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Landmark Kenya intersex rights law takes effect

Activists praise Children Act 2022

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The Kenyan flag (Photo courtesy of Rarrarorro via Bigstock)

NAIROBI, Kenya — A new law that took effect late last month in Kenya has granted equal rights and recognition to intersex people 

Intersex people are now recognized as Kenya’s third gender with an ‘I’ gender marker in response to the Children Act 2022. Kenya is the first African country that has granted the intersex community this universal right.

The new law requires intersex children to be treated with dignity and have equal access to basic services like medical treatment and education, in addition to social protection services as a special need. It also requires the accomodation of intersex children in child protection centers and other facilities.

Courts are also required to consider the needs of intersex children who are on trial — including the calling of an expert witness — before they issue any ruling. The law further stipulates that anyone can be a foster parent without restrictions of gender, age or marital status.

It also protects intersex children from so-called sex normalization surgeries, and such procedures will only be done with a doctor’s recommendation. Those who violate the law will face at least three years in jail and a fine of at least $5,000.

“This is a great and major milestone globally for Kenya. We are now way ahead and can teach our neighbors and the whole globe good practices,” said Jedidah Wakonyo, a human rights lawyer and former chair of the Intersex Persons Society of Kenya

The long journey for recognition started dramatically in 2006 when some human rights organizations petitioned courts about a detainee who had been accused of a violent robbery.

Authorities perceived the suspect was a man after police strip-searched him before he entered prison.

This followed numerous court battles by intersex people who demanded the right to recognition as another gender in their birth certificates.

Being denied birth certificates from the discriminatiory law that only recognized male and female genders further limited their access to national identity cards, passports and other crucial documents and government services.      

The Births and Deaths Registration Act under the new law’s Section 7 (3) “shall take measures to ensure correct documentation and registration of intersex children at birth.”    

Intersex people commonly have a combination of male and female gonads (ovaries or testicles) or ambiguous genitalia. 

Wakonyo, who also chaired the Intersex Persons Implementation Coordination Committee and was named the International Court of Justice’s 2020 jurist of the year, describes the law’s enactment as a historic moment because of its comprehensive definition of an intersex person.

It defines an intersex child as “a child with a congenital condition in which the biological sex characteristics cannot be exclusively categorized in the common binary of female or male due to inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns which could be apparent before, at birth, in childhood, puberty or adulthood.”

Kenyan law considers anyone under 17 to be a child.

“Defining an intersex from a child’s perspective while taking care of many aspects and not just the physical notion of being intersex is the best practice because in future they don’t find themselves in the state of gender confusion between males and females like the current situation,” stated Wakonyo. 

This provision essentially protects intersex persons from being deprived of their constitutional rights of gender recognition under the country’s Bill of Rights.

Veronica Mwangi, the deputy director at Kenya’s National Commission on Human Rights, that helped secure the law’s implementation, said it addresses issues for which the intersex community has been fighting for years.    

“It is very progressive and we are glad about the gains because it provides for the existence of the intersex which all state actors have to accept. Full implementation is what we now need to focus on,” she said.

The law took effect roughly five years after Kenya became the first African nation and the second country in the world after Australia to count intersex people in a Census. The 2019 survey showed 1,524 Kenyans were intersex.

Intersex rights groups had initially petitioned the courts for a total ban of surgeries on intersex children unless they were a medical emergency.

Wakonyo backs the provision for a doctor’s approval on grounds that the surgeries will only be done “in the best interest of the intersex child, informed consent of the parents and the participation of the child depending on the age.” Wakonyo and other activists say the relaxation of the requirements for adopting intersex children not only seeks to end the problem of neglect and abandonment but also the stigma that has left some to die by suicide.

The law safeguards adoptive parents’ rights and parental responsibility and intersex children from child labor, online expuse and other forms of exploitation.

“Intersex children who are just like other children will no longer be killed at birth because of their gender ambiguity,” said Wakonyo.   

Despite the law’s huge benefits for the intersex community, Wakonyo notes it is a “very significant foundation” for the group because gender-specific accommodations in social gatherings and facilities remain needed.

Another historic win for intersex Kenyans this year was the Kenyan National Commission on Human Rights’ decision to hire an intersex commissioner.

“Dr. Dennis Wamalwa applied as an intersex (person), interviewed as an intersex (person), and the shortlist comprised male, female, and ‘I’ gender for intersex. He emerged (at the) top and his intersex friends and associates came to witness his swearing,” stated Wakonyo, who also served as a Kenyan National Commission on Human Rights commissioner.

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Africa

Zambia president reiterates opposition to LGBTQ+, intersex rights

Hakainde Hichilema made comments in response to anti-LGBTQ+ protest

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Dr. Brian Sampa has organized protests against LGBTQ+ and intersex rights in Zambia. (Photo via Dr. Brian Sampa's Facebook page)

LUSAKA, Zambia — Zambian President Hakainde Hichilema on Monday reiterated his government does not support LGBTQ+ and intersex rights.

In a video posted to his Facebook page on Monday, Hichilema said Zambia is a country deeply rooted in Christianity and therefore does not support same sex relations. The president’s remarks came after Dr. Brian Sampa on Sept. 15 held an anti-LGBTQ+ rights protest.

The police stopped Sampa’s protest, which was to have taken place at the State House in Lusaka, the country’s capital. Officers said he did not have the necessary permits and told him and the handful of other protesters to instead approach the country’s Gender Ministry.

“Zambia is a Christian nation it’s clear! We all agree, but sometimes we want to extract sections of our communities and say these are not Christians. Religion in diversity. Churches in diversity but one body of Christ and I want to say it is not right,” said Hichilema in his video. “I have been following what is happening in the country and to say that the new dawn government is promoting lesbian rights or gay rights that is not right. We have said it before in opposition and now in government that we do not support gay, lesbian rights as a government.” 

“The records are there,” he added. “The media houses carry those records from years back but now in the last recent days people are propagating in churches preaching about lesbian rights that is divisive you know, the new dawn government this and that it’s not right let’s focus on unity, let’s focus on materiality, things that matter for this country, our children keeping them in school matters more than the peripheral petty side of a divisive behavior.” 

Sampa, meanwhile, has said he will be leading another anti-LGBTQ+ protest under the banner #BanNdevupaNdevu (#BanBeardonBeard) on Sept. 28. He said he plans to deliver a letter to the State House pertaining to what he labelled “the rise in unnatural acts like homosexuality.”

“Our fight is non-political. It’s for Zambians regardless of your color, creed, religion or political affiliation,” said Sampa on Facebook. “The president needs to be making it clear to those ambassadors from some countries our stance about homosexuality. Here we chase ambassadors who support homosexuals because it’s criminal under our constitution. The government has got power to end all this, but we are lacking political will against homosexuality. Use the law to the latter.”

“Parents make time to talk to your children and visit them in boarding schools,” he added. “Male boarding schools are no longer safe. The homosexuals are sodomizing children as they initiate them into this bad vice.”

Sampa also posted to Facebook a picture of a bed with what appears to be human feces on sheets. Sampa said it was a result of too much anal sex and cautioned that heterosexuals should be concerned if their partner wants to engage in it.

“Before you join them no matter the amount they will offer you, remember this picture. This is a picture of a bed used by a person with fecal incontinence due to anal sex what you are seeing are feces leaking from the anus because the sphincter muscle is destroyed due to anal sex,” he said. “This is an example of a male-to-male relationship. Don’t be deceived; the anus is not a sexual organ. Would a normal person be happy to dip their penis in feces? Nobody enjoys the smell of feces unless there is some psychological problem.”

“For ladies, how to know that you are dating a homosexual,” added Sampa. “If the guy keeps demanding for anal sex make sure you report him to the police.”

Zambia criminalizes same-sex sexual activity between men and between women. Sentences include a maximum penalty of 14 years in jail.

A court in 2019 convicted two gay men of engaging in same-sex sexual activity and sentenced them to 15 years in prison. They received a presidential pardon in 2020 amid international pressure, but reports of discrimination and violence against LGBTQ+ and intersex Zambians remain commonplace.

Daniel Itai is the Washington Blade’s Africa Correspondent.

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Africa

Kenya president-elect says LGBTQ+, intersex rights ‘not a big issue’

Homosexuality remains criminalized in former British colony

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Kenyan President William Ruto (Screen capture via Citizen TV Kenya YouTube)

NAIROBI, Kenya — The president-elect of Kenya last week told CNN’s Christiane Amanpour that LGBTQ+ and intersex rights are “not a big issue” in his country.

“We don’t want to create a mountain out of a molehill,” William Ruto told Amanpour during a Sept. 7 interview. “This is not a big issue for the people of Kenya. When it becomes a big issue for the people of Kenya, the people of Kenya will make a choice.”

Ruto spoke with Amanpour days after the Kenyan Supreme Court declared him the winner of the country’s Aug. 9 presidential election. Ruto’s inauguration will take place in Nairobi, the Kenyan capital, on Wednesday.

The Children Act 2022, a law that granted equal rights and recognition to intersex people in Kenya, took effect in July. Consensual same-sex sexual relations nevertheless remain criminalized in the former British colony.

Amanpour noted to Ruto that outgoing President Uhuru Kenyatta previously said there is “no room for homosexuality in Kenyan society.” 

Ruto said his predecessor “was spot on.” Ruto also noted youth unemployment and hunger are his top priorities.

“That is my concern. That is the focus of the people of Kenya at the moment,” said Ruto. “When the issue you have discussed about homosexuality and the rights of LGBT (people) will come, the people of Kenya will make a choice and we will respect the choice of the people of Kenya. For now, Christiane Amanpour, let us focus on the real issues that affect our people.”

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Africa

Rwanda criticized over exclusion of LGBTQ+, intersex people from Census

National count scheduled to end on Tuesday

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(Graphic courtesy of Pan Africa ILGA)

KIGALI, Rwanda — Activists in Rwanda have criticized the government over the lack of inclusion of LGBTQ+ and intersex people in the country’s national Census.

The current Census does not specifically count LGBTQ+ and intersex people or include them in the questionnaires. Activists have criticized this exclusion, especially with the fact that Rwanda does not criminalize homosexuality.

“2SLGBTQIA+ people, like other minorities and vulnerable groups, face disparities in economic status, health and housing,” said Human Rights First Rwanda Association, an organization based in Kigali, the Rwandan capital, that promotes the rights of LGBTQ+ and intersex people and other marginalized groups. “The government normally plans its long-term policies more especially in health matters and other issues depending on the vulnerability and marginalization from the number of its populace and also through conducting surveys including census. Thus, collecting data on sexual orientation and gender identity helps identify what those specific disparities are, which is a crucial first step in addressing those disparities in the long run and that’s why some 2SLGBTQIA+ community members in Rwanda allude to the importance of this exercise and their inclusion.” 

The Human Rights First Rwanda Association said the Census questionnaires were broad, even though the government recognizes the LGBTQ+ and intersex community faces specific issues.

“The government recognizes the fact that 2SLGBTQIA+ issues exist but they did mention that the census questions had been tested to include issues of health and housing to a specific group but rather said continuous surveys would be conducted to collect data on particular groups like persons living with disabilities including those with intellectual disability, hard of hearing and other vulnerable groups including the 2SLGBTQIA+ groups who are different from others,” added the Human Rights First Rwanda Association.

The group acknowledged same-sex couples will not receive marriage rights in Rwanda anytime soon, but it did note it remains engaged with various government agencies to ensure people who are LGBTQ+ or intersex receive the same rights and protections that heterosexuals receive.

“The Rwanda Family Law only recognizes marriage of a man and woman and also does not provide for any other types of marriage,” said the Human Rights First Rwanda Association. “Same sex relations to be legalized may take time through the Rwanda law reform commission and advocacy on changes of laws, it could eventually allow and remove that clause that only recognizes marriage to be of a man and a woman and maybe include other forms of consensual relationships and marriages. This calls for a long-term advocacy agenda from civil society organizations and in particular the 2SLGBTQIA+ community.”

“Nevertheless, change comes gradually,” added the organization. 

Human Rights First Rwanda Association since 2006 has joined other NGOs in opposition of efforts to criminalize homosexuality in Rwanda. Rampant discrimination and abuse based on sexual orientation and gender identity forces many LGBTQ+ and intersex Rwandans to remain in the closet.

“The process of reducing victimization on 2SLGBTQIA+ requires concentered and continued efforts and engaging various stakeholders such as the Ministry of Justice, (the) Rwanda Human Rights Commission; Ministry of Health, Ministry of Gender and Family; (the) Gender Monitoring Unit; international development partners; faith leaders and including mainstream NGOs and 2SLGBTQIA+ organizations working together to change the mindset of the populace,” said Human Rights First Rwanda Association. “This can be done through dialogue meetings and continuous sensitization campaigns and also empowering sexual minorities to be their own self advocates.” 

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