'The doctor wrote a question mark for my child's sex'

Doctor recording baby's sex as a question mark

When doctors wrote a question mark instead of a sex on her child’s birth papers, Catherine filed a high court case that has prompted Kenya to start changing its approach to intersex children.

The year is 2009.

It’s been five days since Catherine (not her real name) gave birth to her first child at the modest Nairobi home that she shares with her husband. But there’s a problem.

“Something was off with my baby’s body,” she tells me.

Catherine asks her neighbour to come and take a look. She points at her child’s genitalia and the neighbour bends down.

She looks silently.

Without attempting to diagnose a condition, she tells Catherine not to worry. She assures her that her child will be fine.

But Catherine wants a second opinion. This time she invites her cousin over.

“My cousin asked me what the problem was. I told her to just go ahead and check the baby.”

Catherine’s cousin agrees that “something looks off”. She advises her to visit the local hospital.

The next day Catherine and her husband go to their local doctor, who immediately refers them to Kenyatta National Hospital, the largest in the country.

The diagnosis from the hospital stuns the couple.

Catherine and her husband are told that their child is born with an intersex condition. The baby possesses both male and female genitalia.

In the paperwork where sex is to be marked, the doctor writes a question mark instead.

“After returning from Kenyatta with the doctor’s report, that’s when my husband started pulling back from me,” says Catherine. “He stopped leaving behind money for food.”

They began to fight.

Catherine’s husband would yell at her that his family had no history of children with both a penis and a vagina, so there was no way that the child could be his.

“He used to hurl insults at me, calling me a prostitute. I asked if the baby wasn’t his where did the child come from?” Catherine says quietly. “It is God who plans everything.”

Her husband refused to attend any future hospital appointments for the child. To Catherine it began to seem that she would be left to raise her intersex child singlehanded, and the prospect terrified her.

“I felt so alone and confused. One day I bought rat poison, so that I could kill myself and the baby. I mixed it in the meal. I remember it was beans.”

But she stopped herself at the last moment and ran to a church to speak to the pastor.

He reassured her that she was not alone, that other children like hers do exist in the world – her child was not an aberration or a curse.

“He told me that life will go on. The Lord will bless me and my child and both of us would survive.”

Catherine made a decision. One month after their child was born, she left her husband and moved in with her sister and her family.

She had been abused and shamed enough, and it wasn’t the life she wanted for herself or her child.

An intersex timeline

  • 2013 The UN special rapporteur on torture says non-consensual “genital normalising surgery arguably meets the criteria for torture”
  • 2015 Malta becomes the first country to ban non-consensual modifications to sex characteristics
  • 2017 Human Rights Watch and interACT call for a moratorium on all safely deferrable surgical procedures on children with atypical sex characteristics
  • 2018 Germany adopts intersex identity into law – people can register as intersex on birth certificates and passports from 1 January 2019
  • 2019 a UK task force of NHS doctors and intersex activists is assembled to look into informed consent and surgery on children

Weeks after giving birth, with no income coming in, Catherine returned to work at a children’s home weighted with worry.

One thing troubling her was the suggestion that her child should have corrective surgery.

“The doctor told me that the baby’s male hormones were stronger than the female hormones and that we should have surgery to sew up the vagina and give male hormones.”

For a long time she resisted the idea, but just over a year after the birth, she gave consent, believing it would be in the best interest of her baby. She quickly came to regret it.

The second issue was the birth certificate.

In order to obtain a birth certificate in Kenya a sex needs to be assigned to the child, but Catherine only had the forms where hospital staff had put a question mark next to a box indicating sex.

A question mark meant that a birth certificate could not be issued – and nor could an identity card or passport in Kenya.

Catherine knew that without these documents, she could not enrol her child into school, and that as an adult her child would not be allowed to vote.

Eventually she confided in a colleague at work. He told her that he knew a man that may be able to help her. That was when Catherine met John Chigiti.

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Earlier in the same year, 2010, John Chigiti had become well-known in Kenya as the lawyer representing Richard Muasya, an intersex person who had been sexually harassed in a male prison. The court rejected Muasya’s plea to move to a female prison, but Chigiti earned a reputation as someone sympathetic towards intersex people, in a country where public opinion is often hostile.

The birth of children with intersex traits is often seen as a curse or bad omen on the family, with many killed in infancy.

Catherine wanted three things, identity documents for her child to be able to attend school, a law preventing surgery on intersex children unless it is medically necessary and proper information and psychological support for parents.

Chigiti agreed to represent her pro bono, and helped by a local NGO, The Cradle the Children Foundation, they filed a case with Kenya’s High Court before the end of of the year.

In order to protect her child’s identity, Catherine called her child Baby A, so the case became known as Baby A v. Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths.

In a landmark ruling in 2014 the court ordered the government to issue a birth certificate to Catherine’s five-year-old child.

In addition, it ordered the Attorney General to create a task force that would look at ways of providing better support for intersex children.

That task force handed in its recommendations to the Attorney General this week. Its recommendations include delaying surgery until children can choose for themselves and a robust survey on the number of intersex people in Kenya.

“Another strong recommendation is to have an ‘I-marker’… an intersex marker to be put into public documentation,” says Mbage Ng’ang’a, the Chair of the Kenya Law Reform Commission who headed the taskforce, “as opposed to the binary state where we only recognise male and female in our official documentation.”

A number of countries recognise a third gender that can be registered on official documents once someone’s gender identity becomes clear. The task force’s plan is different – it’s about sex rather than gender, and will register children as intersex at birth.

Mbage Ng’ang’a says parliamentarians have shown strong support for the recommendations and that 2019 will bring major changes for the rights of intersex people. The case of Baby A inspired this, he says.

These days Catherine survives by making and selling soap. Her immediate family and friends are aware of Baby A’s medical history. They support her.

Some days she doesn’t make any sales. “But we get by,” she says.

Catherine has raised Baby A, now almost 10, as a boy.

She wonders if it was the right decision. Baby A doesn’t seem comfortable as a boy, she says, but she hasn’t asked him how he identifies.

She worries that he’s a loner.

“He does not like company, you will not find him with other kids,” she says.

She has a message for parents.

“If you have an intersex child, leave them alone and let them decide (on surgery) for themselves when they grow up.”

Even medical advice, she says, needs to based on research, not the doctor’s instinct, or prejudice.

“Doctors are not gods.”

Illustrations by Rebecca Hendin

The story of Baby A also features in this video report by Megha Mohan published in January:

All over the world, children with intersex traits are being operated on to be sex-assigned at birth – sometimes with devastating consequences. Megha Mohan explores the hidden world of intersex children.

Media playback is unsupported on your device

Media captionIntersex surgeries: is it right to assign sex to a baby?

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