What does it mean to be intersex?

It refers to a person who is born with a body that is not typically female or male. It also refers to a person with intersex variations or variations in sex characteristics.

Intersex bodies include a broad spectrum of natural and healthy forms of human diversity in bodies

Note: The term is applied only in the context of sex and never in the context of gender

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Is intersex the third gender?

No. All humans sex differences are encompassed by the terms “male”, “female” and “intersex”.

Intersex is, however, not a third gender- It is simply an umbrella term describing a person who is born with a body that is not typically female or male - with over 40 known variations in the spectrum.

What is the difference between intersex and transgender?

Intersex and transgender people have a shared interest in autonomy and may have distinct legal needs while facing overlapping barriers to appropriate care. While intersex people are forced to undergo medically unnecessary surgeries, transgender people are often denied Gender Affirming Health Care.

Both communities grapple with a loss of decision-making authority over their own bodies.

Do intersex people all have a non-binary gender identity?

Intersex people can have any gender. Some intersex people have non-binary gender identities and some do not. Intersex people are like any other group in their diversity of identity and expression and should be afforded their right to self determination.

What is intersex Genital Mutilation (IGM)?

IGM is non-consensual, medically unnecessary, irreversible genital surgeries and other harmful mediacl treatments in order to make their sex characteristics fit the binary of male or female.

IGM refers to surgical, hormonal and other medical ways to change atypical or ambiguous genitalia and other sex characteristics to suit socila classifications of males and females.

IGM is often coerced, harmful, uninformed and medically unnecessary.

They are typically performed without the full, free and informed consent of the person concerned.

Intersex people can have any gender. Some intersex people have non-binary gender identities and some do not. Intersex people are like any other group in their diversity of identity and expression and should be afforded their right to self determination.

What is the legal framework for the recognition and protection of intersex persons’ human rights in the Republic of Kenya?

  • Intersex persons are human beings entitled to all human rights and fundamental freedoms as stated in Chapter 4 of the Constitution of Kenya [2010].

  • Article 3(1) of the Constitution of Kenya [2010] provides that every person has an obligation to respect, uphold and defend the Constitution thus empowering everyone with the legal duty to protect the rights of Intersex persons.

  • The Constitution through Article 10 states that the national values and principles of governance include inclusiveness, equality and protection of the marginalized.

  • The purpose of the Bill of Rights in the Constitution is to “preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings”.

  • Article 27 of the Constitution provides safeguards and protects against discrimination of persons based on grounds which include sex. The Constitutional Court has also re-affirmed that intersex persons have the same human rights and fundamental freedoms like any other person. As a result, everyone is to be given an opportunity to participate in society on an equal basis with other persons, for example to be issued a birth certificate without discrimination of any kind.

  • Article 28 of the Constitution states that “every person has inherent dignity and the right to have that dignity respected and protected.”

  • Article 53 of the Constitution states that every child has the right to be registered and protected from harmful practices, and that a child’s best interests are always the most important factor/consideration.

  • The Persons Deprived of Liberty Act, 2016 defines an intersex person. However, this definition is limited.

What is the estimated population of intersex persons?

  • It is estimated that between 1.7 and 3.0% of the global population is intersex. This means that there may be as many as 1,440,000 intersex persons in the Republic of Kenya.  We don’t know the exact number of Kenyans who are born intersex because this information has not been properly document at birth (hospitals), registration (education) nor collected. However the Task Force on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in Kenya is in the process of collecting disaggregated data on the number and distribution of intersex persons in the country.