Gender vs Sex; Does Ruto's recognition of girls or boys leave out intersex persons?

“It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality,” Trump declared on his first day in office. 

The declaration has since sparked debate on whether it excludes intersex persons – whose reproductive or sexual anatomy that doesn't fit into an exclusively male or female classification. 

In support of the executive order, Kenya’s President William Ruto on Sunday emphasized that Kenya recognizes only two sexes, sparking a wave of discussions around the intersection of gender and sex. 

The President’s stance has raised concerns, especially among intersex advocates, who believe that the recognition of genders should go beyond a binary framework.  

“Kenya recognizes three sexes by law: male, female, and intersex, as outlined in the Children Act 2022 and the Registration of Persons Act,” says Commissioner Dr. Dennis Wamalwa of the Kenya National Commission on Human Rights (KNCHR). 

He notes that these legal frameworks represent significant progress in acknowledging the existence and rights of intersex persons. 

However, “there is no legal recognition of non-binary, gay, lesbian, or transgender identities.” 

Wamalwa further argues that the Attorney General and KNCHR must advise the Head of State on the recognition of intersex as a third marker, as recent remarks by the President emphasizing only two genders may stem from a lack of understanding of these new laws. 

“Such remarks risk clawing back the significant strides Kenya has made in promoting the rights and recognition of intersex persons.”

“While the KNCHR is mandated to protect the rights of all individuals in Kenya without discrimination, legal limitations may restrict the promotion of certain rights,”Wamalwa explains.

He points out that the Marriage Act, informed by Article 45(2) of the Constitution, only recognizes unions within heterosexual relationships. Wamalwa emphasizes the need for informed leadership to ensure Kenya does not regress on the gains made in advancing the rights of intersex individuals, urging the government to uphold inclusivity and align with the evolving legal and policy framework.

His sentiments have been echoed by various human rights advocates, emphasizing the need for informed leadership on this matter. 

Milka Wahu, a lecturer at Jomo Kenyatta University of Agriculture and Technology (JKUAT) and an advocate for intersex rights through the Amka Africa Justice Initiative, stresses that this oversimplification risks undermining the complexities of gender identity and expression.

“Gender and sex are not the same,” Wahu explains. “Sex refers to the biological attributes such as chromosomes, hormones, and reproductive organs, which traditionally define someone as male or female. Gender, however, is a social construct that encompasses the roles, behaviors, and identities that society assigns to individuals based on perceived sex characteristics.” 

Wahu further highlights that while sex is often categorized at birth, gender identity is more fluid and can evolve over time.

Wahu’s work, both as an educator and advocate, is rooted in the understanding that societal norms and expectations often fail to account for the diversity of human experiences, especially for those who do not fit neatly into the binary system of male and female. 

She continues to raise awareness about the challenges that intersex individuals face, particularly the stigmatization and discrimination they encounter due to their biological differences.

The push for a more inclusive understanding of gender is not just theoretical. Wahu works tirelessly to raise awareness and advocate for the rights of intersex individuals—those born with sex characteristics that do not fit typical definitions of male or female. 

These individuals often face discrimination and medical intervention aimed at "correcting" their bodies to fit societal expectations.

“Intersex children are often forced to undergo surgeries that align them with one gender or the other,” Wahu notes. 

“These procedures, which are typically performed without the child’s consent, can have long-term physical, psychological, and emotional consequences. What is often ignored is the child’s autonomy and right to make decisions about their own body.” 

The medical and societal pressure to "normalize" intersex bodies not only disregards the individual’s agency but also perpetuates harmful stereotypes and practices.

Intersex people, Wahu points out, often fall through the cracks of legal and social frameworks that are rigidly built around a binary system. 

“By acknowledging only two genders, we continue to perpetuate exclusion. Kenya’s laws and social structures need to evolve to protect the rights of intersex people and recognize their unique identity,” she states.

The recent remarks made by President Ruto, in which he dismissed the existence of non-binary genders, reflect a narrow view that does not account for the lived realities of intersex individuals. According to Wahu, this view threatens to undo the gains that have been made in advocating for the recognition and rights of intersex people in Kenya.

Wahu references the significant strides that have been made in the legal and social recognition of intersex persons in Kenya, citing the landmark BBA case and the establishment of a task force to address the issues faced by intersex individuals. 

“The government, through this task force, has done research, collected data, and made recommendations that have led to the inclusion of intersex persons in the 2019 census,” she says. “This was a major step forward in acknowledging their existence and ensuring they are counted and recognized as part of the population.”

Moreover, the Children Act of 2022, which was amended to include intersex children as a category of sex, marked another critical development in the legal recognition of intersex individuals. 

“For the first time, Kenya legally recognizes that intersex children exist and that their rights need to be protected,” Wahu notes. This legal recognition has paved the way for greater advocacy and has helped bring attention to the specific needs and challenges faced by intersex persons.

Despite these advances, Wahu acknowledges that much work remains to be done. 

Intersex persons in Kenya continue to face significant challenges, including barriers to accessing healthcare, education, and employment. 

“Intersex individuals still struggle to access proper medical services because of their sex characteristics. These challenges are compounded by societal stigma and discrimination, which often leads to exclusion and marginalization,” she explains.

One of the most pressing issues is the way in which intersex children are often forced to fit into societal categories that do not reflect their lived experience. 

“In many cases, intersex children are classified as either male or female at birth, and this classification dictates how they are treated throughout their lives. This rigid classification often leads to confusion, conflict, and trauma for intersex individuals as they grow and develop,” Wahu says.

Wahu highlights the situation of intersex children who undergo surgeries intended to align their bodies with one sex or the other. 

“Sometimes, when an intersex child is assigned a male gender at birth, they may undergo surgery to make their body conform to the male sex,” she explains. 

“But as they grow older, they may experience puberty differently, and the consequences of these surgeries can become more pronounced. For example, a boy who has been assigned a male gender may start menstruating because their internal reproductive organs are female. This can create significant psychological, social, and emotional distress.”

The experience of intersex individuals is often marked by a sense of disconnection between their biological reality and the gender they are assigned at birth. 

“Many intersex people are forced to live in a state of confusion and conflict because their legal documents—such as birth certificates and national IDs—do not reflect their physical reality,” Wahu points out. “This discrepancy can lead to legal and social challenges, including difficulties in accessing services, obtaining employment, and being recognized for who they truly are.”

The legal recognition of intersex persons, however, remains inconsistent, and in some cases, intersex individuals may face discrimination in the workplace or in public life. “Imagine an intersex person who has managed to find employment in the public or private sector,” Wahu says. “What happens when their gender identity is questioned, and their legal documents do not match their physical appearance? Are they going to be fired or marginalized because they do not fit into the prescribed gender categories?”

This is a crucial question that highlights the importance of ensuring that intersex individuals are recognized and protected in all areas of society, including employment, healthcare, and education. 

Wahu believes that Kenya’s laws must evolve to provide greater protection and recognition for intersex individuals. 

“We need laws that are inclusive and that protect the rights of all individuals, regardless of their gender identity or sex characteristics,” she states.

In her advocacy for intersex rights, Wahu underscores the importance of recognizing and respecting the diversity of human experiences. 

As Kenya continues to navigate the complex issue of gender and sex, it is essential that the conversation remain inclusive and informed by the realities of intersex individuals. “The fight for the rights of intersex persons is far from over,” Wahu asserts. 

“We must continue to advocate for a society that is inclusive and that recognizes the full spectrum of human diversity, where everyone’s identity is respected and protected.”

For Wahu and other organizations, the work continues to create an inclusive society where intersex individuals are not marginalized or excluded but are embraced for who they truly are.