It takes progressive laws to bring desired social change

A Senegalese immigration officer confronted my Kenyan female colleague with a very strange question this week: “Do you have permission in writing from your husband or father to travel?” Suffice to say that line of enquiry was very quickly dismissed. She entered the country to run a Pan-African conference for sixty men and women. I was left wondering how far Kenya has come to not allow one’s sex or gender to constrain one’s freedom to speak, act and be ourselves.

While we were in Senegal, the Kenyan Gender Ministry launched an excellent book on the nation’s trailblazers. Kenyan women trailblazers knocked down walls to create all the opportunities we now take for granted. It is their vision, sacrifices and impact that UN Women and World Bank now measures.

The emergence of laws that guarantee women’s rights to an independent identity, freely travel, own and inherit businesses and property and be paid the same as men is not an accident of history. The Matrimonial Property Act and the Protection Against Domestic Violence Act were not the consequence of decent rains in 2013 and 2015.

They were the actions taken by courageous women and some men to create a new society in which all would be accepted and respected. When the Kenya Breastfeeding Mothers’ Bill (2017) is finally enacted by our National Assembly and breastfeeding rooms become as commonplace as men and women’s toilets, we will see Kenya take another step forward.

The struggle for progressive laws is at the centre of changing norms in all societies. It is not long ago that menstruation was treated with horror, disability was satanic and the idea that women could make decisions independently from their fathers or their husbands, simply outrageous. As it has been with women’s rights, it will be with the Lesbian, Gay, Bi-Sexual, Inter-Sex and Queer sexual minorities.

Last week saw two important landmark rulings and recommendations. The first saw the Court of Appeal uphold an earlier High Court decision that the Non-Governmental Organisations Coordination Board is constitutionally obligated to register the National Gay and Lesbian Human Rights Commission. The second emerged from Intersex Persons in Kenya task-force report recommendations to Attorney General.

The Appeal Court’s ruling upholds Article 36 to protect the freedom of all Kenyans to associate with other Kenyans. Given the stigma against gays in some circles, this is an important development. Sexual minorities can more openly and effectively protect themselves against discrimination and violence. Ironically, the greatest push-back came from the evangelical churches who themselves seek not to be registered by the Government.

The challenge facing intersex persons was not envisaged in the Constitution. It took a 5-year-old child to raise them. Going to court, the child “Baby A” demanded a national census be done to ascertain the number of inter-sex persons in the country. Further, that any surgery to remove one of the genitals should only be done with the informed consent of the person.

The task-force has interviewed close to 300 Kenyans born with both male and female organs. Unable to be fitted into the binary of man/boy or woman/girl, they have been denied birth-certificates and other identity documents, ridiculed, locked out of schools, forced to undergo surgery or denied essential services. The costs of surgery for those who wish to undergo this is prohibitive. Many families with intersex children like “Baby A” find it hard to cope with the challenges. Some had forced them to undergo “corrective surgery” without their consent or choose which gender they want to identify with. Others seek to hide them to protect them from societies’ narrow moral judgements.

I recognise that the right to choose our gender and sexuality remains controversial for some. What cannot be controversial is that one’s sex or gender should be grounds for denying Kenyans an independent identity and freedom from stigma, discrimination and violence.

The history of the women’s rights movement teaches us that laws and national debates are important triggers for progressive social change. The rights enjoyed and jealously guarded by women today were once morally unacceptable less than a generation ago. Patience, a listening for those that disagree with us and a commitment to treating all with dignity and respect will create an inclusive society for us all.

- The writer is Amnesty International Executive Director. [email protected]