Legal Gender Recognition
We face difficulties in our everyday lives as trans,intersex and gender diverse people because the legal gender on our ID does not correspond to our gender identity. For many trans, intersex and gender diverse people, it is impossible to obtain official documents which recognise their gender. Instead, our listed title, name, sex and/or gender is based on our sex assigned at birth.
This means we are unable to apply for passports, identity cards or driver’s licenses that match who we are. A mismatch between our actual gender and official documentation can lead to exclusion from education, employment, social protection, housing, and financial services, and can restrict freedom of movement across national borders and can become a repeated source of harassment, unfounded suspicion, and even violence (Legal Gender Recognition – Asia Pacific Transgender Network, ).
Gender recognition procedures seek to bridge this gap by formally acknowledging trans, intersex and gender diverse persons’ gender identity. Gender recognition is more than just a legal requirement; it is important for many trans, intersex and gender diverse people to live a life of dignity and respect. (Legal Gender Recognition Archives – TGEU).
Due to the lack of legal documents that reflect their true selves trans, intersex and gender diverse people face numerous challenges in their daily lives (Köhler, Recher, & Ehrt, 2013). Official recognition of trans, intersex and gender diverse persons’ gender identity is key to enabling trans, intersex and gender diverse persons to access various services with ease. However, beyond the administrative aspects, this allows trans, intersex and gender diverse people to reach their full potential and participate in all socioeconomic aspects of life in the societies in which they live.
Legal Gender Recognition in East Africa
In 2019, EATHAN did a study on “Legal Gender Recognition and Access to Trans-Specific Healthcare for Trans, Intersex, and Non-Binary Persons in East Africa.” The findings from this research will foster greater understanding of this subject matter and enhance legal gender recognition and access to trans and intersex-specific healthcare in East Africa.
Legal gender recognition remains a major challenge in East Africa, with only 8.5% of trans women and 8% of trans men reporting that their names have been legally changed, and only 8.5% of trans women and 4% of trans men reporting that their gender marker has been changed (EATHAN, 2019).
Legal and Policy Context in East Africa
All the countries in the region, with the exception of Rwanda, criminalise adult same-sex marriage activity and relations through their penal codes. Advocating for legal gender recognition for trans, intersex and gender diverse people is difficult in this legal context. All of the countries in the region have constitutions that protect all citizens from all forms of discrimination; however, attempts to challenge punitive and discriminatory laws in court have yielded very little success for trans and gender diverse people, with a few exceptions for intersex and trans people in Kenya and Uganda. As a result, despite the fact that the constitutions of the five countries guarantee equality before the law for all citizens, this is far from a reality due to the unfair and discriminatory penal codes that still exist.
Security and safety of ITGNC persons in East Africa
Trans, intersex and gender diverse people are generally discriminated against and stigmatised in the societies in which they live; however, different gender identities experience stigma and discrimination in different ways due to the diverse contexts in which they live and the dominant perceptions in that context.
The punitive and discriminatory legal framework in East Africa has fueled sentiments of hate and violence from both state and non-state actors. Arrests and crackdowns on sex and gender diverse people are common occurrences carried out by law enforcement officers with impunity.There have also been numerous reports of blackmail and sexual and gender-based violence (SGBV) against trans, intersex and gender diverse individuals. Trans, intersex and gender diverse people have few options for seeking justice and recourse for the violence they have witnessed due to the unfavourable legal and policy environment. This environment has also significantly reduced the safety and security index for trans, intersex and gender diverse people, who are forced to live in constant fear and hiding.
Ability to make affirming legal changes in East Africa
Trans, intersex and gender diverse people in East Africa face numerous obstacles to making affirming legal changes, including the absence of gender-compatible identity documents (IDs). The inability to make affirming legal changes has been found to have a significant impact on trans, intersex and gender diverse people’s mental health and well-being, with many experiencing shame, stigma, discrimination, and a sense of being denied self-identification. According to research, having an ID that reflects one’s name and gender marker is associated with less psychological distress and a lower risk of suicide (Scheim, Perez-Brumer, & Bauer, 2020).
The ability to make affirming legal changes was discovered to be very low across all countries, with only 6.6% of trans, intersex and gender diverse people reporting that they had legally changed their names and 5.1% reporting that they had legally changed their gender marker (EATHAN ,2019).
Burundi’s 2005 constitution guarantees all citizens the right to be free from all forms of discrimination; however, as in many other countries in the region, the criminalization of same-sex sexual activity in the penal code is conflated with issues of gender identity, making the legal and socio-economic environment hostile to trans, intersex and gender diverse individuals and communities. This hostile environment makes it difficult for trans, intersex and gender diverse people to access health and legal services. This hostile environment has resulted in almost no trans and intersex-specific healthcare, with many unable to access general health care as well as other gender affirming services such as hormonal therapy and gender affirming surgery.
Trans, intersex and gender diverse people in Kenya can legally change their names on their national identity cards. However, the process is difficult, and trans, intersex and gender diverse people face delays in processing and approving their name change.
Kenya became the first African country to recognise its intersex population through a census in 2019, providing some hope for the official recognition of intersex people and communities in Kenya. The legal context in Kenya continues to make it difficult for trans, intersex and gender diverse people to easily make affirming legal changes, denying them the right to self-determination and legal recognition under the law.
The constitution of Rwanda protects all citizens from all forms of discrimination, owing to the lessons learned from the Genocide. However, the continued intolerance for people who do not conform to the hetero-norm endangers the lives of many trans, intersex and gender diverse people and communities, leaving them with few options for legal protection, access to affirming health care, and the ability to make affirming legal changes.
The state-sanctioned and driven crackdown on sexual minorities has had a negative impact on trans, intersex and gender diverse people’s health and legal outcomes in Tanzania.This means that trans, intersex and gender diverse people are denied access to basic health services because they are afraid of being stigmatized, discriminated against, or even arrested if they seek help.As a result, access to gender affirming health services such as hormonal therapy is limited, and trans, intersex and gender diverse people is unable to make affirming legal changes under the current legal and policy framework.
The 2009 “Anti-Homosexuality Bill” is a notable and grotesque attempt to further criminalise homosexuality and gender diversity in Uganda. The bill was passed in parliament in 2014 but was later repealed by the constitutional court. The hostile environment for trans, intersex and gender diverse has compromised their access to legal and gender-affirming health services and most notably heightened their vulnerability to violence. Despite this challenging environment, the trans, intersex and gender diverse movement remains steadfast in its pursuit of equality before the law, as guaranteed by the constitution, which espoused equality and non-discrimination principles.
Gender recognition is more than just a legal requirement; it is important for many trans people to live a life of dignity and respect. (Legal Gender Recognition Archives – TGEU).