Following the overturning of the Anti-Homosexuality Act of 2014, the Anti-Homosexuality Act, 2023 was signed into law on 26 May 2023.

The Act prescribes life imprisonment for sex between two people of the same biological sex and the death penalty for “aggravated homosexuality”. The latter offence includes “serial offenders”, same-sex rape, sex in a position of authority or procured by intimidation, sex with persons older than seventy-five, sex with the disabled and mentally ill, and homosexual acts committed by a person with a previous conviction of homosexuality. Further, under its provisions, the promotion (including normalisation) of homosexuality is punishable by imprisonment for up to 20 years and fines. Read more.

Tranz Network Uganda‘s Williams Apako speaks about the impact on trans people of this Act and the work that he has done:

On 21 December 2022, a Tunisian trans woman and gay man were convicted of homosexuality under Article 230 of the Tunisian Penal Code and were sentenced to serve prison time of 1 year and 3 years, respectively.

Amnesty International’s Deputy Director for Middle East and North Africa, Amna Guellali said,

“It is appalling and unacceptable that Tunisia’s judiciary continues to interfere in people’s private lives by authorizing police to conduct arbitrary home raids permitting the prosecution of individuals on allegations related to their sexual orientation and identity. The Nabeul Appeal court should take this opportunity to repair the damage done by past violations, overturning the sentence and acquitting them would be a step in the right direction.

Article 230 which criminalizes same-sex activity is deeply homophobic and must be urgently removed from Tunisia’s Penal Code. The government should order an immediate halt of arrests and prosecutions in relation to this provision.”

This sentence was appealed on 20 February 2023 at the Nabeul Appeal Court in Tunisia. Read more.

Context

In Tunisia, same-sex sexual activity is prohibited under the Penal Code 1913, which criminalises acts of ‘sodomy’. The sentence for someone convicted of same-sex sexual activity is a maximum of three years’ imprisonment. (Source: Human Dignity Trust). Between September 2024 and 31 January 2025, 81 LGBTQIA+ people, mainly gay men and trans women, were arrested and unjustly prosecuted. (Source: Amnesty International).

In 2018, Heinrich-Böll-Stiftung published a report on trans rights in Tunisia by Dr Habib Nouisser, titled ‘Sex Change in Tunisia: When Law Confiscates Identities.’ 

Voted into Kenyan law on the 26th of July 2022, section 21 of The Children Act, 2022 legally recognises intersex children, ensuring their right to appropriate documentation and protection. Section 21 of the Act states

“An intersex child shall have the right to be treated with dignity, and to be accorded appropriate medical treatment, special care, education, training and consideration as a special need category in social protection services.”

The Act

• ensures intersex children can access necessary services, including healthcare, education, and social security
• recognises the existence and rights of intersex children in order to ensure that they are not excluded from legal recognition and protection
• mandates measures and steps for correct documentation and registration of intersex people, including their right to amend their sex markers on official documents
• promotes social justice, national values and principles of governance to ensure intersex children have the right to equality and inclusion as outlined in the Kenyan Constitution
• aims to end historical discrimination and ensure that intersex children are treated the same as other children.

The Act defines the intersex child as

“as one with congenital conditions where biological sex characteristics cannot be exclusively categorized as female or male.”

Kenyan intersex, trans and gender. non-conforming advocacy organisation, Jinsiangu, states in this document, that the Act’s definition of intersex children has

“offered a safe space to ensure that the status of being intersex does not deprive an intersex person of their constitutionally guaranteed rights under the Bill of Rights.”

The Act also states that

“An intersex child shall have the right to be treated with dignity, and to
be accorded appropriate medical treatment, special care, education, training and consideration as a special need category in social protection services.”

Jinsiangu writes that

“This Section generates a very huge strides towards the realization, fulfilment, protection and promotion of the standards of living of these vulnerable children. They hitherto suffered from discrimination and denial of access to education and health offending their right to dignity. They can now glow and smile given that their status and dignity has been elevated to that of humanity.”

Jinsiangu also writes that the provisions in the Act

“allow for the long-awaited registration framework for intersex children within the Birth and Deaths Registration Act alongside boys and girls. This simply means that the law accords them recognition and they are now able to enjoy Constitutionally guaranteed rights as any other child and citizen of the republic of Kenya. What a milestone towards the realization of social justice. It is a first in Africa.”

Our interview with Frankie Kibagendi, Kenyan politician and intersex rights activist

In this clip from our interview on the 23rd of May 2025 with Kenyan Frankie Kibagendi, intersex activist and politician, and Director of Intersex Kenya Advocacy and Education (I.K.E.A.), speaks about the Act and the situation for intersex people in Kenya:

Watch the full interview with Frankie:

To understand more about intersex legal rights and failures of the law in Kenya, read our review of the book, Intersex Persons & the Law in Kenya

Intersex Persons & the Law in Kenya by John Chigiti SC (2021): A Review

Intersex persons in Kenya continue to experience systemic discrimination, legal invisibility, and persistent violations of fundamental rights. Drawing on the analysis presented by Chigiti (2021) in Intersex Persons and the Law in Kenya, this article synthesizes the author’s major themes across law, medicine, social systems, and policy. The discussion illustrates that although Kenya’s Constitution guarantees equality, dignity, and non-discrimination for all persons, the absence of explicit recognition of intersex identity structurally prevents full realisation of rights. Reforms in documentation, healthcare, access to information, family law, and education are urgently needed to align Kenya’s legal and policy environment with international human-rights principles.

Introduction

Intersex persons born with natural variations in sex characteristics that do not fit typical binary definitions of male or female remain socially marginalised and administratively invisible in Kenya. Chigiti demonstrates that while awareness of intersex identity is increasing globally, Kenya’s legal and medical systems remain ill-equipped to address the lived realities of this population. This article organises the core themes emerging from Chigiti’s text into a rigorous, thematic analysis to guide legal scholarship, advocacy, and policy design.

Conceptual and Medical Foundations

The conceptual and medical understanding of intersex persons forms the intellectual foundation of John Chigiti’s argument in Intersex Persons and the Law in Kenya. He begins by revisiting the definition of intersex, historically known under the stigmatising term “hermaphrodite.” As medical knowledge evolved, such terminology gave way to scientifically grounded and human-rights-based language “intersex” or “persons with differences in sex development (DSD).” These terms describe individuals born with variations in chromosomal, gonadal, or anatomical sex characteristics that do not fit typical binary definitions of male or female.

Chigiti identifies multiple biological bases for intersex variation, including chromosomal patterns (e.g., 47XXY; Klinefelter syndrome; 47XXX; Trisomy X), gonadal differences (presence of both ovarian and testicular tissue), and hormonal atypicalities (such as androgen insensitivity syndrome or congenital adrenal hyperplasia). These medical distinctions, he argues, demonstrate that intersex is not an anomaly but a naturally occurring human variation that is present in approximately 1.7% of the world’s population, according to the Office of the United Nations High Commissioner for Human Rights (OHCHR).

From a biomedical perspective, Chigiti underscores the importance of genetic and chromosomal evaluation in determining an intersex condition. This involves understanding the genetic composition (heredity), where chromosomes carry the physical units of heredity known as genes. The book clarifies that each human cell normally contains 23 pairs of chromosomes, but variations in these pairs can produce different expressions of sex traits. For example, atypical configurations in sex chromosomes (such as XXY or XO) may lead to non-binary sexual differentiation.

Chigiti also references international legal definitions to enrich the conceptual clarity. The Maltese Gender Identity, Gender Expression, and Sex Characteristics Act defines “sex characteristics” as encompassing chromosomal, gonadal, and anatomical features including reproductive organs, genitalia, hormonal structures, and secondary traits like muscle mass, hair distribution, and breasts. This broader framing moves beyond mere physical appearance and emphasizes biological diversity as part of human variation. The California Senate Bill 225 and the South African Alteration of Sex Description and Sex Status Act similarly recognize that intersex persons exhibit variations in physical traits such as genitalia, hormone function, and chromosome patterns that deviate from stereotypical male-female norms.

Importantly, Chigiti cautions against superficial or appearance-based judgments. Physical features such as a deep voice in women or softer features in men do not constitute evidence of intersex status. A definitive classification must be based on medical examination of chromosomal, gonadal, and hormonal structure by a competent medical practitioner. The Persons Deprived of Liberty Act (2014) in Kenya explicitly adopts this medical standard, defining an intersex person as “a person certified by a competent medical practitioner to have both male and female reproductive organs.” This legal definition anchors intersex identity in verified medical evidence rather than social perception.

Chigiti thus establishes a dual conceptual framework: medical and legal. The medical framework recognizes intersex as a spectrum of biological diversity requiring sensitivity and scientific accuracy, while the legal framework demands recognition and protection of such individuals within Kenya’s constitutional and statutory systems. He insists that law and medicine must converge to ensure dignity, autonomy, and accurate identification. The medical field, therefore, carries not only a diagnostic function but also an ethical and human-rights obligation to refrain from coercive “normalising” surgeries and to support informed decision-making rooted in bodily autonomy and consent.

Stigma, Culture and Discrimination

Stigma surrounding intersex persons in Kenya is deeply rooted in cultural beliefs, religious narratives, and social norms that privilege binary understandings of sex. In many communities, intersex birth is not merely misunderstood; it is feared. Local languages contain derogatory terms such as huntha (Kiswahili), kiugu (Kikuyu), and malinda (Kikamba), reflecting long-standing othering of bodies perceived as sexually atypical. These linguistic patterns reinforce the perception that intersex traits are unnatural or shameful, encouraging secrecy and silence within families. Fear of public shame leads many parents to conceal affected children, thereby denying them opportunities for health care, social participation, and early identity formation. Where physical differences manifest during adolescence rather than infancy, stigma often intensifies, as peers and communities react to visible divergence from gender expectations exposing intersex adolescents to ridicule, isolation, and emotional trauma.

This stigma is exacerbated by cultural narratives that view intersex children as omens, curses, or spiritual anomalies. In extreme cases, families may resort to infanticide, abandonment, or coercive “normalization” practices in an attempt to erase perceived deformity. Such reactions are reinforced by a lack of awareness and the dominant societal insistence on male/female classification. Schools and hospitals, operating within rigid gendered systems, inadvertently perpetuate discrimination by forcing children into binary categories. Administrative institutions, including registration authorities, contribute to indirect discrimination by refusing to issue documents when sex cannot be readily categorized thereby excluding intersex children from schooling, social protection, and later, employment. Chigiti underscores that such bureaucratic exclusion constitutes structural discrimination because policies that appear neutral in text disadvantage intersex persons in practice.

Legal discourse demonstrates the depth of this systemic exclusion. In Baby A (Suing through the Mother E.A.) v Attorney General & 6 Others, the court declined to recognise intersex as a distinct sex category, holding that “sex” under the Constitution referred solely to male and female. This reinforced the legal invisibility of intersex persons and signalled judicial reluctance to depart from binary frameworks. Although the Persons Deprived of Liberty Act acknowledges intersex through a medicalized definition, it does not dismantle broader discriminatory systems. Consequently, intersex persons remain vulnerable to both direct discrimination such as bullying, denial of services, and forced medical procedures and indirect discrimination through policies structured around binary assumptions. The cumulative effect of stigma, cultural misconception, and legal marginalization produces multidimensional exclusion that compromises fundamental rights to dignity, equality, identity, and social belonging.

Sex, Gender and Legal Classification

The distinction between sex and gender is central to understanding the legal challenges intersex persons face in Kenya. Sex is primarily a biological construct based on chromosomes, gonads, hormones, and genital anatomy while gender refers to socially constructed roles, identities, and expectations assigned to individuals. Despite this conceptual separation, Kenyan legal and administrative systems continue to treat sex and gender as synonymous, maintaining a rigid male–female framework that excludes intersex identities. Chigiti emphasizes that this conflation denies the biological complexity of intersex persons and forces their lived realities into categories that do not reflect their physiology, identity, or social experience. Such binary rigidity erases intersex existence at the institutional level, reinforcing both invisibility and exclusion from legal and social systems.

At the core of these challenges is the requirement legally and administratively that every individual be categorized as either male or female at birth. Birth registration forms, school records, hospital files, and identification documents mandate binary sex classification, leaving no room for intersex variations. Because many intersex traits are not visible at birth or are misunderstood by medical personnel, sex assignment is often arbitrary, based solely on external genital appearance rather than chromosomal or gonadal composition. These early decisions may conflict with the individual’s later physical development or personal identity, creating lifelong inconsistencies between documentation and lived experience. As intersex persons grow, these mismatches complicate access to schooling, healthcare, employment, and travel, illustrating how binary registration systems create legal and social instability.

The judicial system has reinforced this binary view. In Baby A (Suing through the Mother E.A.) v Attorney General & 6 Others, the High Court held that “sex” within constitutional provisions referred only to male and female, dismissing attempts to argue for broader interpretation that would include intersex. The Court noted that expanding the definition of sex fell outside judicial authority and should instead be addressed by Parliament. This decision crystallised intersex exclusion within constitutional interpretation and signalled the judiciary’s hesitation to challenge cultural and legislative norms. Consequently, intersex persons remain without explicit recognition under Kenyan law, leaving them vulnerable to discrimination and dependent on fragmented statutory protections. Chigiti concludes that achieving meaningful recognition requires legislative reform that acknowledges biological diversity and ensures that intersex persons are fully protected within Kenya’s constitutional and legal frameworks.

Identity, Documentation and Legal Personhood

Identity documentation is a primary gateway to legal personhood in Kenya, yet intersex persons routinely encounter exclusion because existing systems recognise only two sex categories: male or female. Chigiti underscores that birth certificates, national identity cards, and passports are not merely administrative tools but instruments that affirm an individual’s legal existence, belonging, and citizenship. Without them, a person’s ability to participate in society is profoundly restricted. For intersex children, the challenge emerges immediately at birth. Medical staff and civil registration officers, operating within a binary framework, often compel parents to select a sex designation despite uncertainty, resulting in assignments based solely on outward genital appearance rather than comprehensive medical assessment. This early classification which is frequently inaccurate imposes an identity that may later conflict with the individual’s physical development or self-understanding, thereby undermining their autonomy and personal narrative.

Because legal records form the basis for nearly all entitlements, inaccurate or absent documentation triggers a cascade of exclusion. Intersex individuals who cannot obtain accurate birth certificates or national IDs face barriers in accessing education, healthcare, employment, housing, and voting rights. For school enrolment, birth certificates are compulsory; those without them may be denied admission or forced into constant explanation of their identity. In healthcare settings, identity cards are essential for insurance coverage and continuity of care. Lack of documentation can therefore undermine access to diagnosis, treatment, and psychological support. Adults with mismatched records frequently encounter suspicion, humiliation, and bureaucratic hostility when attempting to update their sex markers, underscoring the intertwined nature of documentation and social acceptance.

Although Kenya’s Access to Information Act and related legal provisions allow for correction of personal records, the process remains complex, costly, and poorly understood. Individuals often require medical certification, affidavits, and legal representation to effect changes thus placing rectification out of reach for most intersex persons. This administrative burden constitutes a form of indirect discrimination: while the procedures apply to all, they disproportionately disadvantage those whose identities challenge binary norms. Chigiti argues that the absence of explicit legislative guidance on intersex documentation leaves individuals dependent on discretionary decisions by civil servants and courts, leading to inconsistency and vulnerability. He emphasizes that recognition is not symbolic; it is a prerequisite for enjoying fundamental rights and freedoms. Achieving meaningful reform therefore demands that Kenya adopt clear legal provisions enabling flexible sex/gender markers, streamlined correction processes, and non-discriminatory recognition of intersex status to ensure full legal personhood.

Parental Dilemmas and Child Protection

The birth of an intersex child in Kenya often triggers confusion, fear, and emotional turmoil within the family, largely because intersex variations are poorly understood and highly stigmatized. Chigiti explains that parents are typically thrust into a decision-making space without sufficient medical, psychological, or social support. In many cases, families receive inconsistent or superficial medical explanations, leaving them uncertain about their child’s biological status and future development. This uncertainty can generate guilt, shame, or internalized blame, particularly where cultural or religious interpretations frame intersex traits as curses, misfortunes, or aberrations. The desire to protect the child from ridicule, combined with the pressure to conform to binary expectations, often drives parents into secrecy, resulting in delayed health care, insufficient emotional bonding, and isolation of the child from community life.

Within this context of inadequate guidance, parents frequently face intense pressure to authorise early genital “normalisation” surgeries. These procedures are typically presented as corrective measures intended to align the child’s body with male or female norms, even when not medically necessary. Chigiti emphasizes that these decisions are often made before parents fully understand their long-term implications. Without access to balanced information regarding physical risks, psychological impact, and ethical concerns, families may consent to interventions that compromise bodily autonomy, future reproductive function, and the child’s self-determination. Moreover, because intersex traits may involve developmental changes during puberty, surgical decisions made in infancy can produce lifelong distress when the child’s physical or psychological sex diverges from the assigned identity. As the child grows, undoing earlier surgical or legal decisions becomes complex, expensive, and emotionally destabilizing.

These challenges underscore the need for strong child-protection frameworks grounded in the best interests of the child, as recognised under Article 53 of the Constitution and the Children Act. Chigiti argues that societal shame and misinformation can lead to harmful practices, including abandonment, infanticide, or long-term concealment. Ensuring child welfare therefore requires active State intervention to prevent abuse, promote family counselling, and regulate medical decision-making. Protecting intersex children involves guaranteeing access to psychosocial support, delaying non-essential surgeries until the child is mature enough to participate in decisions, and preventing discrimination in healthcare, education, and documentation processes. Child-focused protection mechanisms must affirm dignity and safety while empowering caregivers with accurate information. Chigiti concludes that safeguarding intersex children requires shifting from secrecy and coercive conformity toward transparency, informed consent, and holistic support systems that respect bodily integrity and human rights.

Healthcare, Bodily Autonomy and Post-Surgery Harm

Healthcare access for intersex persons is deeply intertwined with issues of bodily autonomy, dignity, and informed consent. Chigiti observes that the medical system in Kenya often approaches intersex variations through a pathological lens, prioritizing the “correction” of bodies rather than understanding or supporting their natural diversity. From infancy, intersex individuals are subjected to medical examinations that frequently frame their anatomy as problematic or abnormal, reinforcing stigma and legitimizing invasive intervention. While healthcare professionals have an important role in diagnosing intersex traits, Chigiti stresses that their responsibility extends beyond clinical assessment to the ethical obligation of respecting autonomy and providing transparent, non-coercive information to families. Effective care must include psychological support for both child and caregivers, avoiding fear-based narratives that push families toward unnecessary medical decisions.

A central concern in this thematic area is the widespread practice of non-consensual “normalisation” surgeries performed on intersex infants and young children. These surgeries, often conducted for social rather than medical necessity; aim to modify genitalia to resemble typical male or female forms. Chigiti emphasizes that such interventions are irreversible and frequently result in diminished sexual function, chronic pain, scarring, reduced fertility, and psychological trauma. Many intersex youth grow up without being informed of the procedures performed on them, only discovering later that their anatomy was altered without their consent. Because these surgeries are performed before the child can participate in decision-making, they are incompatible with key human rights principles, including bodily integrity, informed consent, and freedom from degrading treatment. The absence of long-term medical follow-up exacerbates the problem, leaving individuals with ongoing complications and little institutional support.

The long-term consequences of these surgeries extend beyond physical harm. Chigiti documents how repeated medical interventions, failed reconstructions, and ongoing infections frequently push individuals into cycles of hospitalization and social withdrawal. Some are left incontinent and dependent on diapers; others face repeated surgical attempts to “fix” initial procedures, compounding trauma. The social stigma attached to these outcomes often prevents individuals from seeking further care, driving them into silence and isolation. Emotional harm including shame, depression, and loss of identity is pervasive, particularly when physical development during puberty conflicts with the sex assigned surgically at birth. These challenges highlight the urgent need for a patient-centered, rights-based healthcare model in which medical treatment respects bodily autonomy, defers irreversible intervention until informed consent is possible, and provides psychosocial support to individuals and families. Chigiti concludes that reform in Kenya’s health sector is essential to prevent further harm: healthcare workers must be sensitized, medical guidelines must be revised to prohibit medically unnecessary surgeries, and intersex persons must be guaranteed access to comprehensive, non-discriminatory care throughout their lives.

Education and Social Inclusion

Education is a transformative right that enables individuals to acquire skills, build confidence, and participate meaningfully in society. For intersex children in Kenya, however, access to education is often impeded by structural, social, and administrative barriers. Chigiti explains that the earliest hurdle typically arises at the point of school enrolment, where a birth certificate is required. Because many intersex children are either mis-registered or not registered at all due to uncertainty around sex classification, they may be denied admission or delayed in beginning school. Even when enrolled, school records designed around a rigid male–female binary force children into sex categories that may not align with their bodies or identity. This administrative misalignment contributes to confusion, emotional distress, and a sense of alienation, demonstrating how exclusion is built into the very structure of the education system.

Within the school environment, intersex learners face heightened vulnerability to bullying, ridicule, and physical or psychological harassment from peers and sometimes even from teachers. Puberty often magnifies this vulnerability when physical development diverges visibly from male or female norms, exposing children to stigma and unwanted questioning. Schools, which typically lack guidelines for supporting intersex students, may react with punitive or exclusionary measures rather than compassion and protection. In particular, the strict division of sanitation and dormitory spaces by sex poses serious risks. Intersex learners may be forced into facilities that are unsafe or inappropriate, or they may be denied accommodation altogether in boarding schools—pushing many out of schooling prematurely. Weak institutional awareness compounds these harms, as educators are rarely trained to recognize intersex realities or respond sensitively to students’ needs.

The repeated trauma of discrimination contributes to higher dropout rates among intersex learners and increases the likelihood of long-term social marginalization. Chigiti stresses that exclusion from education closes pathways to social mobility, economic opportunity, and legal consciousness reproducing cycles of vulnerability. Thus, social inclusion within the education system is not simply a matter of physical access but of meaningful participation in a safe, affirming environment. To achieve this, schools must adopt comprehensive inclusion measures: sensitizing teachers and staff, protecting students through robust anti-bullying policies, and ensuring access to gender-neutral facilities. Curricula should reflect human diversity, promoting understanding and dismantling stereotypes from an early age. These measures must be coupled with nationwide awareness campaigns and policy reforms that affirm every learner’s dignity. Chigiti argues that centering intersex learners’ rights in educational policy is essential to ensuring that Kenya’s constitutional promise of equality becomes a lived reality, fostering a society in which all children regardless of sex characteristics can learn, grow, and thrive.

Access to Information

Access to information is a foundational right that enables individuals to understand themselves, make informed decisions, and seek the protection of the law. For intersex persons in Kenya, this right is especially critical because much of the information related to their biological status, medical history, and early-life interventions is often withheld, obscured, or inaccessible. Chigiti underscores that Article 35 of the Constitution guarantees every citizen the right to access information held by the State and by others where necessary for the exercise or protection of rights. This includes medical records documenting diagnosis, surgical procedures, hormone treatments, or decisions made on a child’s behalf. Without access to such information, intersex persons may be deprived of the ability to understand their identities, engage in informed health choices, or challenge violations committed against them in their early years. Thus, access to information becomes a gateway to bodily autonomy, legal clarity, and psychological affirmation.

Despite legal safeguards particularly the Access to Information Act (2016) intersex persons frequently encounter barriers when attempting to retrieve important personal records. Healthcare institutions, guardians, or civil authorities may refuse disclosure due to ignorance, stigma, or paternalistic beliefs that such information is too sensitive or harmful. In many cases, intersex individuals only learn in adolescence or adulthood that they underwent genital surgeries as infants or were subjected to hormonal treatments without consent. Such delayed discovery can trigger profound emotional distress and a sense of betrayal. These barriers are compounded by administrative challenges, including poorly digitized records, discretionary decision-making by officials, and lack of awareness about legal entitlements. Even when individuals attempt to correct inaccurate details such as sex markers on identification documents, the procedures are cumbersome, expensive, and poorly publicized, hindering their ability to secure accurate documentation and exercise full citizenship.

Chigiti argues that ensuring meaningful access to information requires more than legislative recognition; it demands proactive institutional support. Hospitals and civil registration offices must develop protocols that guarantee timely release of medical and legal records, with specific provisions for intersex persons. State agencies and service providers must be trained to understand and uphold legal obligations regarding disclosure, while penalties for non-compliance should be consistently enforced. Public awareness campaigns are also necessary to ensure that intersex persons and their families understand their rights and know how to assert them. Ultimately, Chigiti maintains that access to information is inseparable from dignity: when intersex persons are empowered with knowledge about their bodies and histories, they can advocate for their rights, correct harmful narratives, and build identities grounded in autonomy rather than silence or coercion.

Family Life, Marriage and Adoption

Family life is a core social and constitutional right in Kenya, yet intersex persons often struggle to enjoy its full expression due to stigma, legal ambiguity, and cultural resistance. Chigiti emphasizes that the family is recognized under the Constitution as the natural and fundamental unit of society, deserving protection and support. However, without explicit legal recognition of intersex identity, many intersex adults face uncertainty regarding their ability to marry or enter legally recognized partnerships. Because Kenya’s legal system is built on a binary understanding of sex, marital status is closely tied to one’s legal classification as male or female. When an intersex person’s documented sex does not align with their lived identity or physical development, they may be denied the freedom to marry simply because their legal personhood is not clearly defined. This creates a landscape in which intersex individuals may be excluded from one of the most universal social institutions family formation.

Beyond marriage, Chigiti observes that intersex persons face entrenched prejudice within their own families of origin. Some are rejected at birth, abandoned, or subjected to harmful practices intended to erase their physical differences. Others grow up in secrecy, isolated by parents fearful of community backlash. Such experiences compromise emotional development and can lead to psychological trauma that persists into adulthood. Legal protections for children such as the right to name, nationality, and parental care are often undermined when intersex identity is perceived as a source of shame. Thus, child protection initiatives must reinforce the principle that every child, regardless of sex characteristics, has a right to nurturing family care. This includes interventions to prevent abandonment, ensure access to psychosocial support, and prohibit discrimination within the home. For parents, accessible information and counselling services are essential tools to support acceptance and informed decision-making.

Adoption presents a parallel set of challenges. Chigiti explains that although adoption law in Kenya is designed to prioritize the best interests of the child, intersex children may be disadvantaged due to discriminatory attitudes among prospective parents and adoption officials. Bias rooted in fear, misunderstanding, or cultural beliefs may lead to intersex children being overlooked in placement decisions. Yet, adoption can be a critical pathway to stable family life for intersex children who have been rejected or surrendered by their biological parents. Similarly, intersex adults seeking to adopt may encounter prejudice, since their gender identity or documentation may not conform to binary expectations. To address these gaps, Chigiti calls for an approach to adoption that centers dignity and non-discrimination. This requires sensitizing adoption officers, establishing clear anti-discriminatory guidelines, and affirming that intersex adults too are entitled to serve as adoptive parents. Ultimately, meaningful protection of family rights for intersex persons depends on dismantling cultural stigma and reforming legal structures so that biological variations do not impede the fundamental human right to family life.

Employment, Economic Opportunity and Public Participation

Employment and economic participation are essential components of human dignity and self-sufficiency, yet intersex persons in Kenya face profound barriers in accessing these opportunities. Chigiti observes that the root of this exclusion is two-fold: systemic discrimination and documentation challenges. Because identity documents in Kenya are strictly binary, many intersex persons either lack accurate identification or possess records that conflict with their lived identity. As a result, they struggle to meet standard requirements for job applications, professional registration, or entrepreneurship. Even where documentation is available, employers may respond with suspicion or hostility when sex markers or physical presentation appear inconsistent. These administrative and social barriers often push intersex persons into informal or precarious work, limiting income stability and reinforcing cycles of poverty.

Beyond documentation, workplace discrimination both overt and subtle undermines equal access to employment. Intersex persons may be excluded from hiring, denied promotions, or subjected to ridicule and harassment by colleagues. In some cases, employers have terminated contracts upon discovering an employee’s intersex status, illustrating how deeply stigma informs professional environments. Because physical characteristics may become more pronounced during adolescence or adulthood, intersex persons may face increasing scrutiny at later stages in their career development. The absence of explicit legal protections against discrimination on the basis of sex characteristics leaves them vulnerable, as anti-discrimination statutes often reference only male and female categories. This legislative gap means that intersex employees have limited avenues for redress when their rights are violated, reinforcing structural inequality in the labor market.

Economic exclusion also inhibits participation in public life. Without stable employment, many intersex persons are unable to access credit, secure housing, or contribute to social security systems. Those who lack national identification documents are further excluded from voting, accessing public services, and participating in government programs. Public appointment processes such as selection for community leadership positions, government boards, or administrative roles often rely on rigid identity verification systems that disadvantage intersex applicants. Even in civic spaces where participation does not require documents, social stigma often discourages intersex persons from engaging, for fear of exposure or discrimination. Chigiti argues that meaningful public participation requires both structural and attitudinal change. Legislative reform must explicitly recognize intersex persons and prohibit discrimination on the basis of sex characteristics, while public-sector institutions must incorporate inclusive practices. Additionally, broad social awareness campaigns are needed to cultivate respectful and supportive environments. By affirming intersex rights to work, vote, and contribute to public life, Kenya can take a significant step toward substantive equality and full citizenship for all its people.

Conclusion: Toward a Holistic Rights Framework

Chigiti’s analysis makes clear that the protection of intersex persons in Kenya requires far more than isolated legal adjustments; it demands a holistic rights framework grounded in dignity, autonomy, and substantive equality. Throughout the life cycle from birth to adulthood intersex individuals encounter structural and cultural forces that obscure their identities, deny recognition, and restrict access to essential services. The cumulative effect is a form of systemic invisibility that undermines every dimension of citizenship. While Kenya’s Constitution provides a strong foundation by guaranteeing equality, non-discrimination, and the security of the person, these broad guarantees have not translated into effective protection for intersex persons, primarily because legal and administrative systems continue to enforce the male–female binary. Realising constitutional promises therefore requires reforms that acknowledge the realities of intersex bodies and identities at law, in medicine, and across social institutions.

A holistic rights framework must begin with legal recognition. Explicit inclusion of “sex characteristics” within non-discrimination provisions, streamlined procedures for correcting identity documentation, and regulation of surgical interventions are essential steps. Equally important is the principle of bodily autonomy, which demands an end to medically unnecessary surgeries performed without informed consent. The healthcare sector must adopt a rights-based approach that integrates psychosocial support, informed decision-making, and sensitivity training for medical professionals. In education, comprehensive inclusion involves not only access but safety ensuring that intersex learners can study without fear of bullying, exclusion, or administrative barriers. Social systems, including family law, child protection, and adoption services, must also reflect the diversity of human sex characteristics, providing clear safeguards against abandonment and discrimination.

Finally, meaningful reform requires shifting social attitudes. Public education campaigns, professional training, and community dialogue are critical to dismantling stigma and building understanding. Advocacy networks and civil society organizations must be supported to amplify intersex voices, ensuring that policy changes are informed by lived experience. Chigiti concludes that the measure of Kenya’s commitment to human rights will be reflected in its willingness to protect those most marginalized by traditional frameworks. By embracing a holistic rights approach, one that integrates legal reform, medical ethics, social inclusion, and public education Kenya can transform intersex recognition from a contested boundary of identity into a fulfilled constitutional promise. Such a framework ultimately affirms that human diversity is not an aberration to be corrected, but a reality to be respected, protected, and celebrated.

This review was written by our Intersex Content Contributor, Delphine Barigye

Following an attack and malicious destruction of the property of Sexual Minorities Uganda (SMUG)‘s offices in Uganda on 19 May 2022, two staff members (referred to as DSB and HN for safety reasons) from SMUG reported the incident at the Ntinda Police Station in Kampala. Instead of receiving protection, they were accused of assault by the perpetrator of the destruction of SMUG’s offices, Elisha Mukisa, and the two were unjustly arrested and coerced into making incriminating statements. Mukisa is a self-proclaimed “ex-gay” crusader and product of anti-rights, anti-gender and anti-LGBTQ+ groups in Uganda.

The arrest of SMUG’s two staff members was followed by the public halting of the operations of SMUG by the NGO Bureau on 3 August 2022.

The case (Criminal Case Number 2518 of 2022) was finally won 3 years later, on 20 March 2025. One of the accused, DSB, said after the verdict acquitting them and their colleague:

“I’m so relieved and grateful to God almighty that the truth has finally come to light. This acquittal is a testament and a reminder that justice can prevail, even in the face of adversity.”

In a press release, an advocate in the case, Douglas Mawadri, said

“This case dragged on with baseless prosecution, multiple adjournments, and no real trial. Police must end arrests based on suspicion and hearsay. I hope those vindicated find healing from this ordeal.”

Dr Frank Mugisha, Co-Executive Director of SMUG, said the following:

“This case is a clear example of how Uganda’s hostile legal and political environment is weaponized against LGBTQ+ individuals. The fingerprints of anti-rights and anti-LGBTQ+ groups are all over this injustice where
victims seeking protection are instead criminalized. Let this victory be a symbol of our resistance, resilience, and hope.”

Fridah Mutesi, an advocate from Ubuntu Law and Justice Centre, said

“Litigating against hate and acceptance of SOGIESC issues will take longer, but we will win eventually. After representing our clients in court over thirty times, today the court agreed with our submissions, ruling that our clients had no case to answer, thereby acquitting them from criminal prosecution.”

The press release ended with SMUG saying

“While we acknowledge this legal victory, we remain concerned about the broader climate of persecution and criminalization facing LGBTQ+ individuals and organizations in Uganda. This case serves as a stark reminder that advocating for LGBTQ+ rights in Uganda remains a high-risk endeavor. The continued targeting of our community through misinformation, fabricated charges, arbitrary arrests, and legal harassment is an attempt to silence us.”

Attacks on SMUG and its staff did not begin in 2022, though, as SMUG founder, Victor Mukasa’s house was raided in 2005 and the friend staying at his house was arrested. Victor sued the Ugandan government and won the case in December 2008.

Read more about SMUG.

On 7 April 2022, an article by Nora Noralla was published on The Tahrir Institute for Middle East Policy website. In the article, the writer researched existing legal frameworks and case law in Egypt, Lebanon and Tunisia, and interviewed activists, experts and trans people about their experience.

Noralla writes:

“Egypt, Lebanon, and Tunisia lack clear avenues for transgender people to obtain legal gender recognition, increasing their vulnerability to abuses by security forces such as arbitrary arrests, and to systemic discrimination in healthcare, housing, and employment. Medical and judicial authorities in these countries arbitrarily restrict access to legal gender recognition based on misinformed perspectives that see transgender identities as pathological.

In the absence of the necessary legal and regulatory frameworks to grant such recognition, judicial authorities in the three countries are tasked with reviewing individual gender recognition applications submitted by transgender people. Laden with obstacles, this process is protracted (it can take from three to ten years), expensive, and inaccessible to most transgender people. Due to the absence of legislative frameworks for granting legal gender recognition, it is up to individual judges in each country to make decisions based on their interpretation of the law. Judicial authorities often require transgender applicants to have completed all surgical and hormonal interventions before reviewing their cases. The judicial forensic medical authorities are often tasked with examining transgender applicants to ensure they meet this requirement. Transgender people face significant obstacles to receiving gender-affirming healthcare in the three countries.

Although none of the three countries criminalize transgender identity, security forces often conflate it with sexual orientation, perceiving transgender women as gay men and transgender men as lesbian women, who are prosecuted under various laws. The discrepancy between transgender people’s official documents and gender expression makes them vulnerable to police abuse, including harassment and arbitrary arrests. Transgender detainees in Egypt and Lebanon are often placed in cells that do not reflect their gender identity, or in solitary confinement for lack of alternatives. Transgender people in such facilities endure ill-treatment that can amount to torture, such as forced anal examinations, a discredited practice to “prove” same-sex activity.”

The article goes on to describe the situations in each country in detail.

On Friday 12 November 2021, Mercedez von Cloete won her case in the Namibian High Court against the Minister of Safety and Security after being unlawfully arrested and assaulted by a police officer on 6 July 2017. She accused the plain-clothes officer, Constable Kavari, of throwing her into a police vehicle outside a fast-food restaurant in Windhoek. She further claimed that he punched and kicked her, and called her a ‘moffie’ (Afrikaans for homosexual). The incident was caught on CCTV cameras. According to a Mambaonline article about the case, Von Cloete further alleged that officers witnessing the assault did nothing to aid her.

Von Cloete was never charged with a crime. Von Cloete’s lawyer argued that she was the victim of a hate crime and that she was targeted because she is transgender.

In an interview after her victory, Von Cloete said:

“[The judgement] has made me a little more optimistic and hopeful that justice does, in fact, exist in Namibia. And whoever it is that has been subjected to cruel treatment or unfair treatment should not be afraid to also go and take the necessary steps possible to also get their day in court.”

In this video, Von Cloete speaks about her experiences and advocates for trans rights in Namibia.

In 2024, Von Cloete became the first trans woman to act as master of ceremonies at the annual Miss Namibia preliminary pageant:

Published in 2021, John Chigiti SC’s book, Intersex Persons & the Law in Kenya, offers a comprehensive overview of the legal rights Kenyan intersex people have, as well as the failures of Kenyan law to protect intersex people. Our Intersex Content Contributor, Delphine Barigye, wrote this review.

Intersex persons in Kenya continue to experience systemic discrimination, legal invisibility, and persistent violations of fundamental rights. Drawing on the analysis presented by Chigiti (2021) in Intersex Persons and the Law in Kenya, this article synthesises the author’s major themes across law, medicine, social systems, and policy. The discussion illustrates that although Kenya’s Constitution guarantees equality, dignity, and non-discrimination for all persons, the absence of explicit recognition of intersex identity structurally prevents full realisation of rights. Reforms in documentation, healthcare, access to information, family law, and education are urgently needed to align Kenya’s legal and policy environment with international human-rights principles.

Introduction

Intersex persons born with natural variations in sex characteristics that do not fit typical binary definitions of male or female remain socially marginalised and administratively invisible in Kenya. Chigiti demonstrates that while awareness of intersex identity is increasing globally, Kenya’s legal and medical systems remain ill-equipped to address the lived realities of this population. This article organises the core themes emerging from Chigiti’s text into a rigorous, thematic analysis to guide legal scholarship, advocacy, and policy design.

Conceptual and Medical Foundations

The conceptual and medical understanding of intersex persons forms the intellectual foundation of John Chigiti’s argument in Intersex Persons and the Law in Kenya. He begins by revisiting the definition of intersex, historically known under the stigmatising term “hermaphrodite.” As medical knowledge evolved, such terminology gave way to scientifically grounded and human-rights-based language “intersex” or “persons with differences in sex development (DSD).” These terms describe individuals born with variations in chromosomal, gonadal, or anatomical sex characteristics that do not fit typical binary definitions of male or female.

Chigiti identifies multiple biological bases for intersex variation, including chromosomal patterns (e.g., 47XXY; Klinefelter syndrome; 47XXX; Trisomy X), gonadal differences (presence of both ovarian and testicular tissue), and hormonal atypicalities (such as androgen insensitivity syndrome or congenital adrenal hyperplasia). These medical distinctions, he argues, demonstrate that intersex is not an anomaly but a naturally occurring human variation that is present in approximately 1.7% of the world’s population, according to the Office of the United Nations High Commissioner for Human Rights (OHCHR).

From a biomedical perspective, Chigiti underscores the importance of genetic and chromosomal evaluation in determining an intersex condition. This involves understanding the genetic composition (heredity), where chromosomes carry the physical units of heredity known as genes. The book clarifies that each human cell normally contains 23 pairs of chromosomes, but variations in these pairs can produce different expressions of sex traits. For example, atypical configurations in sex chromosomes (such as XXY or XO) may lead to non-binary sexual differentiation.

Chigiti also references international legal definitions to enrich the conceptual clarity. The Maltese Gender Identity, Gender Expression, and Sex Characteristics Act defines “sex characteristics” as encompassing chromosomal, gonadal, and anatomical features including reproductive organs, genitalia, hormonal structures, and secondary traits like muscle mass, hair distribution, and breasts. This broader framing moves beyond mere physical appearance and emphasizes biological diversity as part of human variation. The California Senate Bill 225 and the South African Alteration of Sex Description and Sex Status Act similarly recognize that intersex persons exhibit variations in physical traits such as genitalia, hormone function, and chromosome patterns that deviate from stereotypical male-female norms.

Importantly, Chigiti cautions against superficial or appearance-based judgments. Physical features such as a deep voice in women or softer features in men do not constitute evidence of intersex status. A definitive classification must be based on medical examination of chromosomal, gonadal, and hormonal structure by a competent medical practitioner. The Persons Deprived of Liberty Act (2014) in Kenya explicitly adopts this medical standard, defining an intersex person as “a person certified by a competent medical practitioner to have both male and female reproductive organs.” This legal definition anchors intersex identity in verified medical evidence rather than social perception.

Chigiti thus establishes a dual conceptual framework: medical and legal. The medical framework recognizes intersex as a spectrum of biological diversity requiring sensitivity and scientific accuracy, while the legal framework demands recognition and protection of such individuals within Kenya’s constitutional and statutory systems. He insists that law and medicine must converge to ensure dignity, autonomy, and accurate identification. The medical field, therefore, carries not only a diagnostic function but also an ethical and human-rights obligation to refrain from coercive “normalising” surgeries and to support informed decision-making rooted in bodily autonomy and consent.

Stigma, Culture and Discrimination

Stigma surrounding intersex persons in Kenya is deeply rooted in cultural beliefs, religious narratives, and social norms that privilege binary understandings of sex. In many communities, intersex birth is not merely misunderstood; it is feared. Local languages contain derogatory terms such as huntha (Kiswahili), kiugu (Kikuyu), and malinda (Kikamba), reflecting long-standing othering of bodies perceived as sexually atypical. These linguistic patterns reinforce the perception that intersex traits are unnatural or shameful, encouraging secrecy and silence within families. Fear of public shame leads many parents to conceal affected children, thereby denying them opportunities for health care, social participation, and early identity formation. Where physical differences manifest during adolescence rather than infancy, stigma often intensifies, as peers and communities react to visible divergence from gender expectations exposing intersex adolescents to ridicule, isolation, and emotional trauma.

This stigma is exacerbated by cultural narratives that view intersex children as omens, curses, or spiritual anomalies. In extreme cases, families may resort to infanticide, abandonment, or coercive “normalization” practices in an attempt to erase perceived deformity. Such reactions are reinforced by a lack of awareness and the dominant societal insistence on male/female classification. Schools and hospitals, operating within rigid gendered systems, inadvertently perpetuate discrimination by forcing children into binary categories. Administrative institutions, including registration authorities, contribute to indirect discrimination by refusing to issue documents when sex cannot be readily categorized thereby excluding intersex children from schooling, social protection, and later, employment. Chigiti underscores that such bureaucratic exclusion constitutes structural discrimination because policies that appear neutral in text disadvantage intersex persons in practice.

Legal discourse demonstrates the depth of this systemic exclusion. In Baby A (Suing through the Mother E.A.) v Attorney General & 6 Others, the court declined to recognise intersex as a distinct sex category, holding that “sex” under the Constitution referred solely to male and female. This reinforced the legal invisibility of intersex persons and signalled judicial reluctance to depart from binary frameworks. Although the Persons Deprived of Liberty Act acknowledges intersex through a medicalized definition, it does not dismantle broader discriminatory systems. Consequently, intersex persons remain vulnerable to both direct discrimination such as bullying, denial of services, and forced medical procedures and indirect discrimination through policies structured around binary assumptions. The cumulative effect of stigma, cultural misconception, and legal marginalization produces multidimensional exclusion that compromises fundamental rights to dignity, equality, identity, and social belonging.

Sex, Gender and Legal Classification

The distinction between sex and gender is central to understanding the legal challenges intersex persons face in Kenya. Sex is primarily a biological construct based on chromosomes, gonads, hormones, and genital anatomy while gender refers to socially constructed roles, identities, and expectations assigned to individuals. Despite this conceptual separation, Kenyan legal and administrative systems continue to treat sex and gender as synonymous, maintaining a rigid male–female framework that excludes intersex identities. Chigiti emphasises that this conflation denies the biological complexity of intersex persons and forces their lived realities into categories that do not reflect their physiology, identity, or social experience. Such binary rigidity erases intersex existence at the institutional level, reinforcing both invisibility and exclusion from legal and social systems.

At the core of these challenges is the requirement legally and administratively that every individual be categorized as either male or female at birth. Birth registration forms, school records, hospital files, and identification documents mandate binary sex classification, leaving no room for intersex variations. Because many intersex traits are not visible at birth or are misunderstood by medical personnel, sex assignment is often arbitrary, based solely on external genital appearance rather than chromosomal or gonadal composition. These early decisions may conflict with the individual’s later physical development or personal identity, creating lifelong inconsistencies between documentation and lived experience. As intersex persons grow, these mismatches complicate access to schooling, healthcare, employment, and travel, illustrating how binary registration systems create legal and social instability.

The judicial system has reinforced this binary view. In Baby A (Suing through the Mother E.A.) v Attorney General & 6 Others, the High Court held that “sex” within constitutional provisions referred only to male and female, dismissing attempts to argue for broader interpretation that would include intersex. The Court noted that expanding the definition of sex fell outside judicial authority and should instead be addressed by Parliament. This decision crystallised intersex exclusion within constitutional interpretation and signalled the judiciary’s hesitation to challenge cultural and legislative norms. Consequently, intersex persons remain without explicit recognition under Kenyan law, leaving them vulnerable to discrimination and dependent on fragmented statutory protections. Chigiti concludes that achieving meaningful recognition requires legislative reform that acknowledges biological diversity and ensures that intersex persons are fully protected within Kenya’s constitutional and legal frameworks.

Identity, Documentation and Legal Personhood

Identity documentation is a primary gateway to legal personhood in Kenya, yet intersex persons routinely encounter exclusion because existing systems recognise only two sex categories: male or female. Chigiti underscores that birth certificates, national identity cards, and passports are not merely administrative tools but instruments that affirm an individual’s legal existence, belonging, and citizenship. Without them, a person’s ability to participate in society is profoundly restricted. For intersex children, the challenge emerges immediately at birth. Medical staff and civil registration officers, operating within a binary framework, often compel parents to select a sex designation despite uncertainty, resulting in assignments based solely on outward genital appearance rather than comprehensive medical assessment. This early classification which is frequently inaccurate imposes an identity that may later conflict with the individual’s physical development or self-understanding, thereby undermining their autonomy and personal narrative.

Because legal records form the basis for nearly all entitlements, inaccurate or absent documentation triggers a cascade of exclusion. Intersex individuals who cannot obtain accurate birth certificates or national IDs face barriers in accessing education, healthcare, employment, housing, and voting rights. For school enrolment, birth certificates are compulsory; those without them may be denied admission or forced into constant explanation of their identity. In healthcare settings, identity cards are essential for insurance coverage and continuity of care. Lack of documentation can therefore undermine access to diagnosis, treatment, and psychological support. Adults with mismatched records frequently encounter suspicion, humiliation, and bureaucratic hostility when attempting to update their sex markers, underscoring the intertwined nature of documentation and social acceptance.

Although Kenya’s Access to Information Act and related legal provisions allow for correction of personal records, the process remains complex, costly, and poorly understood. Individuals often require medical certification, affidavits, and legal representation to effect changes thus placing rectification out of reach for most intersex persons. This administrative burden constitutes a form of indirect discrimination: while the procedures apply to all, they disproportionately disadvantage those whose identities challenge binary norms. Chigiti argues that the absence of explicit legislative guidance on intersex documentation leaves individuals dependent on discretionary decisions by civil servants and courts, leading to inconsistency and vulnerability. He emphasizes that recognition is not symbolic; it is a prerequisite for enjoying fundamental rights and freedoms. Achieving meaningful reform therefore demands that Kenya adopt clear legal provisions enabling flexible sex/gender markers, streamlined correction processes, and non-discriminatory recognition of intersex status to ensure full legal personhood.

Parental Dilemmas and Child Protection

The birth of an intersex child in Kenya often triggers confusion, fear, and emotional turmoil within the family, largely because intersex variations are poorly understood and highly stigmatized. Chigiti explains that parents are typically thrust into a decision-making space without sufficient medical, psychological, or social support. In many cases, families receive inconsistent or superficial medical explanations, leaving them uncertain about their child’s biological status and future development. This uncertainty can generate guilt, shame, or internalized blame, particularly where cultural or religious interpretations frame intersex traits as curses, misfortunes, or aberrations. The desire to protect the child from ridicule, combined with the pressure to conform to binary expectations, often drives parents into secrecy, resulting in delayed health care, insufficient emotional bonding, and isolation of the child from community life.

Within this context of inadequate guidance, parents frequently face intense pressure to authorise early genital “normalisation” surgeries. These procedures are typically presented as corrective measures intended to align the child’s body with male or female norms, even when not medically necessary. Chigiti emphasizes that these decisions are often made before parents fully understand their long-term implications. Without access to balanced information regarding physical risks, psychological impact, and ethical concerns, families may consent to interventions that compromise bodily autonomy, future reproductive function, and the child’s self-determination. Moreover, because intersex traits may involve developmental changes during puberty, surgical decisions made in infancy can produce lifelong distress when the child’s physical or psychological sex diverges from the assigned identity. As the child grows, undoing earlier surgical or legal decisions becomes complex, expensive, and emotionally destabilizing.

These challenges underscore the need for strong child-protection frameworks grounded in the best interests of the child, as recognised under Article 53 of the Constitution and the Children Act. Chigiti argues that societal shame and misinformation can lead to harmful practices, including abandonment, infanticide, or long-term concealment. Ensuring child welfare therefore requires active State intervention to prevent abuse, promote family counselling, and regulate medical decision-making. Protecting intersex children involves guaranteeing access to psychosocial support, delaying non-essential surgeries until the child is mature enough to participate in decisions, and preventing discrimination in healthcare, education, and documentation processes. Child-focused protection mechanisms must affirm dignity and safety while empowering caregivers with accurate information. Chigiti concludes that safeguarding intersex children requires shifting from secrecy and coercive conformity toward transparency, informed consent, and holistic support systems that respect bodily integrity and human rights.

Healthcare, Bodily Autonomy and Post-Surgery Harm

Healthcare access for intersex persons is deeply intertwined with issues of bodily autonomy, dignity, and informed consent. Chigiti observes that the medical system in Kenya often approaches intersex variations through a pathological lens, prioritizing the “correction” of bodies rather than understanding or supporting their natural diversity. From infancy, intersex individuals are subjected to medical examinations that frequently frame their anatomy as problematic or abnormal, reinforcing stigma and legitimizing invasive intervention. While healthcare professionals have an important role in diagnosing intersex traits, Chigiti stresses that their responsibility extends beyond clinical assessment to the ethical obligation of respecting autonomy and providing transparent, non-coercive information to families. Effective care must include psychological support for both child and caregivers, avoiding fear-based narratives that push families toward unnecessary medical decisions.

A central concern in this thematic area is the widespread practice of non-consensual “normalisation” surgeries performed on intersex infants and young children. These surgeries, often conducted for social rather than medical necessity; aim to modify genitalia to resemble typical male or female forms. Chigiti emphasizes that such interventions are irreversible and frequently result in diminished sexual function, chronic pain, scarring, reduced fertility, and psychological trauma. Many intersex youth grow up without being informed of the procedures performed on them, only discovering later that their anatomy was altered without their consent. Because these surgeries are performed before the child can participate in decision-making, they are incompatible with key human rights principles, including bodily integrity, informed consent, and freedom from degrading treatment. The absence of long-term medical follow-up exacerbates the problem, leaving individuals with ongoing complications and little institutional support.

The long-term consequences of these surgeries extend beyond physical harm. Chigiti documents how repeated medical interventions, failed reconstructions, and ongoing infections frequently push individuals into cycles of hospitalization and social withdrawal. Some are left incontinent and dependent on diapers; others face repeated surgical attempts to “fix” initial procedures, compounding trauma. The social stigma attached to these outcomes often prevents individuals from seeking further care, driving them into silence and isolation. Emotional harm including shame, depression, and loss of identity is pervasive, particularly when physical development during puberty conflicts with the sex assigned surgically at birth. These challenges highlight the urgent need for a patient-centered, rights-based healthcare model in which medical treatment respects bodily autonomy, defers irreversible intervention until informed consent is possible, and provides psychosocial support to individuals and families. Chigiti concludes that reform in Kenya’s health sector is essential to prevent further harm: healthcare workers must be sensitized, medical guidelines must be revised to prohibit medically unnecessary surgeries, and intersex persons must be guaranteed access to comprehensive, non-discriminatory care throughout their lives.

Education and Social Inclusion

Education is a transformative right that enables individuals to acquire skills, build confidence, and participate meaningfully in society. For intersex children in Kenya, however, access to education is often impeded by structural, social, and administrative barriers. Chigiti explains that the earliest hurdle typically arises at the point of school enrolment, where a birth certificate is required. Because many intersex children are either mis-registered or not registered at all due to uncertainty around sex classification, they may be denied admission or delayed in beginning school. Even when enrolled, school records designed around a rigid male–female binary force children into sex categories that may not align with their bodies or identity. This administrative misalignment contributes to confusion, emotional distress, and a sense of alienation, demonstrating how exclusion is built into the very structure of the education system.

Within the school environment, intersex learners face heightened vulnerability to bullying, ridicule, and physical or psychological harassment from peers and sometimes even from teachers. Puberty often magnifies this vulnerability when physical development diverges visibly from male or female norms, exposing children to stigma and unwanted questioning. Schools, which typically lack guidelines for supporting intersex students, may react with punitive or exclusionary measures rather than compassion and protection. In particular, the strict division of sanitation and dormitory spaces by sex poses serious risks. Intersex learners may be forced into facilities that are unsafe or inappropriate, or they may be denied accommodation altogether in boarding schools—pushing many out of schooling prematurely. Weak institutional awareness compounds these harms, as educators are rarely trained to recognize intersex realities or respond sensitively to students’ needs.

The repeated trauma of discrimination contributes to higher dropout rates among intersex learners and increases the likelihood of long-term social marginalization. Chigiti stresses that exclusion from education closes pathways to social mobility, economic opportunity, and legal consciousness reproducing cycles of vulnerability. Thus, social inclusion within the education system is not simply a matter of physical access but of meaningful participation in a safe, affirming environment. To achieve this, schools must adopt comprehensive inclusion measures: sensitizing teachers and staff, protecting students through robust anti-bullying policies, and ensuring access to gender-neutral facilities. Curricula should reflect human diversity, promoting understanding and dismantling stereotypes from an early age. These measures must be coupled with nationwide awareness campaigns and policy reforms that affirm every learner’s dignity. Chigiti argues that centering intersex learners’ rights in educational policy is essential to ensuring that Kenya’s constitutional promise of equality becomes a lived reality, fostering a society in which all children regardless of sex characteristics can learn, grow, and thrive.

Access to Information

Access to information is a foundational right that enables individuals to understand themselves, make informed decisions, and seek the protection of the law. For intersex persons in Kenya, this right is especially critical because much of the information related to their biological status, medical history, and early-life interventions is often withheld, obscured, or inaccessible. Chigiti underscores that Article 35 of the Constitution guarantees every citizen the right to access information held by the State and by others where necessary for the exercise or protection of rights. This includes medical records documenting diagnosis, surgical procedures, hormone treatments, or decisions made on a child’s behalf. Without access to such information, intersex persons may be deprived of the ability to understand their identities, engage in informed health choices, or challenge violations committed against them in their early years. Thus, access to information becomes a gateway to bodily autonomy, legal clarity, and psychological affirmation.

Despite legal safeguards particularly the Access to Information Act (2016) intersex persons frequently encounter barriers when attempting to retrieve important personal records. Healthcare institutions, guardians, or civil authorities may refuse disclosure due to ignorance, stigma, or paternalistic beliefs that such information is too sensitive or harmful. In many cases, intersex individuals only learn in adolescence or adulthood that they underwent genital surgeries as infants or were subjected to hormonal treatments without consent. Such delayed discovery can trigger profound emotional distress and a sense of betrayal. These barriers are compounded by administrative challenges, including poorly digitized records, discretionary decision-making by officials, and lack of awareness about legal entitlements. Even when individuals attempt to correct inaccurate details such as sex markers on identification documents, the procedures are cumbersome, expensive, and poorly publicized, hindering their ability to secure accurate documentation and exercise full citizenship.

Chigiti argues that ensuring meaningful access to information requires more than legislative recognition; it demands proactive institutional support. Hospitals and civil registration offices must develop protocols that guarantee timely release of medical and legal records, with specific provisions for intersex persons. State agencies and service providers must be trained to understand and uphold legal obligations regarding disclosure, while penalties for non-compliance should be consistently enforced. Public awareness campaigns are also necessary to ensure that intersex persons and their families understand their rights and know how to assert them. Ultimately, Chigiti maintains that access to information is inseparable from dignity: when intersex persons are empowered with knowledge about their bodies and histories, they can advocate for their rights, correct harmful narratives, and build identities grounded in autonomy rather than silence or coercion.

Family Life, Marriage and Adoption

Family life is a core social and constitutional right in Kenya, yet intersex persons often struggle to enjoy its full expression due to stigma, legal ambiguity, and cultural resistance. Chigiti emphasizes that the family is recognized under the Constitution as the natural and fundamental unit of society, deserving protection and support. However, without explicit legal recognition of intersex identity, many intersex adults face uncertainty regarding their ability to marry or enter legally recognized partnerships. Because Kenya’s legal system is built on a binary understanding of sex, marital status is closely tied to one’s legal classification as male or female. When an intersex person’s documented sex does not align with their lived identity or physical development, they may be denied the freedom to marry simply because their legal personhood is not clearly defined. This creates a landscape in which intersex individuals may be excluded from one of the most universal social institutions family formation.

Beyond marriage, Chigiti observes that intersex persons face entrenched prejudice within their own families of origin. Some are rejected at birth, abandoned, or subjected to harmful practices intended to erase their physical differences. Others grow up in secrecy, isolated by parents fearful of community backlash. Such experiences compromise emotional development and can lead to psychological trauma that persists into adulthood. Legal protections for children such as the right to name, nationality, and parental care are often undermined when intersex identity is perceived as a source of shame. Thus, child protection initiatives must reinforce the principle that every child, regardless of sex characteristics, has a right to nurturing family care. This includes interventions to prevent abandonment, ensure access to psychosocial support, and prohibit discrimination within the home. For parents, accessible information and counselling services are essential tools to support acceptance and informed decision-making.

Adoption presents a parallel set of challenges. Chigiti explains that although adoption law in Kenya is designed to prioritize the best interests of the child, intersex children may be disadvantaged due to discriminatory attitudes among prospective parents and adoption officials. Bias rooted in fear, misunderstanding, or cultural beliefs may lead to intersex children being overlooked in placement decisions. Yet, adoption can be a critical pathway to stable family life for intersex children who have been rejected or surrendered by their biological parents. Similarly, intersex adults seeking to adopt may encounter prejudice, since their gender identity or documentation may not conform to binary expectations. To address these gaps, Chigiti calls for an approach to adoption that centers dignity and non-discrimination. This requires sensitizing adoption officers, establishing clear anti-discriminatory guidelines, and affirming that intersex adults too are entitled to serve as adoptive parents. Ultimately, meaningful protection of family rights for intersex persons depends on dismantling cultural stigma and reforming legal structures so that biological variations do not impede the fundamental human right to family life.

Employment, Economic Opportunity and Public Participation

Employment and economic participation are essential components of human dignity and self-sufficiency, yet intersex persons in Kenya face profound barriers in accessing these opportunities. Chigiti observes that the root of this exclusion is two-fold: systemic discrimination and documentation challenges. Because identity documents in Kenya are strictly binary, many intersex persons either lack accurate identification or possess records that conflict with their lived identity. As a result, they struggle to meet standard requirements for job applications, professional registration, or entrepreneurship. Even where documentation is available, employers may respond with suspicion or hostility when sex markers or physical presentation appear inconsistent. These administrative and social barriers often push intersex persons into informal or precarious work, limiting income stability and reinforcing cycles of poverty.

Beyond documentation, workplace discrimination both overt and subtle undermines equal access to employment. Intersex persons may be excluded from hiring, denied promotions, or subjected to ridicule and harassment by colleagues. In some cases, employers have terminated contracts upon discovering an employee’s intersex status, illustrating how deeply stigma informs professional environments. Because physical characteristics may become more pronounced during adolescence or adulthood, intersex persons may face increasing scrutiny at later stages in their career development. The absence of explicit legal protections against discrimination on the basis of sex characteristics leaves them vulnerable, as anti-discrimination statutes often reference only male and female categories. This legislative gap means that intersex employees have limited avenues for redress when their rights are violated, reinforcing structural inequality in the labor market.

Economic exclusion also inhibits participation in public life. Without stable employment, many intersex persons are unable to access credit, secure housing, or contribute to social security systems. Those who lack national identification documents are further excluded from voting, accessing public services, and participating in government programs. Public appointment processes such as selection for community leadership positions, government boards, or administrative roles often rely on rigid identity verification systems that disadvantage intersex applicants. Even in civic spaces where participation does not require documents, social stigma often discourages intersex persons from engaging, for fear of exposure or discrimination. Chigiti argues that meaningful public participation requires both structural and attitudinal change. Legislative reform must explicitly recognize intersex persons and prohibit discrimination on the basis of sex characteristics, while public-sector institutions must incorporate inclusive practices. Additionally, broad social awareness campaigns are needed to cultivate respectful and supportive environments. By affirming intersex rights to work, vote, and contribute to public life, Kenya can take a significant step toward substantive equality and full citizenship for all its people.

Conclusion: Toward a Holistic Rights Framework

Chigiti’s analysis makes clear that the protection of intersex persons in Kenya requires far more than isolated legal adjustments; it demands a holistic rights framework grounded in dignity, autonomy, and substantive equality. Throughout the life cycle from birth to adulthood intersex individuals encounter structural and cultural forces that obscure their identities, deny recognition, and restrict access to essential services. The cumulative effect is a form of systemic invisibility that undermines every dimension of citizenship. While Kenya’s Constitution provides a strong foundation by guaranteeing equality, non-discrimination, and the security of the person, these broad guarantees have not translated into effective protection for intersex persons, primarily because legal and administrative systems continue to enforce the male–female binary. Realising constitutional promises therefore requires reforms that acknowledge the realities of intersex bodies and identities at law, in medicine, and across social institutions.

A holistic rights framework must begin with legal recognition. Explicit inclusion of “sex characteristics” within non-discrimination provisions, streamlined procedures for correcting identity documentation, and regulation of surgical interventions are essential steps. Equally important is the principle of bodily autonomy, which demands an end to medically unnecessary surgeries performed without informed consent. The healthcare sector must adopt a rights-based approach that integrates psychosocial support, informed decision-making, and sensitivity training for medical professionals. In education, comprehensive inclusion involves not only access but safety ensuring that intersex learners can study without fear of bullying, exclusion, or administrative barriers. Social systems, including family law, child protection, and adoption services, must also reflect the diversity of human sex characteristics, providing clear safeguards against abandonment and discrimination.

Finally, meaningful reform requires shifting social attitudes. Public education campaigns, professional training, and community dialogue are critical to dismantling stigma and building understanding. Advocacy networks and civil society organizations must be supported to amplify intersex voices, ensuring that policy changes are informed by lived experience. Chigiti concludes that the measure of Kenya’s commitment to human rights will be reflected in its willingness to protect those most marginalized by traditional frameworks. By embracing a holistic rights approach, one that integrates legal reform, medical ethics, social inclusion, and public education Kenya can transform intersex recognition from a contested boundary of identity into a fulfilled constitutional promise. Such a framework ultimately affirms that human diversity is not an aberration to be corrected, but a reality to be respected, protected, and celebrated.

This review was written by our Intersex Content Contributor, Delphine Barigye

Watch our interview with intersex activist, Julius Kaggwa, about the Baby A case

In March 2020, The Victor Mukasa Show was broadcast live for the first time. Ugandan trans and LGBTI activist, Victor Mukasa envisioned the show as a space that would bring emerging issues for LGBTIQ+ people from the continent and the Diaspora to light. It aims to feature everything Queer and African, ranging from education, activism, arts, politics, social lives and everything that involves queer Africans. Victor’s vision for The Victor Mukasa Show is that it be a meeting place for queers and allies and a source of information, for activists, for their allies, local communities, legislators, and human rights organisations. The Victor Mukasa Show started off as a weekly podcast, on platforms such as Anchor and Spotify and later migrated to Facebook and YouTube. 

Later on, in March 2023, when the Anti-Homosexuality Bill (AHB) was reintroduced in Uganda at Parliament level, Victor branched The Victor Mukasa Show out to have a more general focus — to open a chapter specifically addressing the Ugandan community. This new division of his talk shows is called Ekimeeza K’abaLaGaBaTa (Queer Table Talk). This segment of the show is in Luganda (the spoken language in Uganda) and aimed at the general public. Queer Table Talk was introduced as a direct result of the AHB (this was before it became an Act of Law) as the suggestions within the proposed Bill was to not only prosecute LGBTIQ+ people but also to silence them and LGBTIQ+ organisations by preventing workshops, awareness raising sessions, meetings, sensitisation sessions, and even the production of informative material was to become illegal. Along with this silencing, the rightwing conservatives also distributed propaganda and misinformation, and stereotyping was on the rise. Victor realised that Ugandan LGBTIQ+ activists within Uganda could do nothing about this, that it would be illegal to address it, and that there was no way to counter the propaganda. This is how the Ekimeeza K’abaLaGaBaTa (Queer Table Talk) was born.

Victor says that The Queer Table Talk continues to deliver great results, with the introduction of the show to TikTok, which has increased viewers and engagement, as well as the fact that the language used (besides Luganda) makes the talks and topics accessible to everyone — not just activists, but the women who sells food on the street side and the boda-boda taxi driver:

“Here we don’t talk about United Nation Declarations and technical terms, we speak the language people understand”.

During the show, Victor has a lot of back and forth communication in Luganda with heterosexual community members. As Victor says

“The only thing that separates us, are the lies that they have been told about us!” 

Watch our interview with Victor about the first Victor Mukasa Show

After filing the case in 2016, Jade September won her court case at the Equality Court in the Western Cape, South Africa, on 23 September 2019. Ms September alleged that she had suffered numerous discriminatory actions by staff at the men’s facility at the Helderstroom Prison in Caledon, Cape Town, South Africa. In her court application, Ms September said that she was forced to cut her hair and that

“the heads of Helderstroom and the Malmesbury correctional facilities had failed to allow her to express her gender identity by not allowing her to wear female underwear, jewellery or make-up.”

Following the Equality Court victory, Ms September’s lawyer, Sanja Bornman from the Gender Equality Programme at Lawyers for Human Rights, stated that the judgement set a precedent and that

“from now on, all prisons in South Africa must respect, protect, and promote the rights of transgender inmates. They cannot deny any trans person the right to express their gender identity, and they cannot force trans and gender non-binary inmates to behave or present in a way that conflicts with their identity. The judgment makes it clear that a person’s gender identity is part of their rights to equality, human dignity, and freedom of expression. If you deny a person the right to express their gender identity, you are violating those rights [and that her client, Ms September] is especially happy that this judgment is not only a win for her, but for many others like her stuck in a binary prison system, and trans people generally in South Africa whose existence and rights are ignored.”

The following press release was issued by the Legal Resources Centre, Gender DynamiX, Lawyers for Human Rights, the Triangle Project and Iranti:

“On Monday 23 September 2019, the Equality Court in the Western Cape handed down its judgment in the matter of September vs Subramoney N.O and Others. Ms. September is a transgender woman currently serving a prison sentence inside a male correctional facility. While incarcerated, prison officials denied her the right to express her gender through her hairstyle, dress, and use of small amounts of make-up. She has also been subject to verbal abuse and harassment from prison officials, and at one stage placed in segregated confinement after trying to express her gender.

Ms September sought relief from the Court for the violation of her fundamental constitutional rights to equality and human dignity, including an order that the respondents permit her to express her gender, and that her gender identity be respected and protected while incarcerated. Ms. September was represented by Lawyers for Human Rights, and her matter was heard on 26 and 27 November 2018. Gender Dynamix, represented by the Legal Resources Centre, were admitted as friends of the court.

We welcome and celebrate the judgment delivered by the Equality Court, which we believe is central to the promotion of the rights of transgender and gender diverse persons in South Africa. These classes of persons remain marginalised and ignored by the law and its application.

In a fundamental judgment, the Court held that refusal to allow a transgender person to express their gender identity is unfair discrimination that violates both the right to equality and section 8 of the Promotion of Equality and Prevention of Unfair Discrimination Act. The Court therefore ordered prison officials to allow Ms. September and others similarly placed to wear female underwear, keep her hair long and wear make-up, as well as address her as a woman and use female pronouns when referring to her. The Department of Correctional Services was also ordered to introduce transgender sensitivity training for current and new employees.

Critically, the Court reiterated that the incarceration of a person does not in any way excuse the State from fulfilling the obligation to respect, protect, promote and fulfil the rights of the applicants and others similarly placed. The Court emphasised the importance of the right to equality and how it links with the ability to express one’s gender identity. Further, the Court also correctly noted that Ms. September’s case was not just about equality, but also included the  rights to dignity, freedom of expression and dignified detention, among others. The court explained that the respect for dignity requires the recognition of and respect for the unique identity and expression of each individual. The right to dignity therefore includes the right to express one’s gender identity.

The Court highlighted the linkages of the right to equality and the right to freedom of expression. The Court found that Ms. September had been denied her personal freedom to develop and express her gender identity which violated her right to freedom of expression. The court stressed that the infringement of freedom of expression is particularly severe when it is connected to other rights.

Importantly, the Court recognised the applicability of the Yogyakarta Principles and Yogyakarta Principles Plus 10 to the South African human rights context, citing “the obligation on the State to ‘repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity‘” (Principle 6). The Court also emphasised the right to treatment with humanity while in detention (Principle 9), which says that the State must “ensure that placement in detention avoids further marginalising persons on the basis of sexual orientation or gender identity or subjecting them to risk of violence, ill-treatment or physical, mental or sexual abuse.”

We welcome this groundbreaking judgement as it is an important development of the South African jurisprudence on the rights to gender identity and gender expression, and a significant step towards greater protection and realisation of the human rights of transgender and gender diverse people in South Africa. We urge all government departments to take note of this judgement and ensure that their laws, policies and practices comply with human rights standards on gender recognition for transgender and gender diverse persons.”

In 2018, Heinrich-Böll-Stiftung published a report on trans rights in Tunisia by Dr Habib Nouisser, titled ‘Sex Change in Tunisia: When Law Confiscates Identities.’ According to the study,

“the Tunisian judiciary systematically refuses requests to change gender markers in cases in which people have undergone sex reassignment surgery because of gender identity disorder, citing various sources from the Qur’an as well as Tunisia’s cultural positioning in the Arab-Muslim world as grounds for their decisions. The same study indicates that the judiciary is more inclined to allow legal gender recognition for intersex people than for transgender people.

Judicial authorities’ reliance on the misconceived pathologization of transgender identities forces transgender people who seek legal recognition of their gender to endure humiliating medical examinations by judicial forensic authorities. Judicial authorities also require transgender people to undergo all surgical and hormonal treatments before reviewing their applications.”

Source: ‘Tough Territory for Transgender People in Middle East and North Africa’, by Nora Noralla

The study looked at Tunisian legislation regarding gender identity. The author writes that Tunisian law views gender as a binary, meaning it does not cater for people who undergo gender-affirming surgery, condemning them to discrimination based on identity documents that do not reflect their bodily realities and gender identities (pages 4-5).

The author continues, the law

“confines the person concerned to a legal status which restricts his/her most fundamental rights as an indication and not limited to his/her basic right to identity, his/her right to enter marriage and found a family, his/her right to individual liberty, his/her right to respect for the dignity of his/her person [… and] his/her body” (page 6).

According to the study, legislation allows changes to legal sex if it is “justified by a vital necessity, with a curative purpose” and not on the basis of “modifying the initial sex” (page 7). This would seem to indicate, although the study does not explicitly say so (possibly due to the article being written in Arabic and translated into English), that Differences of Sexual Development, or intersex characteristics, would be a legally acceptable reason to amend one’s legal sex as it would be “curative” in removing any sexual physical ambiguities and make it easier to place an individual in the legal binary of male and female.

The study also discusses the reliance on religion within the justice framework, with gender identity being seen as a Western world “cultural identity”, and contrary to the teachings of the Quran (pages 7-8).

In an article published on 7 April 2022 entitled ‘Tough Territory for Transgender People in the Middle East and North Africa’, Nora Noralla writes that surgical gender-affirming care for Tunisian trans people are limited, with people having to travel abroad. One activist said,

“There are no doctors who can do the surgeries for us here, maybe some plastic surgeons would do the top surgery [breast augmentation or removal], but it is very costly. I traveled to Egypt in 2015 after some friends there connected me with doctors who did the operation for me in their private clinic.”

Noralla also writes that access to general healthcare is often denied to trans people, and that they have been harassed by healthcare workers. A trans man interviewed by Noralla said,

“When I get sick, I would rather sleep it away than go to a hospital. Every time I go I either get mocked or cursed at and often do not even receive the treatment I need.”

Noralla reports that trans people not being able to access identity documents that reflect their gender leads to discrimination. A trans man said that

“For me, the biggest problem is the mismatch between my papers and my gender identity. I cannot get a job, and this impacts all the other aspects of my life.” He added, “The basis of our problems is the lack of economic empowerment. If we get jobs, we can make money and then undergo the operations or travel abroad.”

In concluding the article, Noralla writes:

“Tunisia [is party] to international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which emphasize the protection of human rights regardless of gender identity or sexual orientation. The UN Human Rights Committee, which monitors compliance with the ICCPR, and the Committee on Economic, Social and Cultural Rights have made clear that countries are prohibited from discriminating based on sexual orientation or gender identity in upholding the rights set forth in the respective treaties. CESCR General Comment No 14 states that the right to healthcare is fundamental and calls on member states to ensure access to healthcare without discrimination. CESCR General Comment No 4 emphasizes the right to adequate and safe housing.

Tunisia [is] also obligated under the African Charter of Human Rights to protect sexual and gender minorities as stipulated in the African Commission on Human and People’s Rights’ resolution 275 in 2014, which condemns systematic attacks and human rights violations based on gender identity and sexual orientation and states that governments should pass new laws to address the violations […]

In view of the documented violence transgender people face by security forces, the authorities in Egypt, Lebanon, and Tunisia should ensure that transgender people have equal access to legal protections and complaint mechanisms to report violations against them.”

In 2017, Batswana trans woman, Tshepo Ricki Kgositau (former Executive Director of Gender DynamiX) won her 2011 case against the Civil and National Registration office in Gaborone, Botswana to change her documentation in the national register from male to female. Read more.

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 60^th 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

In September 2016, Isaac Mwaura, a Kenyan Parliamentarian, wanted the Kenyan Parliament to pass the option of a third gender into Kenyan law in order to legally recognise intersex people. Mwaura also asked for public funding for gender-affirming surgeries and a public awareness campaign to end the stigmatisation of intersex people. Read more here.

Five transgender Kenyans sued the State of Kenya in October 2015 for refusing to process the change of names on their national identity cards. The state had processed their new passports but refused to do the same for their national identity cards. Some of these applications had been made in 2010. Audrey Mbugua of Transgender Education & Advocacy (TEA) was one of the clients represented at the trial. Read more here.

The Kenyan High Court dismissed Transgender Education & Advocacy (TEA)’s case, Misc. Civil Application 263 of 2014, filed on 10 July 2014, calling it premature, as the medical board had formed a task force to advise the Ministry of Health on the development of guidelines on the management of “transsexualism”*. TEA was ordered to pay the state’s legal fees.

The case was brought against the medical board as TEA’a Audrey Mbugua argued that the Board had failed to develop National Guidelines for the Management of Gender Identity Disorders**. Read more here.

* “Transsexualism” is a medical term, outdated in many countries.

** “Gender Identity Disorder” is no longer a term used in the Diagnostic and Statistical Manual of Mental Disorders (DSM), since 2013. The updated term is “gender dysphoria”.

The Court observed that,

“Human dignity is that intangible element that makes a human being complete. It goes to the heart of human identity. Every human has a value. Human dignity can be violated through humiliation, degradation or dehumanisation. Each individual has inherent dignity which our Constitution protects. Human dignity is the cornerstone of the other human rights enshrined in the Constitution.”

Further, the Court noted that

“the law does not require that a gender mark be imposed on a KCSE certificate. A KCSE certificate can therefore be completed without a gender mark. The Court takes judicial notice of the fact that examinations in this country are not administered based on the gender of the candidate. Marks are also not awarded based on gender. Removal of the gender mark will therefore not dilute the quality of the certificate.” High Court Judge Weldon Korir said, “These are the orders that will make the applicant complete as a human being.”

Baby ‘A’ (Suing through the Mother E.A.) & another v. Attorney General & 6 others [2014] is a landmark Kenyatta National Hospital and Kenyan High Court decision concerning intersex rights. The court ruled that an intersex child must be issued a birth certificate and ordered the government to collect intersex data and regulate medical surgery, while noting that creating a new gender marker requires legislative action.

Born in May 2009 with both male and female genitalia, Baby A received medical documentation with a question mark (?) under “sex” and was denied a birth certificate. Baby A’s mother (E.A.), the petitioner in this case, faced several challenges trying to register the birth of her baby which required a determinate sex category as either male or female — categories that her baby did not fit. As a result, her baby was not issued a birth certificate. In these cases, many intersex children are forced to undergo corrective surgery, which undermines their right to self-autonomy and brings about many other challenges later on in their adult life.

E.A. brought the case to the High Court, represented by John Chigiti, claiming that not having a birth certificate denies the baby legal recognition (suing for legal discrimination) and the ability to enjoy other rights like the right to education and Medicare care. Filed in 2013, it argued that the lack of legal identity and registration violated fundamental rights to dignity and freedom from degrading treatment. Read more about the petitioner’s case and the ruling.

Ruling:

• Right to identity: The court ordered the Registrar of Births and Deaths to register Baby A and issue a birth certificate within 90 days.
  Medical oversight: The government was directed to formulate proper administrative guidelines for conducting medical examinations and managing corrective surgeries on intersex infants.
  Data collection: Ordered official state data collection and enumeration efforts for intersex individuals.
  Limits of the judiciary: The court declined to judicially introduce a third “intersex” gender category, declaring it a policy matter for Parliament to legislate.
  

Watch our interview with intersex activist, Julius Kaggwa, about the Baby A case

Read more about intersex laws in Kenya:

• Children Act, 2022
• Legal Advocacy for Intersex Persons in Kenya by Strategic Action Litigation (SAL), Kenya
• “Intersex Persons & the Law in Kenya” by John Chigiti SC

In his ruling, Justice George Odunga stated that in failing to register TEA, the Kenyan NGO Coordination Board had acted in a manner that was “unfair, unreasonable, unjustified and in breach of rules of natural justice.” The Kenyan NGO Coordination Board was ordered to register TEA with immediate effect.