The third sex marker of ‘I’ could soon be legal in Kenya after a bill to recognise intersex children in law got filed.
The bill defines an intersex child as one with a congenital condition in which the child has reproductive organs or external sexual characteristics of both male and female as certified by a qualified medical practitioner.
The bill, sponsored by the National Assembly Majority leader Amos Kimunya, would be a huge win for along drawn struggle for recognition of children who were born with binary genitalia who have been excluded in the gender classification.
The bill underwent its first reading on October 13 and has been committed to the departmental Committee on Labour and Social Services for consideration and to facilitate public participation.
The clerk of the National Assembly has called on members of the public to submit their views on the proposed legislation by November 4.
The bill titled, The Children Bill, 2021, if enacted is set to repeal the Children Act, 2001 and is aimed at aligning the legal framework that governs children's issues with the Constitution.
To safeguard this protection, the proposed law has outlawed any form of discrimination against a child on any basis including their sex, age, origin, religion, health status, tribe, language, creed among other bases.
It also provides that an intersex child who conflicts with the law shall be detained in a different establishment to protect them.
“Male, female and children with a disorder of sex development deprived of liberty shall be accommodated in separate facilities,” the bill reads.
The agitation for the milestone took shape in 2019 after a task force appointed by the attorney general and led by former Kenya National Commission on Human Rights commissioner Jedidah Waruhiu produced a report recommending a litany of law changes.
The agitation led to the inclusion of Intersex as the third sex marker in the 2019 population census.
The exercise showed there were over 1500 intersex persons spread all over the country.
Given the lacuna in the law, Intersex children face discrimination and an uphill task in getting admitted to schools.
Many drop out due to the stigma.
They have not been able to get birth certificates and other vital documents, such as national Identity cards because the boxes provided for gender only cite male and female.
Various court cases filed by different intersex people have also made courts pronounce themselves on the intersex question, building a momentum that has precipitated the proposed law.
Among other provisions of the bill include baring any court from sentencing a child to death no matter the offence for which they have been convicted.
It also gives the children the right to have parental care provided for in that context.
Edited by Kiilu Damaris