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Therefore, the definition should highlight this distinction between transgender persons and intersex persons enabling them to exercise the rights which they are entitled to. Some persons born or living with intersex traits can live with a non-binary identity or may choose to live as gender fluid persons. The Bill fails to account for these possibilities. Neither does it provide for the definition of terms such as gender identity, gender expression and sex characteristics.

The Bill doesn’t say much about discrimination against intersex persons. Intersex conditions are termed in derogatory terms even by medical professionals. To address this, the Bill should have included a provision directing medical professionals to ensure that intersex traits are not characterised as “disorders of sex development”. Intersex traits should not be considered as genetic defects/ disorders, and terms like ‘gender dysphoria’ should be used to characterise them.

Unnecessary medical procedures

As per court-based jurisprudence, medical procedures are not a necessity for self-identification. Still, the Union Health Ministry has admitted that medical procedure including sex reassignment surgeries are being performed on intersex children. The Ministry has given the justification that this is only done after a thorough assessment of the child, with the help of appropriate diagnostic tests and only after taking a written consent of the patient/guardian. When this response was presented before the Madras High Court in Arunkumar, the court slammed the Health Ministry for its poor understanding of consent rights and imposed a ban on the practice of sex reassignment surgeries on intersex infants/children. The Bill fails to protect intersex persons from unnecessary medical intervention.

World over, the discourse around gender and sexuality has evolved a great deal in the last decade. However, the current legislative discourse on this issue suffers from lack of foundational understanding. Intersex persons are particularly vulnerable and experience barriers in access to education, employment, marriage, etc. In its current form, the Bill turns back the clock on decades of positive change brought about by intersex activists.

Prashant Singh is an advocate at the Supreme Court of India

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Intersex and transgender population will get free medical services should a proposal by a task force formed by the Attorney General is adopted by the government.

The report presented to the AG also says the government should give free medical insurance health cover under the National Health Insurance Fund (NHIF) to intersex persons.

Sex reassignment surgery for intersex usually involves a series of operations that take place over several months or years. Patients can choose to have some or all of the surgeries.

To comprehend the overall transgender surgery cost, one must understand that ‘sex reassignment’ is a very extensive process. The cost of a transgender person’s transition can vary widely, and pricing information is often not available.

The services including the fee include potential costs for anesthesia, hospital stay and each of the potential surgeries that someone transitioning from one gender to the other.

Most patients pay for the surgeries from their pocket, it is very rare for insurance to cover the procedures.

THIRD GENDER

However, if the recommendations are adopted, the government will have to provide all the services.

However, the surgeries can only be carried out in case of a medical emergency and this will be done on informed consent by the government.

The task force, chaired by Mbage Njuguna Ng’ang’a has recommended that the ministry of health will work with other regulatory agencies towards the protection against unintentional medical intervention and ensure effective remedy for persons otherwise affected.

The term intersex describes a person born with sex characteristics – genitalia, gonads, hormones and chromosomes that do not match the typical male or typical female body. As such, there has been a push for Kenya to create laws that recognise intersex as the third gender.

According to the United Nations, approximately 1.7 percent of newborn babies across the world can be classified as intersex.

Based on the UNHCR Free & Equal global campaign statistics, as per Kenya’s current population of 47,848,479 million, intersex persons can be estimated at between 23,925 and 813,425 nationally.

MEDICAL INTERVENTION

The number of intersex persons in Kenya has also been documented by the Child Rights International Network (CRIN), which estimates that 20,000 of Kenyans alive are born intersex though it is difficult to tell the number of intersex individuals in Kenya as many seek anonymity due to stigma while some are unaware of their state.

It is not clear whether the government will take care of medical interventions of about 20,000 intersex Kenyans.

The Independent Policing Oversight Authority (Ipoa) also wants intersex cells established in police premises for their rights to be protected.

Ipoa commissioner Doreen Muthaura said the proposal to create these sections in cells and borstal institutions was part of a task force report on the matter.

Commissioner Walter Ogony said the move will help address cases of sodomy in police custody and incidents of inmates tormenting each other.

“The confinement rooms should also have cameras and be fitted with alarm bells so they can raise alarm if in danger,” Dr Ogony said during a breakfast meeting of the Ipoa and the Kenya Editors Guild (KEG) at Intercontinental Hotel in Nairobi.Transgender activist Audrey Mbugua outside Eldoret law courts on June 27, 2019.

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