The opposite sex for the intersex person; assumption of binary in Kenya’s Constitution

Author: Esther-Blessing Nasimiyu
Student, Kabarak Law School

The 2010 Constitution of Kenya is notable for recognising the family system through the provision of the right to marry in article 45(2).^[1] For ease of reference, article 45(2) provides that every adult has the right to marry a person of the opposite sex, based on the free consent of parties. The sub-article’s phrasing breeds a significant complication due to the insertion of the term ‘opposite sex’. This is a blatant disregard of the existence of Kenyan adults who cannot conform to either gender due to being intersex.

Equality, inclusion, non-discrimination and protection of minorities are some of the core values outlined in the constitution.^[2] However, they all lack meaning in the wake of the binary assumption that is nurtured in constitutional confines. My focus is centered on inclusiveness as a national value and a fundamental principle that rightfully applies to all Kenyans whether male, female or intersex.

The question that arises from the wording of article 45(2) is hardly an easy one. If every adult has the right to marry someone of the opposite sex, what then would be the opposite sex for an intersex adult?

It is indisputable that the scripting of article 45(2) was plagued with the binary assumption. We cannot pinpoint the drafters’ thought process in jotting down a contradicting statement and as a result, we are compelled to make assumptions.

The drafters may have worded the article deliberately assuming the binary existence. Secondly, they may have desired to eliminate same-sex marriages in Kenya by cementing the provision in a fundamental framework. Either way, intersex persons became the unwarranted victims of this article through exclusion. They were involuntarily lobbied into the same group as other sexual minorities. This move was and remains to be unjustified to the thousands of intersex persons as it violates their right to inclusion.

The Kenya National Commission on Human Rights (KNCHR) describes intersex persons as human beings whose physiological characteristics cannot be classified exclusively into the binary concept of male and female.^[3] An intersex person can also be described as one who is conceived with a biological sex characteristic that cannot be exclusively categorised in the common binary due to their inherent and mixed anatomical, hormonal, gonadal and chromosomal patterns.^[4]

Therefore, the binary assumption can be described as the belief in the existence of the two sexes only. According to Pikramenou, society is based upon the hetero-normative gender order based on the idea that there are two opposite sexes without regard for the people who fall out of the rigid and dualistic system. ^[5] This simple ‘error’ has been overlooked for far too long. Affirming that every adult has the right to marry a person of the opposite sex without considering the opposite sex for the intersex person is preposterous.

The binary assumption does not exist in a vacuum as law is best described as society’s mirror.^[6] Consequently, the wording of article 45(2) in simple terms is a reflection of society’s attitude. Despite the law providing for equal treatment and non-discrimination, the society at large deliberately does the opposite where intersex persons are concerned.

The effects of the binary assumption are to a large extent negative. Someone who cannot conform to either sex is described as an anomaly that is not supposed to exist and often times deemed to require ‘correction’. The binary system turns them invisible.^[7] The Baby A^[8] case is an apt example of this assertion. The child’s birth could not be registered since doctors at Kenyatta National Hospital (KNH) placed a question mark on her gender because of her ambiguous genitalia at birth. Although the High Court ordered the registration of the child, this case highlights the challenges faced by intersex persons in the absence of the recognition of any gender beyond the binary of male and female.

The absence of recognition of intersex as a separate sex category has over the years resulted in the violation of the rights of intersex persons at will. In certain areas, intersex persons are murdered as society brands them outcasts.^[9] Their rights to life, basic education, free and equal treatment as well as freedom from discrimination are infringed on a daily basis.

Six decades ago, Robert B Edgerton conducted the first study on intersexuality in Kenya among the Pokot people in 1964. He stated that physicians and parents were enjoined to discover which of the two sexes the intersex person most appropriately belonged to in order to help the ambiguous ‘it’ become a partially accepted him or her.^[10]  In today’s society, intersex persons are ostracised and forced into genders they do not manifest later in life without regard to the negative impact on their dignity and rights. All these are done because society makes them feel unwanted and casts them as nature’s errors that ought to be corrected. They are considered misfits in the biological sense, hence have to be altered.

In conclusion, the binary assumption that is grounded in our societies and reflected in the Constitution that cements values of fairness and equality is concerning. Our continued silence and deliberate disregard for the same implicates us in the baptism of invisibility accorded to intersex persons through binary assumption. Indeed, article 45(2) is in dire need of reform as it not only joins society in making this assumption but also spurs them on without regard for the rights of the thousands of intersex persons in Kenya.

^[1] Constitution of Kenya (2010), article 45(2).

^[2] Constitution of Kenya (2010), article 10 (2) (b).

^[3] Kenya National Commission on Human Rights, Equal in dignity and rights, promoting the rights of intersex persons in Kenya, https://www.knchr.org/our-work/special-interest-groups/intersex-persons-in-kenya on 29 April 2023.

^[4] Kenya Law Reform Commission, Report of the taskforce on policy, legal, institutional and administrative reforms regarding intersex persons in Kenya, 10 December 2018, https://www.klrc.go.ke/index.php/projects/on-going-projects/612-taskforce-on-policy-legal-institutional-and-administrative-reforms-regarding-intersex-persons-in-kenya on 4 April 2023.

^[5] Nikoletta Pikramenou, Intersex rights: living between sexes, Springer Nature Switzerland AG, 2019, 1.

^[6] Brian Tamanaha, A general jurisprudence of law and society, Oxford University Press, Oxford, 2001.

^[7] Pikramenou, Intersex rights :living between sexes, 2.

^[8] Baby A (Suing through the mother E A) and another v AG and 6 others, Petition 266 of 2013, Judgment of the High Court of Kenya at Nairobi, 4 December 2014, (eKLR).

^[9]Kenya National Commission on Human Rights, Intersex Persons in Kenya, KNCHR, https://www.knchr.org/our-work/special-interest-groups/intersex-persons-in-Kenya on 29 April 2023.

^[10] Robert B Edgerton, ‘Pokot Intersexuality: An East African example of the Resolution of Sexual Incongruity’ 66(6) American Anthropologist (1964) 1290.

About the Author:

Esther-Blessing Nasimiyu is a second-year law student at Kabarak Law School and an associate editor of the Kabarak Law Review. She has a penchant for human rights and children’s rights in particular, and generally loves research, writing and advocacy.