Transgender: Recognising the third gender


Who are transgender people?

During the course of my preparation for this article, a gentleman whom I met and told about what I was working on said, and I quote, that “there is nothing like transgender people. Those are hermaphrodites”. So, it is very important that we define the term.

Transgender people are people who have a gender identity, or gender expression that differs from their assigned sex. Transgender people are sometimes called transsexual if they desire medical assistance to transition from one sex to another.

Transgender is also an umbrella term: in addition to including people whose gender identity is the opposite of their assigned sex (trans men and trans women), it may include people who are not exclusively masculine or feminine (people who are genderqueer e.g bigender, pangender, genderfinder, or agender).

Other definitions of transgender also include people who belong to a third gender. Infrequently, the term transgender is defined very broadly to include cross-dressers.

Being transgender is independent of sexual orientation. Transgender people may identify as heterosexual, homosexual, bisexual, asexual etc, or may consider conventional sexual orientation labels inadequate or inapplicable.
The term transgender can also be distinguished from intersex, a term that describes people born with physical sex characteristics “that do not fit typical binary notions of male or female bodies”.

What challenges do transgender people face?

As such, the failure to define transgender people with the most befitting clarity, they are relegated to a class of people who are not readily accepted, and, thus, cast upon an insurmountable amount of challenges.

World over, transgender people routinely report – to the Human Rights Watch, for example – that they are turned down for jobs and housing when it becomes evident that their appearance does not match the gender marker on their official documents.

Transgender children and young adults face abuses in school settings ranging from sexual assault, to bullying, to being forced to attend a single-sex school or wear a uniform based on the gender marker assigned at birth.
Without identity documents that match their gender presentation, transgender people who seek health care are subjected to invasive questioning and humiliation.

In the world of travel, the stakes are rather quite high, particularly for international travel, and range from fraud accusations and subjection to intense scrutiny and humiliation.

Access to police protection and justice is problematic as well. The lack of basic recognition before the law impedes access to recourse for crimes, which is a significant problem for a population exposed to shockingly high rates of violence. Relatedly, transgender people in detention are placed in cells with persons of a gender they do not identify with, exposing them to abuse and sexual violence.

Their basic rights to freedom are violated as well. Transgender people are criminalised simply for being who they are. Laws prohibiting same-sex conduct are also used to arrest and otherwise harass transgender and gender non-conforming people – regardless of the fact that gender identity has no direct correlation to sexual orientation or sexual behaviour.

The plight of transgender people in Kenya

Kenya is a country, like most on the African continent that still harbours conservative views towards sexuality. The struggle for some transgender people to be recognised has, expectedly, been intense.

Thankfully, progress is being made. In October 2014, the BBC reported that the High Court had, by that time, given two victories to Audrey Mbugua, a notable transgender activist.

In the first, Audrey Mbugua was successful in having her name changed from Andrew Mbugua – their assigned name – to Audrey Mbugua – her new name of choice. Court gave the National Examinations Council 45 days to comply with the order to change the name on her high school exam certificate.

In the second case, which was in July of the same year, the High Court ordered the authorities to register her lobby group, Transgender Education and Advocacy, saying their refusal to do so had no legal basis and was an abuse of power.

Those were two notable achievements, not just for Audrey Mbugua, but for other transgender people, and the nation of Kenya as well. Also, they laid a wonderful transition for their – the transgender people’s current requests for legal recognition.

On Monday, June 20, 2016, the Daily Nation reported that Audrey Mbugua, the head of Transgender Education and Advocacy, had presented a memorandum to the Senate Health Committee that sought, and still seeks legal recognition of transsexuals in Kenya.

The transgender activists argue that there is a gap in the current health laws on providing sex reassignment therapy by medical practitioners among the healthcare providers. The transsexuals want sex reassignment therapy to consist of psychiatric, endocrine, and surgical procedures to bring about desired behavioural and medical outcomes. They also say that a person who wants a sex change “shall be at least 16 years of age to access psychiatric and endocrine interventions”.

The need for recognition of transgender people in Kenya

The right to recognition as a person before the law is guaranteed before the law in numerous human rights treaties, and is a fundamental aspect affirming the dignity and worth of each person.

Legal gender recognition is also an essential element of the fundamental rights – including the right to privacy, the right to freedom of expression, the right to be free from arbitrary arrest, and the rights related to employment, health, security, access to justice, and the ability to move freely.

Comparatively, a Delhi High Court ruling in October 2015 lay out the intrinsic link between the right to legal gender recognition and other rights. To affirm a 19-year-old transgender man’s right to recourse against harassment by his parents and the police, Court decided that; “gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender [person’s] sense or experience of gender is integral to their core personality and sense of being. Everyone has a fundamental right to be recognised in their chosen gender.”

The Kenyan transgender people’s request, for legal recognition, is therefore warranted, especially in a country where people who do not identify as male or female in Kenya say they have trouble getting legal documents including identity cards. As an example, Audrey Mbugua, has immigration issues and cannot vote or run for election because she does not have a national identification card and other legal documents that truly reflect her identity of choice.

To quote John Chigiti, a human rights lawyer, recognition of people who do not identify as male or female would be a gain for the community. It would reflect inclusion in democratic structures and recognise the voice of such people and enable them to enjoy public participation.

There is a dearth of legal structure that accommodates and recognises transgender and intersex people in Kenya. They are still being exposed to corrective surgeries or what is otherwise known as intersex genital mutilation.

However, a notable achievement pertaining to this cause in the most recent times was the enactment of the Persons Deprived of Liberty Bill, 2014. It provides guidelines on how intersex people arrested by the police should be handled. This includes being separated from other prisoners and choosing the gender that should search them.

Kenya could continue to make considerable progress by following in the lead of Argentina. Argentina broke ground in 2012 with a law that is considered the gold standard for legal gender recognition: anyone over the age of 18 can choose their gender identity, undergo gender assignment, and revise official documents without prior judicial or medical approval, and children can do so with the consent of their legal representatives or through summary proceedings before a judge.

The essence of legal recognition

Without legal recognition in the gender with which they identify, and associated rights and protections, every juncture of daily life when documents are requested or appearance is scrutinized becomes fraught with potential of violence and humiliation, driving many transgender people in the shadows.

Several countries, including Malaysia, Kuwait, and Nigeria, enforce laws that prohibit “posing” as the opposite sex – outlawing transgender people’s very existence. In scores of other countries, like Uganda, transgender people are arrested under notorious laws that criminalise same-sex conduct.

Outright violence is not only threat to the lives of transgender people. They are as much as (fifty) 50 times more likely to acquire HIV than the population as a whole, in part because stigma and discrimination create barriers to accessing health services. Studies in the United States, Canada and Europe have found high rates of suicide attempts among transgender people, a response to systematic marginalisation and humiliation.

Gender development should have no bearing on whether someone can enjoy fundamental rights, like the ability to be recognised by the government or to access healthcare, education, or employment. For transgender people – it does – to a humiliating, violent, and sometimes lethal degree.

If transgender people are to thrive, and if the rights to privacy, free expression and dignity are to be upheld for all, the human rights movement needs to prioritize eliminating abusive and discriminatory procedures that arbitrarily impede the right to recognition.

For many of the victims of these abuses, a future in which they may be legally recognised – and in which they will no longer risk imprisonment for being themselves – may seem far off. Yet it is precisely the persecution those individuals face that lends urgency to the struggle for legal gender recognition.

This article was originally written for our newsletter, The Deuteronomy


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