Kenyan Lawsuit Filed Over Intersex Legal Recognition and Protection from Cosmetic "Treatment"

Kenya's second-ever lawsuit concerning intersex issues has been filed. An intersex individual referred to as Baby A is suing Kenyan authorities for 

1) legal recognition of intersex individuals, and 

2) the right of intersex children to not have cosmetic, "corrective" surgery unless it is court-ordered.

Because Baby A is intersex, this individual doesn't have one of the most basic forms of legal recognition: a birth certificate. At the Kenya National Hospital where Baby A was born, records denote the child's sex with a question mark, instead of an M or an F. As a result of authorities not recording M or F, a birth certificate was never created for Baby A.

Baby A's lawyer, John Chigli notes the damage of never being issued a birth certificate: “The birth certificate is of great legal importance to the life and development of a child given that it is ticket to school admission, issuance of passport, national identity card and employment."

Baby A will be legally denied these opportunities until KNH hospital administrators issue A a birth certificate.

The lawsuit is also seeking to prevent "corrective" surgeries on intersex children unless it is court-ordered. The wording of this portion of the lawsuit is worrisome, in that not all non-consensual "treatments" for intersex children are surgical. Some procedures, like vaginal dilation, are not surgical, but are still cosmetic in nature, and can serve to physically and psychoemotionally harm children that undergo them. I also hope that the lawsuit denotes that corrective surgeries do not just include altering the external genitals, but also the removal of internal sex organs. I think that intersex surgery is still largely equated with external genitals only in popular understanding, but protections against removal of internal sex organs should not be done without the intersex persons's consent, either.

Finally, I am wondering about the phrase "unless it is court-ordered." It seems like this could be a convenient legal loophole, where it could become common practice to just court-order surgery/"treatment" for every intersex person born in Kenya, or actually create new legislation making it legal to perform these treatments, and side-stepping the need to court-order treatment for each individual case. By what standards would one determine whether surgery/"treatment" should be court-ordered? What cases should be court-ordered, and which shouldn't?

I think that more legislation fighting for intersex rights and protection is necessary. I would encourage those filing this lawsuit, however, to consider whether allowing for the possibility of governing bodies to court-order intersex surgery will really be solving the problem, or simply creating more legislation and legal ways to actively change the bodies of intersex individuals without our consent.

I don't want a court system to have any say in what is done to my body. I applaud Baby A's efforts in filing a lawsuit, but hope that in court, what is fought for is intersex individuals' right alone in deciding which of our own body parts we are allowed to keep, and not other authorities who can legally court-order our body parts away without our consent.

We deserve better than that.

Thanks to Full Frontal Activism and Georgiann Davis for alerting me to this case!

The baby was born at KNH on May 3, 2009 with both male and female genitalia.

The hospital officials could not record the sex of the child in question as female or male and ended up putting a question mark as Baby A’s sex.

This entry on the child’s medical record offends the right to legal recognition and erodes dignity and the child’s rights, the court was told.

Baby A has never been issued with a birth certificate, a document that gives legal recognition to an individual.

“The birth certificate is of great legal importance to the life and development of a child given that it is ticket to school admission, issuance of passport, national identity card and employment,” the suit papers filed through lawyer John Chigiti read in part.

And as a result of lack of legal recognition intersexual children live in fear of assault, abuse, inequality, exclusion and without dignity in a legal regime that has nothing for them making it impossible to collate data around them.

Baby A also says intersex children are unable to enjoy all the rights accruing to them as citizens.

Baby A says for intersex children to enjoy rights guaranteed under the constitution to all Kenyans there is need to come up with code or regulations that directly or indirectly govern corrective surgery for intersex children.

The court was told that corrective surgery is intrusive in nature and hence the need for the child’s meaningful participation in decision on what sex should be assigned.

“This calls for child’s meaningful participation in the decision making process and the child’s consent whenever the surgery is not informed by a medical emergency.”

The baby wants the court to allow use of pseudo name in the case and hear it in camera.

Baby A’s case is the second to be filed in the country seeking legal recognition for intersex. The first one was filed by Richard Muasya, whose case was dismissed by a constitutional court.