Interpreting the binary: determining the place of intersex people in the constitutional right to marry

Abstract

In the Kenyan Constitution, under Article 45(2), marriage is framed as a right arising only between persons of opposite sexes. The wording of this provision has long been taken to mean that a legal marriage can only occur between a man and a woman. Kenyan law has begun the process of recognising the intersex identity as a third sex, and with this process comes the question of whether or not the phrase “opposite sex” can include intersex people. This study therefore seeks to explore the constitutional interpretation of the binary sex phrasing in Article 45(2) with the aim of determining whether it can be construed in a manner that affords intersex people the right to marry. To achieve this objective, the study analyses sociological and anthropological approaches to marriage as well as its conceptualisation under Kenyan law. The place of the intersex identity is then determined in relation to the findings thereon. The study utilises various methodologies to arrive at is conclusion. Marriage law in Kenya is appraised through historical and doctrinal study of the Constitution and other statutes to pinpoint the origin and intended use of the phrase “opposite sex”. Approaches to the intersex identity are explored through policy analysis of Kenya and other jurisdictions, supplemented by interdisciplinary findings from endocrinology and related medical fields. The study finds that marriage is a dynamic and varied institution, moulded in Kenyan law by the drafters of the Constitution with the aim of upholding Kenyan culture by excluding same-sex couples. Analysis of the intersex identity yields the conclusion that despite their constant conflation, sex and gender are distinct concepts, allowing intersex people the leeway to self-identify within the gender binary. Based on these findings, the study ultimately recommends that the binary phrasing of the right to marry should be seen as referring to gender rather than biological sex, an approach that allows intersex people to marry based on their self-identified gender.