Various scholars agree that there is no one way of determining an individual’s gender.[1] Leneck thinks that gender is a grammatical term referring to whether a word is masculine, feminine or neuter, and has nothing to do with whether an organism is male or female.[2]
Smith and Tummon raise an interesting counter by distinguishing between gender and sex, asserting that they have different meanings and can not be used interchangeably.[3] According to them, sex refers to the biological characteristics of being male or female while gender is the social construct that refers to the internal sense of self.[4] By others, gender is understood as culturally determined perceptions, views, and opinions about females and males, that differ across cultures, change through historical time, and are dependent on who makes the observations and judgments.[5] Determining gender is the social process of authenticating another person’s gender identity.[6] Gender can be determined in two ways; biology-based determination of gender where gender is viewed as innate and unchangeable, and identity-based determination of gender where one’s gender identity is derived from other people’s validation.[7]
Determining gender has become a sensitive issue and a policy concern, with the increasing visibility of transgender individuals.[8] In certain countries, transgender people are accepted and even given protections in legislation. This, however, is not the case everywhere. In countries that lean more towards conservative values, people from the community mentioned above are ousted and treated like criminals.[9] Our country Kenya is no exception, with our President recently asserting on live television that only two genders are recognised; male and female.[10] This lack of recognition of transgender and other non-conforming genders puts affected individuals at significant risk and denies them essential protections and rights.
My article aims to highlight the historical presence of transgender and non-gender conforming individuals in pre-colonial Kenya, therefore, challenging the misconception that these identities are solely from Western ideologies and influence. It will also emphasise the importance of acknowledging and respecting the experiences of transgender people.
The Evolving Concept of Gender in Kenya[11]
Esther Mwikali Somba, Finalist Law Student at Kabarak University Law SchoolUntil the 18th century, Western philosophers and scientists assumed that there was only one sex. They justified this theory by claiming that women’s internal genitalia were the inverse of men’s external genitalia.[12] Over time, the human body has been studied repeatedly, and scientists have concluded that there are two sexes, male and female. This differentiation is based on genitalia and chromosomes.[13]
Gender is deeply embedded in our daily lives, to the extent that we often perceive it as an innate characteristic encoded in our genes.[14] Gender is continuously shaped and reshaped through human interactions and social life, forming the structure and fabric of society.[15] It is from determining gender that we derive our expectations of how a particular individual is supposed to act and their roles in society.[16] For an individual, gender is constructed at birth.[17] This is from the sex assigned based on the apparent genitalia.[18] From this determination, the parents and caretakers of said individual decide how to treat their child.[19] Children of different sexes are treated differently.[20] Girls are introduced to items and activities considered ‘feminine’, such as dolls, the colour pink, and, in my time, Barbie movies, while boys are encouraged to engage in sports, with football being a popular choice, and are often discouraged from participating in activities perceived as feminine. From this kind of socialisation, the individual will grow to identify with their biologically assigned gender.[21] Sex does not become a significant factor until adolescence when individuals begin to experience sexual attraction toward the opposite gender.[22] By this stage, their feelings and desires have already been shaped by societal gender norms and expectations.[23] This is due to gender and sexuality being viewed in a complementary manner to be normatively congruent.[24] Genital intercourse between male and female represents the ultimate normative consummation of sexuality.[25] As a result, they are likely to marry, have children, and take on traditional roles as husbands or wives, mothers or fathers. The roles adults play - whether as parents, low-level workers, or high-level executives - shape their life experiences, influencing their emotions, awareness, relationships, and skills, which are then categorised as either feminine or masculine.[26]
In ‘Christianity, globalisation and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa’, the author Dr Reverend Kapya Kaoma, who has extensively studied the sexual behaviours of various precolonial African groups, provides examples ranging from the Zulu people of Zimbabwe to the Sangomas of South Africa, indicating that these communities regarded such minorities as being connected to spiritual beings and permitted same-sex marriages.[27] These minorities were embraced in various societies, while others turned a blind eye to them.[28] Some of them include the Meru of Kenya and Bantu of Angola who tolerated transgender men and the Langi of Uganda who allowed effeminate males.[29] This demonstrates that non-gender conforming practices are not un-African; rather, these misconceptions arise from political agendas rooted in harmful socio-cultural stereotypes of a singular, uniform African culture and identity.[30] With colonisation came the limitation of same-sex practices in colonial Sub-Saharan Africa.[31] The colonialists’ control over the Indigenous population was justified by notions of the ‘primitive African race’, which needed to be controlled to elevate to a more ‘civilised’ status, as defined by the colonisers' Victorian sexual ideals, largely rooted in Christianity.[32]
Modern movements for gender rights in Kenya
Gender dysphoria and radical gender variance are not a new phenomenon. It is a mental illness where individuals appear to have a particular biological sex but portray social characteristics of the opposite sex contrary to societal expectations.[33] The term transgender includes those people who wish to transition from one gender to the other without necessarily undergoing gender reaffirmation surgery.[34] Different societies in the world have dealt with transgender existence differently depending on the uniqueness of their societal perspective; their beliefs, religious affiliation and extent of affiliation, and whether they are liberal or conservative.[35] Cultural and spiritual values more often than not influence societal perspectives in any society.[36] This influences the well-being of transgender persons as they might not be accepted by society.[37] This is more so in a society where gender identity, sex and sexual orientation are seen as the same.[38] In such a society, a transgender person is equated to a homosexual person and thus treated in the same manner.[39]
Despite the ongoing transphobia that remains in many Kenyan communities, there is greater visibility among transgender and non-gender individuals. Such visibility often within the public sphere through activism, media representation, and grassroots movements thus pr challenges the deeply embedded notions of ‘African sexuality’ that for a long time have been framed as singular, rigid, and in line with heteronormative expectations. As an organisation, Jinsiangu has made great strides in putting transgender and intersex rights in Kenya more fundamentally presented. From advocacy, educational initiatives, and community outreach, Jinsiangu enables many people to understand the problems that transgender and intersex individuals face. The organisation has improved the understanding of these rights by enabling open discussions, providing resources, and engaging local and national stakeholders. This will assist in creating a more inclusive environment.
The right to identity
Article 10 of the Constitution outlines dignity as one of the principles that bind all persons and state organs.[40] The right to dignity is also provided for under Article 28 of the Constitution.[41] The basic principle of dignity is common to all nations, especially democratic states. Democracy is a method by which we attempt to raise the standard of living of people and to give opportunities to every person to develop his or her personality.[42] If that is the case, we have to recognise the right of a human being to choose his sex or gender identity which is integral to his or her personality and is one of the most basic aspects of self-determination, dignity and freedom.[43]
Protecting the right to identity acts as a safeguard against authoritarian efforts to subjugate the individual beneath the power of the State. The danger, then, lies in the rise of creeping authoritarianism - an unchecked intrusion into individuals' lives, creating a society where everything is standardised and normalised, with lives being excessively controlled or rigidly directed.[44] This danger is realised when the state controls trans people’s identity.[45] The state cannot affirmatively shape citizens to fit its normative desires. Transpeople are not creatures of the state.[46] They are individuals with a right to identity.
Conclusion
From the above, it is evident that transgender identities have long existed in Africa and are not a Western concept. Through open dialogue and inclusive legislation, we can work toward a society where transgender individuals are not subjected to discrimination. This is essential in upholding their right to dignity, as transgender people are, first and foremost, human beings.
[1] Kessler, Mckenna, Gender: an ethnomethodological approach, University of Chicago Press, (1978), 42-80.
[2] Leneck CM, ‘Definition of Gender’, 150(2) Canadian Medical Association Journal (1994) 130.
[3] Leneck CM, ‘Definition of Gender’ 156.
[4] Leneck CM, ‘Definition of Gender’ 156.
[5] Francis E A Owakah, ‘An examination of LGBTQI Rights in Kenya : Gains from the 2010 Constitution’(1) Haki Journal of Human Rights(2022) 80.
[6] Laurel Westbrook, Kristen Schilt, ‘Doing gender, Determining gender: Transgender People, Gender Panics and the Maintenance of the Sex Gender / Sexuality System’ 28(1) Gender and Society (2014) 33.
[7] Laurel Westbrook, Kristen Schilt, ‘Doing gender, Determining gender: Transgender People, Gender Panics and the Maintenance of the Sex Gender / Sexuality System 2014’ 33.
[8] Transgender Representative Sarah McBride reacts to Trump gender policy, NCBC News, January 22 2015, 0:01-2:45, < https://youtu.be/fa3mZeMqeBk?si=t0J3HcLe8DudJv-x >.
[9] Bettcher, ‘Transphobia: Transgender Studies Quarterly’, 1(1-2) Duke University Press (2014) 249-251.
[10] President Ruto support U.S president Trump over his support for 2 genders, KTN News Kenya, 26 January 2025, 0:30-2:05, < https://youtu.be/-QN7U52hX-g?si=cmceZKK5yh4pWf5M >.
[11] Sylvia Tamale, African Sexualities , Pambazuka Press,(2011), 11-36; Kapya J. Kaoma, Christianity, globalisation and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 22-24.
[12]Judith Lober, Susan A Farrel, The social construction of gender, Sage Publications, 1991,1.
[13] Campbell Leaper, Timea Farkas, ‘The socialisation of gender during childhood & adolescence’ in Joan E Grusec, Paul David Hastings Handbook of socialisation, Guilford Publications, 2007, 561-563; Lorber Judith, Susan A Farrel, The social construction of gender,1.
[14] Judith Lober, Paradoxes of gender, Yale University Press, 1994, 54.
[15] Judith Lober, The social construction of gender, Routledge Publishers, 2018, 347-352; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 54;
[16]Dana Berkowitz, Namita N Manohar, Justine E Tinkler, ‘Walk Like a Man, Talk Like a Woman : Teaching the Social Construction of Gender’ 38(2) Teaching Sociology (2010) 1-14.; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 54;
[17] Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[18] Michael J Carter, ‘Gender socialisation and identity theory’ 3(2) Social sciences (2014) 244; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[19] Dana Berkowitz, Namita N Manohar, Justine E Tinkler, ‘Walk Like a Man, Talk Like a Woman : Teaching the Social Construction of Gender’ 38(2) Teaching Sociology (2010) 1-14; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[20] Ridgeway, Cecilia L, Lynn Smith-Lovin, ‘The gender system and interaction’ 25 Annual Review of Sociology (1999) 191-195; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[21] Skrla, Linda ‘The social construction of gender in the superintendency 2000’ (15)3 Journal of Education Policy, (2000) 293-316; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[22]Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[23]Ruth A Wiendaw, ‘Gender differences; biology and culture’ in Jennifer Ketchman Gender roles, Salem Press, 2011, 34-35; Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55; Dana Berkowitz, Namita N Manohar, Justine E Tinkler, ‘Walk Like a Man, Talk Like a Woman : Teaching the Social Construction of Gender’ 38(2) Teaching Sociology (2010) 1-14
[24] D Richardson ‘Constructing sexual citizenship : theorising sexual rights’ 20(1) Critical Social Policy (2000) 108-109.
[25] Charles Ngwena, What is Africannes?, Pretoria University Law Press, 2018, 224.
[26] Judith Lorber’s, ‘Night to his days: The social construction of gender’ 55.
[27] Kapya J. Kaoma, Christianity, globalisation and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 22-24.
[28] Geoffrey A Jobson, Liesl B Theron, Julius K Kaggwa, He-Jin Kim, ‘Transgender in Africa: invisible, inaccessible, or ignored?’ 9(3) Journal of Social Aspects of HIV/AIDS (2012) 3; Kapya J. Kaoma, Christianity, globalization and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 25.
[29] Kapya J. Kaoma, Christianity, globalisation and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 25.
[30]Stobie, Cheryl, ‘ ‘He uses my body’ : female traditional healers, male ancestors and transgender in South Africa’ 9(2) African Identities (2011) 149-162; Kapya J. Kaoma, Christianity, globalization and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 25.
[31] David Olali, ‘African traditional religion, sexual orientation, transgender, and homosexuality’ in Ibigbolade S Aderibigbe, Toyin Falola The Palgrave Handbook of African traditional religion, Springer International Publishing, 2022, 323-325; Kapya J. Kaoma, Christianity, globalisation and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 25.
[32] Zabus, Chantal, Outing Africa: on sexualities gender, and transgender in African literature, Routledge Publishers, 2021, 381-398; Kapya J. Kaoma, Christianity, globalization and protective homophobia: democratic contestation of sexuality in Sub-Saharan Africa, 2017, 25.
[33] Atkinson, Sean R, Darren Russell ‘Gender dysphoria’ 44(11) Australian family physician (2015)792-796.
[34] Reiman, A K, Ocasio, T S, Mezzapelle, J L‘How cisgender people define “transgender” is associated with attitudes toward transgender people’ 52(3) Archives of sexual behavior, (2023) 991-1007.
[35] Atkinson, Sean R, Darren Russell ‘Gender dysphoria’ 44(11) Australian family physician (2015)792-796.
[36] Winter , Diamond,Green , Karasic, Reed, Whittle, Wylie K ‘Transgender people: health at the margins of society’ 388(10042) The Lancet, (2016) 390-400.
[37] Radcliff Brown, ‘ Religion and society’ 75 The journal of the anthropological institute of Geat Britain and Ireland (1945) 33-34; Winter , Diamond,Green , Karasic, Reed, Whittle, Wylie K ‘Transgender people: health at the margins of society’ 388(10042) The Lancet, (2016) 390-400.
[38] Rahmiwati Marsinun, Lira Erwinda, Yuda Syahputra, Asni, ‘ Homosexual and transgender tendencies in terms of gender: a rasch perspective’ 422 Advances on social science, education and humanities research (2019) 1; Winter , Diamond,Green , Karasic, Reed, Whittle, Wylie K ‘Transgender people: health at the margins of society’ 388(10042) The Lancet, (2016) 390-400.
[39] Winter , Diamond,Green , Karasic, Reed, Whittle, Wylie K ‘Transgender people: health at the margins of society’ 390-400.
[40] Constitution of Kenya (2010), article 10.
[41] Constitution of Kenya (2010), article 28.
[42] National Legal Services Authority v Union of India and Others (INSC 275/12) [2014].
[43] National Legal Services Authority v Union of India and Others (INSC 275/12) [2014].
[44] Jed Rubenfeld , ‘The right of privacy’ 102 Havard Law Review (1898) 784.
[45] Rubenfeld, ‘The right of privacy’ 784.
[46] Cf Pierce v Society of Sisters, 268 O.S.
