2017 — The Proposal of The Intersex Model Law, South Africa
The Intersex Model Law, proposed in 2017, was a draft law that the Centre for Human Rights at the University of Pretoria put together with the aim of protecting the rights and well-being of intersex individuals. The law was developed in response to historical injustices faced by intersex individuals, therefore crucial for addressing issues such as non-consensual medical interventions, legal recognition, and anti-discrimination protections which are central for the dignity and autonomy of intersex people.
Efforts towards tabling the Model Law began with the first consultative meeting held by the Centre for Human Rights in South Africa to validate the draft Model Law on intersex persons. The meeting was attended by intersex rights activists from South Africa representing organisations including Iranti, AIDS Rights Alliance of Southern Africa (ARASA), Open Society Initiative for Southern Africa (OSISA), Transgender & Intersex Africa (TIA) and OUT Well-Being, as well as Justice John Chigiti from Kenya. According to a statement released by the Centre for Human Rights on 26 April 2017,
“there was a wide consensus during the consultative meeting on the need for states to enact laws and policies, review existing policies and repeal any laws to ensure that the rights of intersex persons are protected.”
The Centre for Human Rights planned to eventually table the Intersex Model Law at the African Commission on Human and Peoples’ Rights (ACHPR), specifically aiming for the Law to be used as a tool for advocating for law reform and stronger legal recognition and protection of fundamental rights and freedoms of intersex persons across Africa. Some of the legislative provisions in the Model Law included prohibition of all medical unnecessary surgeries and procedures on intersex children, prohibition discrimination of intersex person in all spheres of life, investigating and monitoring human rights violations against intersex persons through National Human Rights Institutions, ensuring that victims of such human rights violations have access to justice and some form of reparations, and providing easy administrative processes to make it easy for intersex persons to amend name and sex on a birth certificate or any other legal document.
SIPD Uganda held a panel discussion at the Changing Faces Changing Spaces conference in Kenya 2017, deliberating on the benefits of the draft Intersex Model Law, and panelists articulately expounded on why the law would be important. One of the panelists declared that,
“Intersex children and people cannot afford to continue to be mistreated and thrown to extreme margins of society and this is why the model law would be instrumental in pushing our advocacy for shifts in language from pathological to rights based terms and subsequent shifts in lived realities through an Africa-wide resolution in the short term and National legal in the long run. Whether via tools such as the law or policy the ultimate goal is to change societal attitudes and create a safe and just environment for intersex children and people in every sphere of life. So we are very keen on short term gains like improved living realities as much as long term gains such as national and continental legal reforms.”
The second consultative meeting was held in Niamey, Niger at the NGO Forum preceding the 60th Ordinary Session of the ACHPR. During this session, the commissioners advised that the activists consider tabling a resolution to the Commission instead of proposing it as a law. The difference between a Model Law and a Resolution is not something you can refer to as insignificant, as they serve distinct purposes and have different impacts. A Model Law provides a detailed legal framework intended to guide or influence national legislation, making them more practical tools for legislative change while Resolutions, on the other hand, are formal expressions of opinion, recommendations, or policy positions. In this case, a Resolution was recommended because it would be more flexible, address a wide range of issues and easier to gain consensus on. Also, a Resolution could be passed more quickly than a Model Law, a difference which was crucial, especially at a time when the anti-gender movements were on the rise. The Resolution could also be a way to shape the discourse or put an issue on the agenda for further action including the possible future development of a model law or other binding agreements.
Countries might agree on broad principles expressed in a Resolution, making it influential and welcomed more openly than a Model Law in most African countries and yet still raise important visibility and help these countries set their own agendas for human rights protections for their native intersex people.
The ACHPR had previously adopted Resolution 275 in 2014, a resolution on the protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity, a great win for the LGBTIQ community. However, the resolution did not specifically mention intersex persons or sex characteristics, which is why it was very important to lobby for a resolution that would specifically speak to the intersex rights in Africa. All of this combined, prompted advocacy work which later facilitated the adoption of the Resolution on the promotion and protection of the rights of intersex persons in Africa – ACHPR/Res.552 (LXXIV) 2023.
The journey towards securing the rights of intersex individuals is far from over, but collaborative efforts between activists, legal experts and organisations across Africa represent a powerful force for change. It is crucial that the momentum for intersex rights be maintained. Advocates and allies must continue to push for both short-term victories and long-term reforms, ensuring that the rights of intersex persons are not only recognised but actively protected. The path forward will require persistence, solidarity and innovative strategies, but the goal remains clear: a future where intersex persons can live with dignity, free from discrimination and harm.
Article researched and written by our content contributor, Delphine Barigye
