The place of legal recognition at birth in enhacing the realisation of the rights of intersex persons : a comparative analysis of Kenya and Malta

Abstract

Intersex persons are people born with indeterminate sex. The laws regulating birth registry in Kenya operates under the assumption that there are only two sexes ‘male’ and ‘female’ which are fixed and unambiguous, despite medical evidence proving the contrary. The assumption that all people fit neatly into the two binaries severely impacts on the human rights of intersex individuals since there is no provision for a third sexual category. Without a birth certificate intersex children face the risk of exclusion, discrimination, denial of certain rights, benefits, and services. This means that an intersex child will not be able to have access to national identity documents unless they identify themselves as either male or female. These documents enable one to access many services, benefits and rights which include the right to education, access to health, freedom of movement and inheritance amongst other rights and freedoms. In some cases children are forced to go through genital corrective surgery in order to exercise their right to legal recognition. Informed consent is given through their parents since the infants are incapable of consenting. However this consent is defective and does not take into consideration the views of the child, violating a number of human rights which include the right to physical and bodily integrity.This research seeks to establish that by denying intersex persons registration at birth in Kenya, devastating consequences arise which severely impact on the rights and life of intersex persons. It looks at the place of the legal recognition of intersex persons in international human rights law, the Constitution of Kenya and statutory law. The research takes a comparative approach analysing the steps taken by Malta in protecting the rights of intersex persons and show how Kenya can learn from the best practices. This research attempts to develop a model legislation that can be enacted by Kenya and other African countries to ensure registration of intersex children at birth and to enhance the protection of their fundamental rights and freedoms.