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Breaking binaries and advocating for intersex justice in Southern Africa

The Midweek Sun

8 November 2023

By: Bradley Fortuin

A transformative movement is gaining momentum in Southern Africa, a region known for its diverse cultures and traditions. This movement challenges gender norms and advocates for the rights and dignity of intersex individuals. This article explores the vital concepts of breaking binaries and intersex justice in Southern Africa, where cultural nuances and a rapidly developing fierce spirit of activism reshape the landscape of gender diversity and sexuality.

The world is quickly changing, and with it comes an increasing recognition of the importance of diversity and inclusion. In the past, many people have looked at the world in terms of binaries – black and white, male and female, homosexual and heterosexual. However, this way of thinking is limiting and does not reflect the diversity that exists in our communities. Breaking these binaries and embracing diversity and inclusion is crucial to creating a fair and equitable society by recognising and protecting all these diversities.

Intersex intersectionality.

Intersex justice is a social and human rights movement that advocates for the rights, dignity, and well-being of intersex individuals. It is also a political movement making political statements since in the broader context of identity politics and the recognition that vulnerable and marginalised communities have historically been subjected to social, political, and legal discrimination. When gender-diverse people dare to express their identities openly (and using the plural term for identity here intentionally because, using the theory of intersectionality, everyone has their own unique identities and experiences), it can be seen as a form of resistance and a statement against the systemic discrimination and oppression they may face.

Intersex people are born with variations in their sex characteristics that do not fit typical definitions of male or female. Intersex people often face stigma, discrimination, medical interventions without informed consent, and societal violence. Inclusive binaries and intersex justice are significant issues in Southern Africa, as they intersect with the region’s traditional, cultural, social and legal aspects. In many parts of Southern Africa, intersex persons are often frowned upon, hidden or even believed to be a curse and killed.

As we work on intersex awareness, though annual commemorations such as #IntersexAwarenessDay, there is a solid need to reject stereotypes that lead to discrimination and prejudice. Breaking binaries embraces intersectionality and affirms that people have multiple identities that intersect and interact with one another.

Several Southern African customs have a long-standing relationship with gender and sex, associated with male and female and masculinity and femininity, and there is no in-between; males are expected to masculinize, and females are supposed to feminize. The push for inclusive binaries challenges these traditional gender norms and promotes a more inclusive understanding of human diversity.

Gender norms and it has influenced societies.

Gender norms have profoundly influenced Southern African societies, shaping cultural, social, and economic dynamics for centuries, and this has also impacted modern gender norms in our communities. Gender norms can be defined “as social principles that govern the behavior of girls, boys, women, and men in society and restrict their gender identity into what is considered to be appropriate”, a definition also very limiting and binary based with little consideration and acknowledgement of the diverse gender spectrum.

Gender norms, a social construct, were often prescribed specific roles and responsibilities for men and women, and we have been inaccurately taught in History, Moral Education and Social Studies lessons in schools that in the past, men were traditionally seen as hunters, warriors, and providers, while women were responsible for domestic tasks, childcare, and subsistence farming.

These roles have reinforced gender-based inequalities in access to resources and economic opportunities that we experience today in a somewhat progressive modern society. Gender norms typically grant more decision-making power to men, and they often hold leadership positions within the community. This practice continues as men’s voices are prioritised in governance and social development matters, which has resulted in the exclusion of women from participating in important decisions that affect their lives and communities, and this is even worse for gender-diverse persons and they do not satisfy the bias ‘male’ and ‘female’ category.

The unequal power dynamics enforced by society’s gender norms have contributed to higher levels of gender-based violence. Domestic violence and harmful practices such as child marriage and female genital mutilation have persisted in some Southern African communities due to these norms. Intersex persons have not been spared from genital mutilation as some have undergone ‘gender reappropriation’ surgeries as infants. There is a growing push in advocacy and legislative reform to protect intersex minors from unconsented gender surgeries as this is a choice that should be for them to make. The influence of gender norms has further influenced healthcare service delivery as sexual and reproductive health and rights development have been limited and not inclusive and accessible for intersex persons. This limitation has resulted in a lack of bodily autonomy for intersex people. Being gender-diverse has many excluded intersex people from essential fundamental health services such as family planning and mental well-being.

Another aspect influenced by gender norms is inheritance rights. Many African societies are built in a cisgender patriarchal system, and because of this, inheritance and property rights have been structured in a way that favoured male heirs. This has often left women and girls without access to land and resources, making them economically vulnerable and dependent on male relatives.

The result of not conforming and fitting into mainstream male or female gender identity often left intersex persons excluded, facing stigma, discrimination and prejudice from various packets of society. Efforts are being made to raise awareness about intersex issues, promote inclusivity, challenge discrimination and prevent the invisibilisation of intersex voices and identies. Intersex justice organisers work to ensure intersex individuals are recognised, respected, and provided with the support and care they need while fighting against harmful practices and discrimination.

Efforts and promoting intersex rights and justice in Southern Africa.

Promoting intersex rights and justice in Southern Africa has become an increasingly important focus for advocacy and human rights organisations in recent years.

Human rights organisations, such as the Southern Africa Litigation Centre, are actively involved in legal advocacy for gender-diverse individuals and work to challenge discriminatory laws and practices, and supporting strategic litigation that promotes the rights of gender minority and gender-diverse people in Botswana, Eswatini, Lesotho and Zimbabwe.

Regional organisations such as Iranti and Gender DynamiX advocate and provide training and educational resources to healthcare professionals, religious and cultural leaders, policymakers, and the public. These advocacy initiatives aim to enhance understanding and sensitivity regarding intersex issues and collaborate with other human rights organisations to foster a more inclusive and accepting society.

Legal and policy developments on intersex rights in Southern Africa.

Legal and policy developments related to intersex rights in Southern Africa have gained momentum in recent years, reflecting a growing recognition of the need to protect the rights of intersex individuals. Additionally, the Protocol to the African Charter on the Rights of Women, a progressive human rights instrument, requires state parties to take specific measures to end violence against women regardless of their sexual orientation or gender identity. Furthermore, the Protocol calls for the ending of genital mutilation and the promotion of bodily autonomy and reproductive health choices of women, including intersex women.

In South Africa, the Promotion of Equality and Prevention of Unfair Discrimination Act as amended in 2005 interprets the definition of ‘sex’ to include intersex persons; therefore, intersex persons are protected from unfair discrimination, harassment, and hate speech and promote equality for intersex persons.

In 2014, the African Commission on Human and Peoples’ Rights adopted Resolution 275, which protects against violence and other human rights violations against persons based on their actual or imputed sexual orientation and gender identity. Resolution 275 expresses grave concern about increasing violence and other human rights violations, including murder, rape, and assault experienced by sexual and gender minorities. It calls upon states to stop such violence and take appropriate measures to ensure adequate remedies for victims.

Botswana made significant progress in 2017 by recognising the rights of transgender and intersex individuals to change their legal gender markers on official documents. This ruling by the Court was a crucial step towards recognising the diversity of gender identities and would pave the way for the protection of gender-diverse persons. In many Southern African countries, such as Eswatini, Lesotho, and Namibia, intersex persons can legally change their name and sex on birth certificates to suit their preferred gender identity per the national registration acts.

In 2022, the Zimbabwean government adopted two recommendations at the country’s Universal Periodic Review at the Human Rights Council on gender minorities, which were to protect intersex minors from unconsented operations surgeries and violations of bodily integrity and to strengthen efforts to address violence against women, children and all persons based on their sexual orientation and gender identity. Intersex advocacy groups in Zimbabwe have been working to raise awareness and challenge harmful practices. Following the adopted recommendations, there is an expectation to see an increase in dialogue between the government and human rights organisations on protecting intersex people’s rights.

In March this year, the African Commission on Human and Peoples’ Rights adopted Resolution 552, which seeks to promote and protect intersex rights on the African continent. Resolution 552 comes with clear recommendations for States to create administrative and legislative measures to protect intersex persons from violent harassment at home, school, the workplace and in the broader society. It calls on member states to ensure that members of their judiciary, immigration officials, law enforcement officers, healthcare and education practitioners, as well as traditional and religious communities, are sensitised to protect, respect and treat intersex people equally without discrimination or prejudice. It further calls for the recognition and protection of intersex movements and human rights defenders to organise without any threats and that perpetrators are tried and persecuted.

Intersex liberation is our liberation too.

The fight for the recognition, protection, and inclusion of intersex people is an ongoing and essential human rights struggle. And while there has been progress, challenges still exist for intersex rights. It is necessary to continue advocating for the full recognition and freedoms of all intersex people, to protect their bodily autonomy, and to ensure that they can live their lives with dignity and without discrimination.

*Bradley Fortuin is the LGBTIQ+ Program Officer at the Southern Africa Litigation Centre and a social justice activist.

This article is part of advocacy efforts on recommendations to the Government of Botswana’s Universal Review of Botswana at the 43rd Human Rights Council. A joint submission Stakeholder Report was submitted by Banana Club, Black Queer DocX, Botswana Trans Initiative, Life|Loss|Love, Mmammati Human Rights Hub, Iranti, the Southern Africa Litigation Centre, and the Sexual Rights Initiative.