The right to non-discrimination as a ground for legal recognition of intersex persons in Nigeria

Abstract

The absence of legal recognition of intersex persons in Nigeria is a discriminatory practice, contravening human rights principles that the Nigerian state ought to protect. Legal recognition for intersex persons occurs when a country allows for the registration of births as female, male, or ‘x’ for ‘other’ or ‘intersex’. Intersex persons are born with sex characteristics that do not fit typical definitions for male or female bodies, including sexual anatomy, reproductive organs, hormonal patterns, and/or chromosome patterns. Therefore, the absence of legal recognition means a human rights infringement and denial of legal identity for intersex persons. Generally in Africa, the widespread lack of recognition of diversity in sex characteristics has occasioned human rights violations against intersex people including so-called normalising surgeries, lack of legal recognition and infanticide.. In Nigeria, there exists an unfair distinction in the absence of laws and practices catering to birth registrations. Nigerian socio-legal context assumes that every person born is either female or male, notwithstanding that scientific evidence exists to the contrary. Similar to discrimination based on people’s non-heterosexual sexual orientation, and based on diverse gender identities and expression, discrimination based on sex characteristics exists to cause people to be treated unfairly. While the three forms of discrimination differ all are interconnected in the sense that they relate to discrimination emanating from cisheteronormative principles of sex, sexuality and gender, and a person may suffer from one, two or all forms. The absence of legal recognition of intersex persons in Nigeria amounts to discrimination, contrary to the provisions of the Constitution. In addition, the continued imposition of the female/male sex markers as provided in the Births, Deaths, Etc. (Compulsory Regulation) Act (the Births Act) of Nigeria amounts to discrimination against intersex persons in Nigeria. This position is in breach of Nigeria’s obligations to its peoples, evidenced through the Constitution and its human rights obligations. The provisions of the Births Act and its lack of recognition of intersex births is a violation of intersex persons’ rights. Also, Nigeria has no provision for legal sex, or gender change is discriminatory. The National Identity Management Commission expressly restricts updating the gender field in its data modification regulations. These amount to discrimination and are antithetical to the principles entrenched in the Constitution. This research aims to prove how the Nigerian situation amounts to discrimination against and negatively impacts the lives of intersex persons.