a colony of intersex individuals whom the locals would call hermaphrodites. I did not know beyond this.

It was until I saw a newspaper caption in the local dailies back in 2007 of an intersex individual in conflict with the law that got me thinking about how life must be for the intersex individuals. I started to think about the various statutes that limited the freedoms of these individuals.

The first was the Registration of Births and Deaths law. Each child born and registered is given an acknowledgment of births slip that only has two boxes for gender, male or female. This is the document that subsequently generates a Kenyan birth certificate. Without a birth certificate one cannot do much; it is a pre-requisite to school entry, to sit national exams, to getting a National ID, a passport, a voter’s card and so on.

I also looked at the Kenya Prisons Act that keeps male inmates separate from women inmates. If an intersex individual is taken to the male inmates there is a chance of abuse and if left with the women they would not fit in. They need a borstal institution that recognises that they are intersex individuals.

I also realised that intersex individuals have their freedom of movement infringed on, because of the challenges of you cant getting a passport or a driving licence.

Please shed some light on RM’s background?

RM was born and hidden from the public eye until he was a little older. The parents assigned him a male gender not at birth but slightly later. They waited but needed to pick a name.

In his early years in school he had challenges with basic things like which toilet to use without bringing ridicule on himself. In class he would be the brunt of cruel jokes, giggles and mockery and because of this he opted to drop out and isolate himself from others.

It is important to note that while RM identifies as a man, and was assigned a male gender and name he does not feel that this gender fits him.

RM could not even go through the crucial rite of passage that is male circumcision as the doctors did not have the necessary expertise to give him care, and this further isolated him.

There is simply no room for RM’s gender identity changes in our society he is a classic case of a third gender. RM simply wants legal recognition as being intersex and not have to be forced to conform to either male or female binaries.

Medical records supported that he is indeed intersex and while the judges embraced that he was discriminated on the basis of his sex this was not enough and the case was rejected.

So it seems to me that it is imperative for Kenyan legislation to provide markers for the Third Gender, as it seems to be catered for in the current Kenyan Constitution?

“If we look at the case of the South African constitution provision for the lack of discrimination on persons based sex in constitution further to this they have a statute called The Promotion of Equality and Prevention of Unfair Discrimination Act – PEPUDA an Anti Discrimination statute that has defined “sex” and it has clearly included intersexual persons.

Australia recognises intersex individuals. America is grappling with their legislation on the same. In fact there is a case in the USA where a man who had corrective surgery done as a child went ahead to sue the state, doctors and his parents for what he lost as a result of the surgery.

This can be a good grounds for case law where can seek to interrogate how to balance the right to body integrity of the child and parental consent in corrective surgery, keeping in mind the best interest of the child.

In Kenya, we can have an opportunity to deal with our own intersex individuals.

So what is your build up for a public litigation case in seeking legal recognition of the Third Gender?

Over time I have built the trust of eight intersex individuals who have come up to seek a legal space. Some of these individuals are minors.

I have come up with the following concept note for this case:

An Excerpt of the Concept for the Intersex Case:

“This is a case of an intersexual minor who is about three years old. I have the intention of filing a constitutional case around the child’s intersexuality and I am currently drafting the pleadings. The child’s hospital papers reflect the mark “?” on the sex slots.

This case is also guided or instructed by the Judgment in RM vs. The AG and Others wherein the judges made found that intersex persons are covered in the word sex in the Constitution.” – John Chigiti

It is my hope is that more intersex individuals come out to seek legal recognition. It is also my hope that organisations like the Kenya National Commission on Human Rights and other human rights organisations can be enjoined and support this case. We especially need to gather data on the intersex individuals to make a much stronger case.

Most intersex people live in hiding, watching and waiting to see if their issues will be addressed.

So basically the inclusion of the “Third gender Agenda” is inevitable and includes all Kenyans surely?

Yes, this is about me and you and the community at large. Intersex individuals are here, they are our children, our friends, we school with them, we work with them, doctors come across them in their line of duty and the churches everyone is involved. In the RM case it was surprising to have some negative input from the Kenya Christian lawyers* who criticised our efforts to have a third gender in spite knowing full well that these individuals were born this way.

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