Kenya's second-ever lawsuit concerning intersex issues has been filed. An intersex individual referred to as Baby A is suing Kenyan authorities for 1) legal recognition of intersex individuals, and 2) the right of intersex children to not have cosmetic, "corrective" surgery unless it is court-ordered.
Because Baby A is intersex, this individual doesn't have one of the most basic forms of legal recognition: a birth certificate. At the Kenya National Hospital where Baby A was born, records denote the child's sex with a question mark, instead of an M or an F. As a result of authorities not recording M or F, a birth certificate was never created for Baby A.
Baby A's lawyer, John Chigli notes the damage of never being issued a birth certificate: “The birth certificate is of great legal importance to the life and development of a child given that it is ticket to school admission, issuance of passport, national identity card and employment."
Baby A will be legally denied these opportunities until KNH hospital administrators issue A a birth certificate.
The lawsuit is also seeking to prevent "corrective" surgeries on intersex children unless it is court-ordered. The wording of this portion of the lawsuit is worrisome, in that not all non-consensual "treatments" for intersex children are surgical. Some procedures, like vaginal dilation, are not surgical, but are still cosmetic in nature, and can serve to physically and psychoemotionally harm children that undergo them. I also hope that the lawsuit denotes that corrective surgeries do not just include altering the external genitals, but also the removal of internal sex organs. I think that intersex surgery is still largely equated with external genitals only in popular understanding, but protections against removal of internal sex organs should not be done without the intersex persons's consent, either.
Finally, I am wondering about the phrase "unless it is court-ordered." It seems like this could be a convenient legal loophole, where it could become common practice to just court-order surgery/"treatment" for every intersex person born in Kenya, or actually create new legislation making it legal to perform these treatments, and side-stepping the need to court-order treatment for each individual case. By what standards would one determine whether surgery/"treatment" should be court-ordered? What cases should be court-ordered, and which shouldn't?
I think that more legislation fighting for intersex rights and protection is necessary. I would encourage those filing this lawsuit, however, to consider whether allowing for the possibility of governing bodies to court-order intersex surgery will really be solving the problem, or simply creating more legislation and legal ways to actively change the bodies of intersex individuals without our consent.
I don't want a court system to have any say in what is done to my body. I applaud Baby A's efforts in filing a lawsuit, but hope that in court, what is fought for is intersex individuals' right alone in deciding which of our own body parts we are allowed to keep, and not other authorities who can legally court-order our body parts away without our consent.
We deserve better than that.
Thanks to Georgiann Davis for alerting me to this case!