Why Kenya's transgender citizens deserve better than forced strip searches and court battles
Overall, the Inter-Sex Persons Bill (2024) is inadequate in dealing with the gender identity issues that will arise as it puts a narrow focus on only one category defined by biological characteristics that cannot be exclusively categorised as female or male.
What you need to know:
- Justice Nyakundi's landmark ruling awarding Sh1m to a transgender woman subjected to degrading police treatment exposes how Kenya's piecemeal approach to gender identity laws is failing vulnerable citizens.
- The pending Intersex Persons Bill remains woefully inadequate, treating gender identity like a medical curiosity rather than a fundamental human right.
On August 12, Justice Reuben Nyakundi of the Eldoret High Court directed the state to enact a Transgender Protection Rights Act, in a judgement in favour of a petitioner who proved degrading treatment while in police custody and was awarded Sh1 million as damages.
The complainant was born male but grew up as a female with her identity documents indicating the same. When arrested by the police on June 14, 2019 at Moi Teaching and Referral Hospital, “she” was detained in the women’s section of the police station. A subsequent strip search revealed her male features leading to a court order for “gender determination”, done without her consent and the medical records made public. She petitioned for recognition as a transgender person.
The ruling builds onto earlier cases and raises the issue of self-identity. In 2010, a petitioner born intersex but brought up as a male was remanded in a men’s custodial facility. He alleged molestation by other inmates and claimed discrimination by not being issued a birth certificate, meaning that he could not obtain a national identity card hence was precluded from all services requiring the document. The court did not accept the discrimination claim but agreed on the cruel and degrading treatment.
In 2013, an applicant who had undergone hormonal therapy changed her name to designate that she preferred to be identified as female. The court agreed and ordered the Kenya National Examinations Council to amend her academic papers accordingly.
Then in 2014, a petitioner born intersex questioned why the hospital of birth entered a question mark under “sex” in her birth certificate, observing that this infringed on the right to legal recognition and dignity hence constituted degrading treatment. In effect, it raised the issue that, by recognising only males and females, the Registration of Births and Deaths Act was discriminatory. The petition was successful.
On March 9, 2018, the Kenya National Commission on Human Rights wrote to Kenya National Bureau of Statistics asking for inclusion of inter-sex as a category under the 2019 census, which was done, in the wake of the establishment of the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya on 26 May 2017.
Relevant laws
The recent judgement spotlights the Intersex Persons Bill 2014, which is pending debate and passage in the National Assembly. Articles 5 and 6 allow inter-sex persons to apply for revision of the sex marker in their birth certificates and national identity cards to “intersex”. Article 14, which provides that “a marriage involving an intersex person shall be celebrated in line with the Marriage Act”, may be problematic considering that the current law recognises only males and females.
The requirement for inter-sex persons to submit a medical report to the Registrar of Marriages, unless they possess “identification document clearly indicating their sex marker as being intersex” is arguably discriminatory as it imposes extra requirements which contravene the principle of equal treatment with binary persons.
Article 20 is also debatable. It entitles employers of intersex persons to a tax relief equivalent to 25 per cent of the total emoluments due to such employee. While this provision is affirmative, it raises questions of privacy, treatment of intersex persons as a curiosity and implication that this identity constitutes a disability. The article, thus, perpetuates the notion of otherness.
Article 7 obligates the government to “ensure development, review and implementation of relevant laws and programmes”. In the Second Schedule, the Bill specifies revisions required in several statutes but conspicuously omits the Political Parties Act, Marriage Act, Matrimonial Property Act, Children’s Act, Protection against Domestic Violence Act and Law of Succession Act, all of which have restrictive references to identity.
The reforms will also have to consider the constitutional principle that not more than two thirds of the same gender should occupy elective or appointive positions, which was informed by an assumption of only two identities.
Even in other regards, the Constitution has to be amended to eliminate restrictive language. For instance, Article 45 talks of people marrying from the opposite sex. How about if two inter-sex persons wish to enter into a marriage? The word “opposite” itself is intrinsically binary and biased. Article 56 on minorities and marginalised groups will also need to be revised to include inter-sex persons.
Overall, the Inter-Sex Persons Bill (2024) is inadequate in dealing with the gender identity issues that will arise as it puts a narrow focus on only one category defined by biological characteristics that cannot be exclusively categorised as female or male. Instead of passing such a narrow law, Parliament should think of a comprehensive Gender Identity Protection Bill to forestall the danger of reactive and miniscule pieces of legislation.
The writer is a lecturer in Gender and Development Studies at South Eastern Kenya University ([email protected])
