A proposed bill could open the door to broader definition of intersex amid a sustained agitation for wider inclusion.
Intersex is a person born with both male and female genitalia, whereas a transgender is one who is transiting from one gender to another through hormonal therapy.
The Criminal Procedure Code (Amendment) Bill, 2023 widens the definition of intersex to spring from a certification by a trained health professional who must take into account the gonadal, chromosomal and hormonal dynamics in the whole equation of sex determination.
“Intersex person” means a person whom a trained health professional has certified to have been born with sex characteristics, including genital, gonadal, chromosomal and hormonal patterns, that do not fit typical notions of male or female bodies,” the proposed law says.
Legal pundits argue that the definition is broad and can be leveraged upon with different interpretations to cover various concepts, including transgenderism as long as a doctor declares that their transition is born of out natural hormonal activity.
There has been sustained agitation to formally recognise intersex as the third gender with gender marker I.
A huge progress was made in 2019 when the national population census included it aside from the binary options of male and female as the third option.
The campaign at the time was championed by the Kenya National Commission of Human Rights and it led to various legal processes that involved formation of a task force by the Attorney General to consider law change to formally enshrine the third gender.
But the understanding of the intersex concept is that it’s a natural phenomenon in which a person is born with both male and female genital organs.
Human rights activist John Chesoni told the Star, if not well explained, the broad definition could see extreme liberal actors hijack the cause of the intersex campaigners to mainstream gender transition ideology.
The proposal is also expected to inject fuel to the controversy already stoked by the decision by the Supreme Court that allowed sexual minority groups to be formally registered.
The decision by the court relied on article 27(4) of the constitution that many critics have said broadened the definition of sex to include sexual orientation.
The article reads that: “the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”
The stance of the court drew ire of lawmakers like Peter Kaluma, who argued that it was a nod to LGBTQ sexual activity in the country and assault to the family unit.
He tried to apply to challenge the decision but it was thrown out.
““We must get the court to reaffirm the position of our society that sex means and must only mean the biological state of being male or female as observed at birth, excluding foreign sexual orientation and gender identity ideologies,” the Homa Bay Town MP said.
He has since drafted a bill which “once enacted into law will enable representatives of the people in Parliament to forbid the push to introduce homosexuality in our country at once,” he said.
After the blow he suffered at the apex court, the vocal MP has written to speaker Moses Wetangula proposing an amendment to the Constitution to repeal Article 259 (4) of the Constitution and to define “sex”.
“This will seal constitutional gaps the courts are relying upon to introduce homosexuality in the country under the guise of judicial interpretation,” he said.
The criminal procedure code bill also widens the definition of disability, including intellectual and psychosocial disability.
“Intellectual and psychosocial disability” means a condition where a person has problems with general mental abilities that affect the person’s intellectual functioning in learning, understanding, problem solving, judgment and adaptive functioning in daily activities including communication and independent living," it reads.