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Kenya seeks to ban intersex athletes from lowering hormone levels to compete in sports

Country’s human rights body has put forth measure

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(Bigstock photo)

Kenya’s state-funded human rights body does not want intersex athletes in the country to lower their hormone levels as a requirement to compete in any sport.

The Kenya National Commission on Human Rights in a proposal to the National Assembly notes it will ensure non-discrimination and fairness for intersex people in sports.  

The proposal in the Intersex Persons Bill, 2024, is among numerous amendments to existing laws that seek to grant intersex people equal rights after the government in 2019 officially recognized them as a third sex.

According to the bill that would amend Kenya’s Sports Act of 2013, this will require the Sports and Youth Affairs Ministry’s Cabinet secretary and the National Council for Intersex Persons, which the measure would create, to develop measures that ensure fairness for sporting intersex people when enacted.            

“The measures shall not require a person to alter their biological hormonal composition as a condition to participating in any sporting activity or program,” reads the bill. 

Although the measures would apply nationally, they would contradict the World Athletics Council’s 2018 regulations that similarly bar female transgender athletes from participating in international competitions, such as the Olympic Games. Intersex Kenyan athletes have to abide by these rules at the global level.       

The World Athletics through the regulations noted trans women who naturally have higher levels of testosterone compared to ordinary women have to undergo medication or surgery to lower their testosterone levels as a condition before competing in races of between 400 meters and a mile. Kenya’s National Olympic Committee supports these rules.

Some top female trans athletes barred from competing in the Olympic events from the World Athletics regulations due to their high natural testosterone levels include Margaret Wambui of Kenya, Caster Semenya of South Africa, Aminatou Seyni of Niger and and Francine Niyonsaba of Burundi.

The trans athletes opposed the World Athletics regulations with Semenya challenging them in court, but lost the case, even though the U.N. Human Rights Council in 2019 criticized the rules. UNHCR cautioned sports bodies not to “force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures.” 

Kenya National Commission on Human Rights Deputy Director Veronica Mwangi, who spoke with the Washington Blade about the bill’s controversial proposal, said Kenya, which is the only African country to recognize intersex people as a third sex, has started the conversation with a “bigger picture” for the international sporting bodies to create an alternative competition for them to exploit their talents without reducing their hormonal levels or interfering with their biological characteristics as the condition before competing.      

“As KNCHR, we are very clear that we cannot afford to continue discriminating and marginalizing persons who are born as intersex, but rather we can promote conversations of inclusivity where the Semenya of South Africa, an equivalent of Semenya in Uganda and an equivalent in the U.S. or Kenya can have a special sporting event like the Paralympics for persons living with disabilities,” Mwangi said. 

She also questioned the fairness of World Athletics and other international sporting bodies in demanding “the Semenyas or talented intersex persons” to undergo hormonal therapy which then affects the athletes’ well-being after interfering with their biological anatomy.   

“These governing sporting bodies should not come back to us that it is the intersex persons to carry the blame,” Mwangi said. “It is not the responsibility of the intersex (person) but they are duty-bearers and should think of mechanisms to grow their talents and not find an easy way out of demanding to change who they are.” 

Mwangi disclosed the proposal is driven by KNCHR’s special task force report that found most intersex school children are talented and perform well in sports. 

Kenya’s Intersex Persons Implementation Coordination Committee is already identifying talented intersex people, including those in schools, to support their growth in sports. Kenya’s 2019 Census found there are 1,524 intersex people in the country.

Other amendments to the Intersex Persons Bill include an employment provision that would cap an intersex person’s monthly income tax at 25 percent of wages, compared to other Kenyans whose maximum taxable income stands at 35 percent, depending on one’s monthly total earnings.  

“Capping the income tax or wages for intersex persons at 25 percent is a tax consideration in the form of an affirmative action to uplift them in economic development and it is similar to that of persons living with disability who are tax exempted as marginalized groups,” Mwangi said.

The bill further seeks to amend the Health Act for any parent with an intersex child born at home to report the birth at the nearest government administration office or risk a fine of not more than $1,000 or a six-month prison term, or both, after being found guilty of concealing an intersex child’s identity.

The proposed law, moreover, seeks to create the National Council for Intersex Persons, whose mandates would include the creation of initiatives and programs to prevent discrimination against intersex people, creating a database for all intersex people and accrediting the group for employment purposes.  

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What’s next for LGBTQ rights in South Africa after the country’s elections?

African National Congress lost parliamentary majority on May 29

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Pretoria and Cape Town are the first cities in Africa to install Pride crosswalks. Activists are wondering what the outcome of South Africa's May 29 elections will mean for LGBTQ rights. (Photo courtesy of Bruce Walker/Pretoria Pride)

More than 50 independent candidates and political parties participated in South Africa’s national and provincial elections that took place on May 29. The Electoral Commission of South Africa declared the results on June 2.

No independent candidate or political party managed to secure the outright parliamentary majority of more than 50 percent of the votes, which prompts the creation of a coalition government. None of the 18 political parties that managed to win at least one seat in the National Assembly wholly represented the LGBTQ community.

Although South Africa is the only African country that constitutionally recognizes the rights of the LGBTQ community, some of the political parties that managed to secure seats in the National Assembly had signaled they would reserve these gains.

Former President Jacob Zuma, who leads the uMkhonto weSizwe (MK) party, during a January debate said the thought of dating within the same gender was unpalatable and un-African. The MK is now the country’s third largest political party after it won 14.58 percent of the vote, making it a pivotal player in the formation of a coalition government.

Dawie Nel, the executive director of OUT LGBT Well-being, said undermining the constitution is “a dangerous, misguided, and populist strategy to avoid acknowledging the failures of governance and the lack of implementation of constitutional values that are meant to improve the lives of South Africans.”

“South Africa’s constitution is celebrated as one of the most significant achievements of our transition to democracy, ensuring that all citizens are treated with dignity and respect, and that their rights are protected in all aspects of life,” said Nell. 

There now seems to be an impasse on who becomes the government’s next leader because of some of the demands that political parties made before they entered into any negotiations.

Bruce Walker of Pretoria Pride said the best possible outcome for the preservation of LGBTQ rights in South Africa would be if the former governing political party, the African National Congress (ANC), which garnered the most support with 40.18 percent of the vote, partners with the Democratic Alliance (DA), which finished second with 21.81 percent of the votes, to form a coalition government.

“I think it will be a good outcome for the community if the DA has some power in a coalition government,” said Walker.

Rise Mzansi, which managed to secure 0.42 percent of the votes with two seats in the National Assembly, said it will continue protecting the rights of the LGBTQ community.

“Rise Mzansi reaffirms its commitment in protecting LGBTQ+ rights in South Africa, as outlined in Section 9 of our constitution,” said the party.

Zubenathi Daca, program coordinator for student employability and entrepreneurship development in Nelson Mandela University’s Department of Student Governance and Development said the fight for LGBTQ rights in South Africa will continue.

“The battle has not yet been won,” said Daca. “Queer people are still being killed and homophobic remarks are still being made towards us daily, and we need people who have found the confidence to voice out their dissatisfactions against how they are treated and also speak out for the voiceless.” 

“This society is ours just as it is everyone else’s,” added Daca. “We are in corporate spaces, leadership positions, and political spaces to show that we belong here, and that we are here to stay.” 

The constitution says National Assembly members should be sworn in within two weeks of the elections. They will then meet for the first time and elect a new speaker, deputy speaker and president.

Chief Justice Raymond Zondo who will preside over the entire process, on Monday said the National Assembly will meet for the first time since the elections on Friday.

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Queer Nigerians still struggle with housing discrimination and homelessness

Transphobia forced Fola Francis to flee her Ibadan home

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Fola Francis (Photo via Instagram)

In Nigeria, the pursuit to secure a safe and comfortable home is often fraught with challenges for many, but for the LGBTQ community — especially those who are openly gay — these challenges are often insurmountable. 

Some two years ago, Fola Francis, a popular transgender woman who has since passed away, had to leave her home in Ibadan and fled to Lagos due to transphobia. A now deleted video of her had gone viral on TikTok, and it got to the hands of her transphobic landlord and neighbors. They held a rally to make her leave the house, breaking into it many times. 

“I got death threats from my neighbors due to them finding out I’m a trans woman on social media when my videos went viral,” she said to the BBC. 

Francis’s experience doesn’t exist in isolation. 

“For me, all I had to do was be visibly effeminate before my neighbors began to clamp down on and force me to move out,” Damian Okpara, a student at the University of Nigeria, told the Washington Blade. 

Despite the global movement towards acceptance and equality, Nigerian society remains deeply rooted in conservative values that stigmatize and marginalize queer people; and this systemic discrimination is starkly evident in the housing sector, where visibly queer people face significant barriers and prejudices that deny them the fundamental right to safe and secure housing.

“It is nowhere in the constitution that a person should be discriminated against housing of their choice due to their sexuality,” Chizelu Emejuju, a human rights lawyer, told the Blade.

Emejuju founded Minority Watch, which is an organization that focuses on fighting for the rights of minorities, including the queer community, in Nigeria. That said, Nigeria’s legal framework is one of the most hostile in the world towards the LGBTQ community. 

The Same-Sex Marriage (Prohibition) Act, passed in 2014, not only criminalizes same-sex relationships but also any public display of affection between same-sex couples. This law has legitimized widespread discrimination and has given rise to an environment where queer individuals are systematically marginalized and ostracized.

According to many, homosexuality is often viewed as a Western import, incompatible with the Nigerian values and traditions. Homophobia therefore translates into severe consequences for LGBTQ individuals, particularly in the realm of people. 

For Okpara, he’s had to leave his former home to live with a friend, even though it may mean putting both of them at risk of homelessness. 

“Although my friend’s place is more accepting of femme-boys like me, there is still the constant fear that they may switch up on us,” he said. “It’s so hard to be an effeminate man in Nigeria.” 

Okpara’s experience is a stark reminder that for many LGBTQ Nigerians, the search for housing is a journey marked by rejection and prejudice. Landlords and housing agents frequently deny rentals to openly queer people or those they suspect are queer. 

A common experience shared by many queer people is being evicted without notice once their sexual orientation or gender identity becomes known. Stories like that of Francis and Okpara are common — tenants, who after months of living peacefully, find themselves suddenly homeless, their belongings discarded, and their safety threatened. This precarious existence forces many into substandard living conditions, or in some cases, into homelessness.

The impact of housing discrimination on queer Nigerians is profound, extending far beyond the physical realm into deep psychological and emotional suffering. 

“Although I am introverted and need friends, I have decided to not even bring anyone into my space anymore,” Valentina Ikpazu, an entrepreneur in Lagos, told the Blade. “At this point, I would rather find other ways to be happy than be homeless.” 

The constant fear of eviction and the relentless search for a safe space create a state of perpetual anxiety and insecurity. This unstable housing situation often leads to chronic stress, depression, and other mental health issues.

The plight of LGBTQ people in Nigeria’s housing market exemplifies the broader struggles they face in a society that often rejects their very existence. 

“Queer people need to understand that they have a legal right to stay in a place of choice, especially if the landowners do not include clauses that are discriminatory in the earlier stages of apartment acquisition,” Emejuju said. “Even if they include clauses that are outrightly discriminatory to queer people, it can be challenged in court, as there’s no law [backing up the clauses.]”

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Kenyan Supreme Court orders MP to pay LGBTQ activist $5,000

Peter Kaluma challenged ruling that allowed NGO to register

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Kenyan MP Peter Kaluma (Photo courtesy of Kaluma's X account)

The Kenyan Supreme Court has ordered opposition MP Peter Kaluma to pay an LGBTQ activist around $5,000 (Ksh500,000) for challenging its ruling that allowed his former organization to register as a non-governmental organization.

The Supreme Court on Monday ordered Kaluma, who has sponsored the country’s anti-homosexuality bill, to pay former National Gay and Lesbian Human Rights Commission Executive Director Eric Gitari the amount after it dismissed his appeal of its ruling last September.

Gitari was a defendant in the case after leading the push for NGLHRC’s registration as an NGO amid opposition by the government because it championing consensual same-sex sexual relations that Kenya outlaws.

Five of the court’s seven justices, led by Deputy Chief Justice Philomena Mwilu through a virtual hearing, ordered the lawmaker to pay Gitari $5,000 for time wasted and costs incurred in hearing his appeal and an additional $2,000 (Ksh200,000) for bringing the case.

The judges’ ruling comes after Kaluma in January approached the Supreme Court to dispute the Deputy Registrar’s decision to assess the appeal’s costs and the order to pay Gitari after he lost.

The MP argued the Deputy Registrar did not serve him with the ruling’s notice to pay and that he only learned about the court’s decision when Gitari’s lawyer texted him to demand the $5,000.  

Kaluma also argued the lawyer demanded that the court’s seven day timeline to challenge the payment had already expired on Nov. 14, 2023. Kaluma thus urged the Supreme Court to give him more time to challenge the Deputy Registrar’s decision. 

The Supreme Court, however, rejected Kaluma’s plea after establishing he did not tell the truth since legal filings show the Deputy Registrar served him the ruling he disputed through his official email address on Nov. 6, 2023. 

“We note that there have been numerous correspondences from the court through this court’s email address to MP Kaluma and vice versa. Notably, there was correspondence from the court on Sept. 12, 2023, and Nov. 6, 2023, to the MP via his email address,” Mwilu noted.    

The judges also noted that from the court’s records from March 9, 2023, after issuing the first ruling in the NGLHRC registration case and emailing the same to Kaluma, do not indicate his email changed

“Therefore, there is no doubt in our minds that the email address in question belongs to the applicant. We therefore come to the irresistible conclusion that Kaluma was indeed aware and was served with the impugned ruling,” Mwilu stated.  

The court further noted Kaluma did not provide a good reason for not challenging the Deputy Registrar’s decision within the statutory timelines.

“Further, the applicant has not met any of the conditions to convince this court to exercise its discretion in his favor,” Mwilu ruled.   

Her affirmation on behalf of the court to decline to hear Kaluma’s attempt to delay paying Gitari brought the matter to an end. Kaluma is now required to comply with the order without any delay or risk further legal action.   

Kaluma, who was not a party to the Supreme Court’s hearings in the NGLHRC case, lost his appeal last Sept. 12. The judges cited the MP’s filing his application beyond the stipulated timelines and for not being a party to the case during the initial hearings.

“In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law. Therefore, the application stands dismissed,” the court ruled.  “On costs, the applicant is an advocate of the High Court of Kenya and a member of parliament. He ought to have known that his application was misconceived. He must consequently bear the costs thereof.”

The judges, while allowing NGLHRC to register as an NGO, stated it would be unconstitutional to limit the right to associate, through denial of registration of an association based on the applicants’ sexual orientation.

The Supreme Court’s ruling — which LGBTQ activists received with joy and anti-LGBTQ campaigners, clerics and politicians condemned — came 10 years later after Gitari challenged the Kenya NGOs Coordination Board in lower courts for refusing to register NGLHRC.   

He brought the case in 2013.

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