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Being Intersex : A Third Gender?

Updated on July 17, 2017
Mikal Christine profile image

Mikal is a Kenyan law student. She enjoys researching the most intriguing bits of the major legal systems in the world.

Left at Crossroads

In a world that recognizes only two genders: male and female, many people born with physical features of both genders are left at cross roads. From birth, their parents feel compelled to give them a name, an identity and to socialize them as either male or female; a decision that is informed by various factors, but unfortunately; it is not always a wise choice.

Take an example of "Mike" who, socialized from birth as a boy despite having both male and female reproductive organs, is so shocked to start menstruating, growing breasts and experiencing other feminine changes at puberty. It is a traumatizing experience as most parents do not bring up the gender subject with such children. The child has no idea what it means to be intersex as they grow up conforming to the society's expectation of the particular gender their parents told them to belong to. A question arises as to whether the law in itself discriminates against these individuals on the basis of their sex. In most countries, the law recognizes only two genders. In national identity cards and other documents, one can only be male or female. The law is silent on what one is to do in the event one is born intersex. The effect of this is that such people lack proper access to their basic human rights.

This challenge is mostly experienced in institutional frameworks. The systems are meant to cater for either of the two recognized genders and not anything in between. There have been several cases where these people get harassed by inmates when placed in prison cells upon discovery that they are transgender. An example is a case reported in Kenya where an intersex individual was suspected of theft and arrested. He had grown up identifying himself as a man. Upon being arraigned in court, the magistrate was compelled to acquit him on the ground of violation of his human rights. He had been placed in a police cell together with men who forced him to strip when they suspected that he was not a man in every sense of the word.

The only organization that attempts to champion for their rights is the Lesbian Gay Bisexual and Transgender organization(LGBT.) This organization's major focus is on the other categories and the issue of being intersex is not given much importance. The organization is challenged by lack of legal backing and ignorance in the society on the implications of being an intersex individual and the struggle that comes with it.

Another case in point, recently, a baby we may call "Joyce", filed a suit in the High Court of Nairobi, Kenya through its advocate. The question for determination was whether the baby should be allowed to grow up first then choose its own gender or whether to remain as it was born intersex as opposed to the parents choosing a gender and going ahead to have corrective surgery performed on the baby. A church organization came out strongly to oppose the case and cited as a reason for the opposition that it was against the bible for one to choose one's own gender or to even introduce a third gender. The organization also argued that from creation God created human beings as only male and female and that it would be against the order of nature to attempt to produce a third gender or to even choose one's own gender.

A Third Gender Exists!

Some human rights activists have countered the position of the church by arguing that it is the same God who created that person intersex. Would having them undergo corrective surgery without their consent be challenging nature?

Most jurisdictions have found a way to go about it while at the same time protecting the rights of these individuals. The Supreme Court of India on the15th day of April 2014 made a landmark decision in this area in the case of National Legal Services Authority versus Union of India and others. The case was filed by an organisation that was fighting for the rights of the intersex community who felt that they were deprived of their rights and privileges enjoyed by all the other citizens. The issues of determination were that they should be allowed to decide their own gender or to be recognized as a third gender. The court held that the determination of gender was to be left to the individual and also recognized the existence of a third gender.

A person born intersex should have the freedom to decide whether to have corrective surgery and to identify with a particular gender or to remain intersex and be recognized as such and have their rights protected.

This is a wake up call to society to stop shunning intersex people, and like any other minority group, protect them and help them embrace and appreciate what nature has offered them.


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