Gender Identity: Pressure mounts on Parliament to pass National Intersex Persons Bill, 2023

Human rights organisations are calling on Parliament to fast-track the enactment of the National Intersex Persons Bill, 2023, to establish laws that protect the rights and dignity of intersex people in Kenya.

Although the Bill was drafted in 2023, it remains stalled in Parliament, leaving intersex persons without legal recognition, adequate protection, or access to basic rights and services.

According to Cyrus Maweu, Deputy Director at the Kenya National Commission on Human Rights (KNCHR), intersex persons continue to face discrimination and systemic challenges, particularly in correctional facilities.

He cited a case involving an intersex inmate who was denied entry to Lang’ata Women’s Prison because officers were unsure whether to admit the individual to the male or female section. The person was eventually taken back to Kilimani Police Station.

“There have also been questions around how birth notification and other identification documents should indicate the sex of intersex children at birth,” Maweu added.

He spoke during a Strategic Litigation Workshop on the National Intersex Persons Bill (2023), which brought together intersex persons, parents of intersex children, human rights organisations and other stakeholders.

Despite legislative delays, Maweu acknowledged that Kenya has made notable progress in recognising intersex persons. The 2019 national census marked a milestone by deliberately collecting data on intersex people for the first time.

“For the first time in the history of this country, there was a deliberate effort to collect data on intersex persons. Kenya National Bureau of Statistics (KNBS) documented 1,524 intersex persons, and that sets a basis for acknowledgement of their existence in this country,” said Maweu.

He noted that intersex people still face challenges related to education and access to healthcare. Although the Children Act, 2022, provides protection for intersex children, there remains no comprehensive legal framework operationalising their rights as adults.

“One of the things that needs to be done is making everyone aware of the existence of intersex persons, the challenges that they go through. We cannot deny that they do exist and the best that we can do is to provide for them just like we provide for any other person within the country,” he added.

A constitutional petition filed in Migori by the World Post Changers Network seeks to compel the government to conduct public sensitisation on the Bill and its importance, as well as to push for its enactment.

“We are waiting on the enactment of the Bill by the Parliament so that the counties will have a law to anchor programs on intersex persons at the county level,” said Arsenekah Ezekiel, executive director of World Post Changers Network.

Ezekiel noted that intersex persons continue to face stigma and discrimination, which force many to drop out of school or avoid public and economic activities.

“Because of confusion around their identity, many intersex people struggle to get jobs, as employers often don’t know whether to classify them as male or female,” he said.

Once enacted, the Bill is expected to provide legal protection for intersex persons, including access to healthcare, education, and respect for their human dignity.

“The Commission has already met with the Parliamentary Committee on Justice and Legal Affairs to get their buy-in so that we can have this Bill see the light of day,” said Laban Cheruiyot, a deputy director at KNCHR.

The push for the Bill comes after the lapse of the Intersex Persons Implementation and Coordination Committee’s mandate in August last year.

Cheruiyot added that the taskforce wrote to the Attorney General for an extension of their mandate so as to implement their recommendations on intersex persons.

Some of the recommendations findings by the taskforce include enumeration of intersex persons in the country, proper definition of an intersex person and a legal reform to put in place laws to ensure protection of intersex people.

“The Children's Act of 2022 also is a product of the Intersex Persons Taskforce, which has seen the light of day with the recognition of the rights of intersex children in our country,” Cheruiyot said.

Mwese Kibebe, advocacy officer at World Post Changers Network, added that myths and misconceptions around intersex persons have caused attacks on intersex persons and their relatives.