The Star (Nairobi)

Kenya: Gender Identity - the Other Sex, Part Three

Kenya's first public transgender person was a woman only identified as Rose. She made headlines in the 1980s after she got sex reassignment surgery because gender identity disorders were unheard of then.

Following her surgery, her life became a nightmare. According to reports, Rose was constantly a subject of ridicule. She was ostracised and couldn't get a job or support because she was viewed as a disgrace and recluse in the society.

Six months after her surgery, following all the stress and depression she was battling, Rose took her own life. Last year in Kisumu city, a transgender woman was exposed and humiliated in public after seeking work as a house help.

Her attackers not only beat her up and stripped her, but also had her arrested. In June, Alex, a transgender man, was hanging out in a bar in downtown Nairobi when he got assaulted.

His alleged attacker who was with a group of friends walked up to him and started hurling insults at him after which he told Alex, "I am going to hit you to prove that you are not a man." Alex, who is also a member of Transgender, Education and Advocacy, was helpless as his attacker and his friends beat him up.

"The whole time, they taunted me saying, 'bring your lesbian lawyers.'" Alex with the help of Audrey Mbugua, TEA's programmes manager, reported the matter to the police at Central Police Station. The police directed Alex to get a P3 form from the police surgeon.

Once he got it, Alex went back to the police and two days later his attacker was arrested. Following the arrest, his attacker's friends threatened him and tried to intimidate him to drop the charges, but Alex stood his ground.

His determination not to be cowed for being a transgender person paid off when the court found his attacker guilty of assault and had him jailed for two years.

"Taking Alex's attacker to court was important for us because most times transsexuals will not report such matters to the police for fear of repercussions. We transsexual people need to represent ourselves because we know where the shoe pinches most and we have brains and mouths to speak for ourselves. We have the right not to be called all manner of names simply because of our vulnerable and marginalised position in the society. We cannot afford to don kid gloves when handling non-transgender people who don't care about the future of our transsexual race," says Audrey.

The cases noted above encompass most of the five main challenges that transgender people face in Kenya. According to the Transgender Education and Advocacy these are:

Stigma and shame:

Due to the lack of understanding of the transsexual concept, there is the general prejudice, hostility and shame of having a transgender sibling, parent, friend, relative or classmate.

Discrimination:

It involves being denied access to certain services, for example medical services, because of one's transgender status.

This is due to the fact that changing names and sex in legal or educational documents is a torturous long process. Also, due to ignorance and outright hostility by individuals in institutions who have a negative attitude towards transgender people.

In a recent case, a transgender woman was denied a change of name; the registrar of persons demanded proof for a change of sex. This is not normally requested from non-transgender people.

Religious intolerance:

There are religious people who feel that changing sex is ungodly or goes against their religious tenets. This propagates their hostility towards transgender people.

Violence:

Both by state actors and non-state actors. State actors include police officers. This could be in the form of verbal, emotional or physical abuse. It is meant to cause physical and psychological pain.

Mislabelling:

Due to the lack of understanding by the general public and advocacy groups, such labels include: gays, drag queens, hermaphrodites, she-he, he-she and cross-dressers.

They don't understand that transsexualism/transgenderism is an issue of gender identity and is not sexual orientation or identity.

Despite these facts, there exists a number of laws that are meant to guarantee people with transsexualism fundamental rights and freedom to access health care services, freedom from discrimination, access legal services such as change of names in identity and academic documents. However sometimes, they edge them out too. These laws include:

Registration of Persons Act (Cap 107):

This Act provides all Kenyans the right to have a national identity card. At the moment, no section prohibits transsexuals from changing particulars in their national identity card. But, the government is proposing:

18(4) The Director may decline to change the particulars of a registered person appearing in the register if in his or her opinion such change will result in a change of the registered person's identity, notwithstanding that such a change is permissible under any other written law or registration system.

Audrey says, "In the course of my interaction with government officials, I have witnessed a general confusion about name changes and sex changes.

A change of name is not the same as a change of sex and a change of name does not necessitate a doctor's report to confirm a surgical change of sex.

"Additionally, there is the construct of male and female names. There are no male names and neither are there female names.

There is no law that stipulates what male and female names are. It is just our culture has conditioned us to believe that there are male and female names.

And we all have the right to practice or not to practice our culture. Everyone has the right to take a name of their choice and drop their given names.

"We have made calls for an amendment of this clause; we wait to see whether they will change."

Kenya National Examination Council Act:

Part 4 of the Education Act gives the Minister of Education powers to provide guidelines for the conduct of examinations and issuance of certificates. The Education Act is however silent about lawful alteration of names in certificates.

The KNEC Act however allows for changes of names or other particulars (but is worth noting the language is vague. Additionally, it denies the holder of the certificate that right since :

Section 9 (3) The Council may at any time withdraw a certificate for amendment or for any other reason where it considers it necessary

When Audrey applied for a change of names in particulars she received the following response from the examination council:

"Kindly note that we do not effect name changes on certificates after release of examination. You are advised to attach the gazette in cases that require use of your previously acquired certificates."

This exposes her to discrimination during employment. "It's even worse now because the current Kenya National Examination Council Bill 2012 dropped the section on amendments of certificates," she says.

Births and Deaths Registration Act (Regulating issuance of Birth Certificates)

Section 14 states "Where the birth of any child has been registered before it has received a name, or where the name by which it was registered is altered, the parent or guardian of such child may within two years of the registration, on payment of the prescribed fee, and on providing such evidence as the registrar may think necessary, register the name that has been given to the child."

"This law discriminates against people with transsexualism (in addition to all non-transsexual citizens) on grounds of age since transsexualism cannot be diagnosed at the age of two years. A change of name in birth certificates is a right for all citizens not just people below the age of two. However, addition of names in birth certificates is allowed," says Audrey.

The second part of this act further states, "Where the name by which a child was registered is changed, the parent or guardian of such child may within seven years of the birth, and on payment of the prescribed fee, and on providing such evidence as the registrar may deem necessary, register the name that has been given to the child provided such change is done only once.

"These are some of the legal problems we are having with regard to legal reforms and owing to the reluctance various government offices are demonstrating in respecting the rights of transsexuals, the final battles might have to be played in courts," she says.

Reproductive health:

The Constitution of Kenya Article 43. (1) (a) provides that Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. However this is not always the case. Audrey shared, "There are a number of pitfalls that people make in interpreting the law whenever there is a debate about transsexuals:

1. The Law does not recognise sexual orientation as a ground for non-discrimination. This is discriminative and a classic case of mislabelling since transsexualism/transgenderism is an issue of gender identity and health status not sexual orientation (who one is sexually attracted to). People don't change sex to sleep with A or Z.

2. People expect to see the name "transgender" in our laws for them to accept that the law protects transgender people. Demanding to have the term transgender as a sacrosanct constant in the law by which we can protect the rights of transgender people will be a tall order. For instance, we don't have the term "diabetes/diabetics" in our constitution, but we don't discriminate diabetic people because our constitution doesn't have the term in it."

The Bill of Rights Article 27(4) (4) states that:

The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth, sex, health status, disability, dress and birth are grounds for non-discrimination.

"If you look at the first line, 'The State shall not discriminate directly or indirectly against any person on any ground' is in itself satisfactory but often times it is the state actors like, for instance, the police who don't respect this. I remember there was one instance where a transgender woman was arrested along one of the streets in Nairobi and charged with 'importuning for immoral purposes' the police officers ordered fellow inmates to strip her to determine her sex."

Audrey believes that there is need for transsexual persons to engage with the ongoing processes of legal and policy reforms in Kenya - be it in the health sector, citizenship and education sectors.

"There are no magical fixes for our problems and we cannot afford any level of laxity. We have made fundamental changes in certain sectors and more is in the conveyor belt - but we should not expect anything short of a street fight.

"Most Kenyans have an incomplete grasp of the transsexual concept or issues and it is not uncommon to see them confusing transsexuals with gays, lesbians, intersex, cross dressers and bisexual people.

This means that rarely will transgender issues be discussed in an objective fashion. To stem this, the Transgender Education and Advocacy has created relevant frameworks to facilitate constructive debates that will enlighten the society and create capacity in government to offer services to transgender people in line with Section 47 of our Constitution that is Fair Administrative Action."

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