Bill: Intersex suspects, inmates to have special cells

A police officer has told the Kenya National Commission on Human Rights (KNCHR) of how he influenced a complainant to withdraw a case from court when a suspect could not be locked in prison because of ‘gender confusion’.

The officer said he participated in terminating the case to avoid other legal battles that would have affected his career. With his colleagues, he approached the complainant and persuaded him to withdraw the case when the suspect, who claimed to be intersex, demanded that s/he be held in a special cell.

A magistrate had directed that the accused person be remanded as the case went on. However, the correctional facility had cells for males and females, none for an intersex person.

The magistrate did not know that the suspect was of a different gender and did not bother to issue a directive for the person to be taken to a special correctional facility.

According KNCHR, which has drafted a bill to help the group, an intersex person is a child or adult with a congenital condition in which the biological sex characteristics cannot be exclusively categorised in the common gender binary of female or male, given inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns apparent before birth, at birth, in childhood, puberty or adulthood.

As the suspect was being taken to prison, s/he raised an objection and told police officers to take her/him to a different place where s/he would be comfortable and away from harm. “We were caught between a rock and a hard place, as we had no idea how to handle the case. The suspect said ‘his’ rights would be violated if ‘he’ would have been taken to either male or female cell," the officer said.

Potential civil suit

The security officers were afraid of being sued and opted to take the suspect to the police station. But still, the suspect could not be locked in a cell for males or females. "We decided to put ‘him’ in a different room to act as a cell. However, all cells are gazetted, so this was against the law."

The officer later decided to seek help from the complainant to withdraw his case to avoid confusion on where the suspect should be taken. The challenges are among issues the Intersex Persons Bill, 2023, seeks to address. Should the suspect have been taken to prison, warders would have put him or her in either male or female cell. But either way, it would have brought confusion on the suspect’s gender.

Also read: Two genders? No, we should recognise the three in Kenya

In the Bill, besides amending at least 15 laws that will enable intersex persons to be identified and recognised, it will provide other opportunities for the group as they engage in different activities, especially when seeking government services, including registration.

The Bill requires an intersex person to be entitled to protection and respect in relation to all fundamental rights and freedom during arrest, trial and determination. It also requires a court to consider whether one is intersex when making orders during trials and detention.

The considerations include a person's medical and psychosocial needs and the ability of any person or institution to provide special care or medical attention, which may be required for an intersex person’s wellbeing.

The Bill further states that the Cabinet Secretary responsible for correctional services shall, within six months of the commencement of the Act, put in place measures to ensure intersex persons are held in separate facilities. It means should the bill be passed, a police station needs to have three groups of cells and a prison should be classified as either being for male, female or intersex.

One of the reasons for having the Bill is to enable intersex persons to be recognised and given freedom to engage in activities just like other people.