NAIROBI (TrustLaw) - South African teenage runner Caster Semenya spent two hours lying with her legs in stirrups so doctors could photograph her genitals to decide whether she was a man or a woman.
Such humiliation is a common experience for intersexuals, who are born with both male and female genitalia. And Semenya’s case is not unusual – one in 4,000 babies is sexually ambiguous at birth.
In Kenya, lawyer John Chigiti is committed to winning legal recognition for intersex people and protecting their rights.
Chigiti’s first case was that of Richard Muasya, who was being held in a male prison where he had been sexually harassed by inmates and staff.
Muasya was awarded 500,000 Kenyan shillings ($6,000) for inhuman and degrading treatment. But the judges refused to provide alternative facilities for him.
Even worse, they refused to acknowledge the challenges faced by intersexuals due to their inability to get birth certificates, which require recognition of male or female gender.
The court argued that acknowledging a third sex would open the floodgates to homosexuality, which is illegal in Kenya.
“We are not persuaded that there is (a) definite number of intersex persons in Kenya as to form a class or body of persons in respect of whose interest the petitioner can bring a representative suit… his case must be treated as an isolated case,” the judges said.
Muasya’s case is on appeal, and Chigiti is determined to fight on. He is now representing eight intersex people.
His next case is that of a three-year-old child whose parents want to perform surgery to assign the child a recognised gender.
Traditionally, doctors have been quick to perform hush-hush “corrective” surgery.
“Some parents are even willing to sell their body organs to meet the corrective surgery costs for their intersexual children,” said Chigiti.
But this has proven extremely damaging. Many intersex adults say their lives have been scarred by the operations they underwent as babies.
They often feel confused about their gender identity, even if they don’t know they were born intersex. Some attempt suicide.
The Lancet journal found that those who were left as nature made them fared as well, if not better, than those who had undergone an operation. Being themselves was more important than fitting in with society’s idea of normality.
“I am looking into the possibility of generating guidelines where such surgeries will only be done with the authority and leave of the court after hearing all sides and issues around the operation from doctors, experts and human rights experts, the child and the parents. This is the only way to realise the best interest of the child,” Chigiti said.
Chigiti spoke to TrustLaw about his commitment to providing pro bono legal services to intersexuals.