The plight of intersex persons

Abstract

Every person has a right to identity and a right to human dignity, when these rights are guaranteed to every person, there is no caveat given as to how the person should be, whether black or white, male, female or intersex, all these are persons who deserve these rights. This paper is premised on the hypothesis that there is not enough legal recognition, protection and inclusion of intersex persons the Kenyan law and due to that, intersex persons have suffered in their fight for other basic human rights. This chapter is based on a theoretical framework by John Rawls who advances that justice can only be considered to be justice if the principles of justice are set out behind the veil of ignorance, these principles support the equality of all. Javier Hervada adds that justice also requires a habit of giving to each what is due to them. Moreover, an analysis of the legal framework in Kenya is taken and a conclusion is drawn to the effect that the shortcoming in the law in the inclusion of intersex persons has crippled the courts while serving justice to intersex persons. Further a comparative study between Kenya and South Africa and Australia is carried out. This paper compares how the legal frameworks of these countries treat intersex persons and establishes that Kenya needs to create legislation that includes the rights of intersex persons as well as expand the definition of sex to include intersex persons. Among the recommendations proposed in this paper include the expansion of the interpretation of sex to include intersex as well as the creation of awareness of intersex persons in Kenya.