THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN

THE IMPACT OF THE LEGAL AND POLICY i FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA

Research Brief

2020

A publication of: Human Rights Awareness and Promotion Forum (HRAPF) Plot 390, Professor Apolo Nsibambi Road, Namirembe, P.O. Box 25603, Kampala – Uganda Tel: +256-414-530683 or +256-312-530683 Email: [email protected] Website: www.hrapf.org

THE IMPACT OF THE LEGAL AND POLICY iii FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA RESEARCH TEAM

Dr. Adrian Jjuuko Lead Researcher and Editor Linette du Toit Researcher Tom Makumbi Research Assistant Delphine Nannozi Research Assistant Ibrahim Mawanda Research Assistant

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF iv INTERSEX PERSONS IN UGANDA 1. INTRODUCTION

An intersex person is someone with HRAPF and SIPD have therefore an atypical reproductive and sexual partnered to investigate the impact system. The body and reproductive of the legal framework on the human organs of an intersex person rights of intersex persons in Uganda. cannot be typified as either ‘male’ or The study seeks to consider which ‘female’ according to the definition human rights concerns intersex and standards of society. Intersex people in Uganda face and how characteristics can manifest in these concerns can be addressed. a very broad variety of ways. It is possible for an inconsistency to The study was qualitative in nature. occur between the internal and Secondary data was collected on external sexual anatomy of an the legal and policy framework on intersex person. In some cases, the protection of intersex persons an intersex person’s genitalia will in Uganda, Uganda’s domestic laws be neither clearly male nor female. and policies, as well as data on Some intersex conditions may only three other countries which protects become apparent when a child the rights of intersex persons in reaches puberty. About 0.05% - a progressive way namely Kenya 1.7% of the world’s population are and South Africa (Africa) as well as born with intersex characteristics. Malta (Southern European Island). This number cannot be pinned Primary data was collected through down more accurately due to the In-Depth Interviews (IDIs) with differences in parameters within intersex adults and parents of which ‘intersexuality’ as defined by intersex children, and Key Informant different medical experts. Interviews with key actors in Globally, intersex persons are this field. IDIs were done with 12 subject to discrimination in intersex individuals and 8 parents various spheres of life, including of intersex children in Gulu, in the access to education, healthcare, Northern Region of Uganda; Tororo employment and housing. The in the Western Region and Masaka three major human rights concerns and Mukono in the Central Region. affecting intersex persons globally A total of 14 KIIs were held with are: prejudice and discrimination, policy-makers, government officials, subjection to unnecessary medical civil society representatives and surgery and legal recognition. The representatives of schools and actual experiences of intersex hospitals. Two District Health persons in the Ugandan context, Officers, one Officer in Charge of a and the extent of violations which Police Station and one principal of they would typically suffer, have a school attended by an intersex not been documented in depth in child were interviewed. Furthermore Uganda. in-depth interviews were held with

THE IMPACT OF THE LEGAL AND POLICY 1 FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA representatives of the Uganda Human Rights Commission (UHRC); the National Identification and Registration Authority (NIRA); the Human Rights and Legal Affairs Directorate in the Uganda Police Force; the Ministry of Health (MoH), the Ministry of Gender, Labour and Social Development (MGLSD) and the Ministry of Education and Sports (MoES). A representative of MARPI was interviewed as well as a project officer of World Vision Uganda.

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF 2 INTERSEX PERSONS IN UGANDA 2. KEY FINDINGS

2.1 Uganda’s legal and policy change their sex, and their parents or framework does not generally guardians have made an application recognise intersex persons as required. Unfortunately the law and their unique challenges uses pejorative language and also links the availability of changing Uganda has ratified a number one’s particulars in the birth register of international and regional to undergoing surgical procedures human rights instruments, which during childhood and a similar unfortunately do not address procedure is not available for adults intersex rights directly, but a number who wish to change their details in of whose provisions have bearing on the birth register. intersex persons’ rights. However, treaty bodies have made specific In Uganda, there is no specific law observations and recommendations or policy, which guides police and in respect of the rights of intersex prison officials on how intersex persons. persons should be treated in detention. The National Orphans The Constitution of Uganda requires and Other Vulnerable Children the state to fulfil the fundamental Policy (2003) has a specific focus rights of Ugandans to social on the most vulnerable children justice and economic development and it arguably applies to intersex and provision of basic medical children though they are not services. The Constitution provides explicitly mentioned. The Children for equality and protection before Act Cap 59 and The Education (Pre- the law for all persons; the right Primary, Primary and Post-Primary) to be free from torture and cruel, Act, 2013 are largely protective of inhuman and degrading treatment children though it does not expressly or punishment; the right to privacy, recognise intersex children. and the right to liberty of all persons, affirmative action measures in Currently, there is no policy on favour of marginalised groups and treatment of intersex patients. children’s rights. An expert team of paediatricians, surgeons and members of civil Uganda has adopted the Registration society has been commissioned by of Persons Act, 2015 which allows the Ministry of Health’s Technical both children and adults to change Working Group on Mental and Child their names. The Act also allows the Health to develop a policy guideline parents of ‘hermaphrodites’ to apply on treating intersex patients. to have the details of an intersex child changed in the birth register if the child had undergone surgery to

THE IMPACT OF THE LEGAL AND POLICY 3 FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA This legal and policy invisibility There is largely nor recourse for leaves intersex persons without legal them as they are not specifically recognition, and therefore without provided for and few teachers are legal protection. This invisibility trained to handle such cases. feeds into the lack of awareness on the existence and challenges of ‘And another challenge, intersex persons in Uganda. Lack during my studying of awareness was cited over and time from S.1 to S.4 I over again as the major cause of had those breasts. So challenges for intersex persons it was a challenge to in Uganda. Where there is no me, to boys, my fellow awareness, there can be no policy. boys bathing with them Where there is no policy, there can so they could laugh at be no law, guideline or programme me. That was a very big specifically designed to address the challenge for me. And I challenges that intersex persons reached that stage and face. Accordingly, both children and I could ask myself why adults face the violation of their God, will I be like a normal rights in Uganda. man because they could laugh at me and I feel I was segregated.’ Intersex person interviewed in 2.2 Legal and policy invisibility Mukono, 26th October impacts on the rights of 2018. intersex persons

2.2.1 Violation of intersex b) The right to health. children’s rights The state does not provide for Intersex children face the greatest specialised treatment for intersex extent of human rights violations conditions. The hospitals capable that can be attributed to the legal of providing treatment to intersex and policy framework. The rights children lack sufficient funding. violated are: There is a lack of expertise and understanding of intersex conditions among general medical a) The right to education practitioners, especially in rural Exclusion from education is a major areas. issue among intersex persons in ‘We do not have specific Uganda. Almost every intersex programs for that person interviewed shared that because it is a very … rare they experienced discrimination or condition … we wouldn’t bullying at school due to the fact that discriminate such a child, they are intersex. Many decided to we would imagine that leave school to escape the ridicule.

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF 4 INTERSEX PERSONS IN UGANDA that child fits into our d) The child’s right to freedom system - referral system from inhuman and degrading because when we get a treatment child like that we consider that as a unique case Intersex infants and children which should be referred are subjected into invasive and to either a regional referral irreversible surgeries without their hospital or a national consent. In one case a young referral facility for support intersex child had undergone because we do not have cosmetic surgery which, was not specialists in the district medically necessary. The outcome to handle childhood of that case was that the penile sort of variations or reconstruction failed and the child abnormalities.’ Interview was left in a situation where his with District Health body is constantly discharging puss Officer, Buikwe District, with a strong smell. Interview with th 26th October 2018. parent of intersex child in Tororo, 9 October 2018. c) The child’s right to be cared for by parents 2.2.2 Violation of intersex adults’ rights Intersex children experience discrimination at the family and community level. Mothers abandon a) Lack of legal recognition their newborn babies or fathers Currently, the law does not recognise abandon both the mother and a third gender and intersex adults intersex baby. Intersex children do not have a mechanism to their are also excluded from inheriting disposal to change their particulars communal and family land. in the births register. This poses I have no support challenges for them. whatsoever from relatives and the reason for that is because of land wrangles. b) Discrimination in employment They wanted to chase us off the kibanja. The family Intersex persons reported members are all against difficulties in finding and maintaining me and the fact that I employment due to the stigma have an intersex child so created around them by society. it even exaggerates the This would be structural rather than situation. Interview with direct discrimination. parent of intersex child, Masaka, 24th October 2018.

THE IMPACT OF THE LEGAL AND POLICY 5 FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA c) Freedom from inhuman and degrading treatment In police and prisons custody, specific provision is not made for adult intersex persons and they are detained in cells where they could be at risk of suffering sexual abuse. HRAPF’s legal aid clinic has dealt with a case of an intersex person who was accused of murder and was placed on remand along with male prisoners. The client reported that he suffered ridicule by other prisoners while in detention, and he was not asked which cell he preferred to be incarcerated in. (Interview with representative of Human Rights Awareness and Promotion Forum, Kampala, 28th January 2019).

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF 6 INTERSEX PERSONS IN UGANDA 3. CONCLUSION

Uganda is placed within a necessary and cosmetic surgeries progressive regional and on intersex persons, many intersex international framework as far persons nevertheless face a as intersex rights are concerned financial barrier which prevents and has ratified various human them from accessing the surgeries rights instruments that have they require. Intersex persons provisions that speak to the rights also face discrimination in legal and concerns of intersex persons. recognition in that only minors who Uganda does not have a clear law or have undergone surgical procedures policy to guide educators on how to to alter their sex are able to apply for accommodate intersex students, nor an alteration of their particulars in are there specific policy provisions the births register. Intersex persons that addresses the medical needs also risk the abuse of their rights and concerns of intersex persons while in custody since there is no or medical protocols to protect clear guideline to law enforcement them from medically unnecessary officials on how to handle cases of surgeries performed without their incarceration of intersex persons. informed consent. Uganda’s laws do not prohibit discrimination on the The invisibility of intersexuality in basis of sex characteristics. the laws and policies is the biggest cause of the violations. The state of In terms of impact of the legal Uganda, by failing to put in place laws and policy regime, the study finds that protect intersex people against that intersex persons face severe violation and discrimination, fails in stigma at family and community its obligations to protect, fulfil and to level which threatens their right to respect the rights if such persons. life. Intersex persons find major Considering that intersex children’s challenges in exercising their right to rights are mostly violated, the state education due to the fact that they cannot argue limited resources can easily fall subject to ridicule in as protection of such vulnerable a school-setting and educators do persons from discrimination and not have clear guidance on how to violation is part of the minimum core accommodate intersex students. package for social-economic rights. Intersex persons also suffer the Unregulated medical practices violation of their right to health in upon such children are also a big that medical practitioners in smaller issue leading to a violation of their health facilities are not well-versed right to freedom from inhuman and with their medical concerns. While degrading treatment. there are hospitals within Uganda and its neighbouring countries that can perform both medically

THE IMPACT OF THE LEGAL AND POLICY 7 FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA 4. RECOMMENDATIONS

The study makes the following To the Ministry of Health recommendations: • Adopt a protocol which stops surgeons from performing medically unnecessary surgeries To Parliament on intersex children and infants Amend section 38 of the without their free, full and Registration of Persons Act, 2015 to informed consent. allow intersex adults to also change • Allocate a portion of the Ministry’s their particulars in the births register budget toward subsidising if they wish and replace the term surgeries and hormone treatment ‘hermaphrodite’ with intersex. for intersex persons. • Train medical practitioners on To the Ministry of Gender, Labour how to treat intersex patients. and Social Development • Sensitise health workers on how Include intersex children in the to protect the privacy and dignity review of the National Policy on of intersex patients. Orphans and Other Vulnerable Children. To the Uganda Police Force • Adopt guidelines to instruct To the Ministry of Education and station commanders on how Sports to handle cases of intersex • Include intersex children within arrestees. Such guidelines education policies in Uganda as could include to detain intersex vulnerable children. persons in separate facilities or to release them on police bond. • Protect intersex children from discrimination based on sex. • Continue training and awareness- raising among police officers of • Sensitise teachers on different ranks in all regions of intersexuality and how to prevent the country. and deal with bullying against intersex children

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF 8 INTERSEX PERSONS IN UGANDA To the Equal Opportunities • Participate in the development Commission of policy and adoption of laws, which potentially affect intersex • Monitor and investigate the persons or could better ensure situation of intersex persons. the realisation of their rights. • Include intersex people’s issues in the annual reports to Parliament.

To the Uganda Human Rights Commission • Investigate and monitor human rights abuses committed against intersex persons. • Include intersex issues in the annual reports to Parliament.

To mainstream civil society organisations • Deliberately target intersex persons in programming

To intersex persons and organisations working on intersex persons • Undertake advocacy campaigns to raise awareness about the existence of intersex persons in Uganda and their particular human rights concerns. • Join/identify support groups and reach out to other intersex persons and parents of intersex children in order to overcome isolation and secrecy.

THE IMPACT OF THE LEGAL AND POLICY 9 FRAMEWORK ON THE HUMAN RIGHTS OF INTERSEX PERSONS IN UGANDA Human Rights Awareness and Promotion Forum - Uganda (HRAPF)

Plot 390, Professor Apollo Nsibambi Road, 20 Metres off Balintuma Road, Namirembe P.O. Box 25603 Kampala, Tel: +256-414-530683 or +256-312-530683 E-mail: [email protected], Website: www.hrapf.org

THE IMPACT OF THE LEGAL AND POLICY FRAMEWORK ON THE HUMAN RIGHTS OF 10 INTERSEX PERSONS IN UGANDA