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.