by Tanishtha Bhatia Sen Gupta*
Only 26 countries in the world recognise same sex marriage, whereas over 70 have a range of laws that deem forms of ‘homosexual activity’ illegal. Punitive laws range from the death penalty to imprisonment and punishment. An even larger number of countries do not recognise the right to change one’s gender assigned at birth. In addition, Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI) people are often stigmatized, discriminated against and attacked for their sexual orientation and gender identity.
Kenya is one such country where homosexual acts are criminalized. Section 162 of Kenya’s penal code, under ‘Unnatural Offences’ deems “carnal knowledge of any person against the order of nature” as a felony punishable by up to fourteen years in prison. These laws validate discrimination against the LGBTQI community, which include: disownment, suspension and expulsion from schools, difficulty being employed or keeping employment, and the constant threat of violence. This is preventing the LGBTQI community in Kenya from fulfilling their civil, political, social and economic rights set out by International Law. In addition, the sale, distribution or public exhibitions of visual documentation that may ‘corrupt morals’ are also prohibited by Chapter 63 of the Kenyan Penal code, preventing any positive visual representation of LGBTQI people.
Discrimination of the LGBTQI community in Kenya is contingent on a range of historical and social factors. Anti-homosexual legislation in Kenya originates from laws introduced by the British colonial rule (Weiringa and Sívori, 2013, 2). Religious entities such as colonial Christian missionaries promoted a hetero-normative agenda, similarly affecting social norms and public opinion on the matter.
At the forefront of combatting the discrimination of people based on their Sexual Orientation and Gender and Identity Expression (SOGIE), we find various Non-Governmental Organisations (NGOs) such as Rainbow Women of Kenya (RWOK) (Epprecht, 2013, 2). This is a grassroots organisation based in the coastal city of Mombasa, dedicated to Lesbian Bisexual and Queer (LBQ) women.
Interviewing a member of Rainbow Women, Gerald Hayo, provides invaluable insight into the situation of SOGIE in Kenya, looking specifically at the less cosmopolitan regions of the coastal areas. While LGBTQI organisations in Kenya have worked tirelessly to improve the overall situation, a demand for dedicated organisations addressing the needs of each identity within the LGBTQI community has emerged. Hayo explains the implications of being an LBQ woman, while shedding light on the disproportionate focus on some SOGIE identities over others.
Hayo notes that contemporary Kenyan society is also very patriarchal in nature, the symptom of which is also demonstrated within the LGBTQI movement. She says, although “the whole LGBTQI community has been working as a team, in the past”, the different identities encompassed have very diverse needs. It has become apparent that gay men have benefited the most from this united front, not only in terms of visibility but also in terms of legal and medical services. Hayo draws our attention to the specific NGO-run clinics for gay men or men that have sex with men (MSM), which provide essential sexual health care. She attributes the availability of these services for gay men to the lack of understanding of SOGIE: “most people believe that homosexuality is two men having sex”. She adds, “If we merge them together other groups don’t have a chance to address their specific issues”. Hayo uses the example of NGO meetings on LGBTQI issues where this patriarchal dominance dictates the nature of the meeting, where “it’s more the gay men that will talk about their issues and leave out the other identities.” It is clear that the intersectional nature of LBQ women’s identity adds an additional hindrance to realising their rights.
Although the advancement in services for gay men is a positive feat, it has had an adverse effect on other SOGIE identities. It may appear as though LBQ women and Transgendered people have been “left behind” in the movement; Gay men have become key representatives for the entire community. This is problematic as they do not face the same issues and are unable to fully articulate the lived experience of an LBQ woman, therefore overlooking the severity of their issues. Hayo explains that this realisation has demonstrated a need for specified organisations in Kenya. Programme funding and safe spaces often favour gay men specifically, presenting an internal conflict amongst LGBTQI groups for resources.
In order to fully understand the urgent need for specified programmes, Hayo draws attention to the thematic issues faced by LBQ women in Mombasa, but also in the wider Kenyan context. There is an overarching issue of safety; this is something that is universal to all identities within the LGBTQI community in Kenya and in the wider global context. However, as women in a patriarchal society, LBQ women bare the brunt of more nuanced discrimination and gender-based violence.
On the whole, experiences of street harassment, verbal abuse and physical attacks are common in the coastal region, and less common but still prevalent in the cosmopolitan capital of Nairobi. Hayo highlights that the lack of access to security services has a devastating effect on LBQ women: “Mombasa is very hostile, a part of this is the dominant conservative Muslim population”. Conservative interpretation’s of Islam, like Christianity, condemns same-sex relations. This evokes the idea of “Moral Arrest”, where law enforcement sides with the attacker rather than the victim, as they are morally opposed to the victim’s SOGIE. This is a phenomenon which can be particularly dangerous for LBQ women, as they fall victim to sexual violence within police custody. There have been cases of masculine-looking women being placed into male cells where they are raped by other inmates, or worse, by law enforcement themselves. This is an occurrence which has been deemed as torture by wider international and regional jurisprudence (ACHPR, 2017, Para 57).
The patriarchal structure of Kenyan society means reporting a break-in, robbery or accident can be dangerous for LBQ women. Hayo explains: “Instead of helping you look for the thief they will ask where your husband is, why you live alone, or why you live with another woman, or often asking for bribes”. To avoid these invasive questions, which may lead to moral arrests, most LBQ women end up not reporting crimes against them, a form of structural discrimination that ultimately deprives them of their right to equal treatment under the law.
Forms of violent acts and ill-treatment experienced by LBQ women specifically has a bearing on many aspects of their social life. Young LBQ women are often disowned by their families due to their sexual orientation and left to their own devices. With no access to education “because they were disowned so their families stopped paying for their school fees”, these young women have no income or shelter. Hayo describes that being put in these dire situations has shown a rise in mental health issues and an epidemic of drug abuse amongst young LBQ women in Kenya: “There is no specific space where we can give them counselling and other services in Mombasa.” Safe spaces and charities that do exist also discriminate against these women, leaving them with no options.
Another severe act of violence endured specifically by LBQ women is the notion of ‘corrective rape’, gender-based violence that is also considered a form of torture by the African Commission on Human and Peoples’ Rights (ACHPR, 2017, Para 58). This is the use of rape as a weapon to ‘cure’ women and teach them to conform to hetero-normative societal values. Cases of forced marriage are also a prevalent tactic used against LBQ women. Rape in general is very taboo in Kenyan society and the nature of corrective rape in conjunction with discrimination from law enforcement further deters women from reporting these incidences; instead they remain “suffering in silence”. Speaking from personal experience, Hayo explains that often it is family members that organise or perpetrate this violence. In addition to the emotional trauma and mental health problems, this form of violence leads to further physical complications. LBQ women that have been made to endure this violence may find themselves pregnant, in which case they face further stigma and discrimination as the child is considered to be conceived “out of wedlock”.
The lack of support for LBQ women who are mothers is an issue that Hayo is particularly passionate about. As a mother herself, she has experienced just how difficult it can be. Being deprived of education or employment makes it impossible for these women to provide for their children or put them through school. This in turn extends the cycle of children being deprived of their basic human rights, as services for single mothers also discriminate against women based on their SOGIE.
Article 43(1) of the Kenyan constitution provides that “Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care”. Human rights notions of non-discrimination and the right to privacy, health and safety should apply equally to LGBTQI people. The aforementioned security risks and violence faced by LBQ women have an impact on their access to health services. While many organisations work on the sexual health of Gay men or MSM, there are no organisations dedicated to the health needs of LBQ women. This is partly due to lack of understanding of the specific needs and risks that LBQ women face. Assumptions that women in same-sex relationships are not at risk of contracting STIs and HIV are dangerous to their sexual health. In addition, Hayo highlights that masculine-presenting lesbian women often face another level of stigma. As their difference is visible, healthcare professionals are hesitant to provide treatment due to their moral opposition to homosexuality. This results in some LBQ and Trans women “not seeking medical attention because of fear of discrimination”. Hayo highlights that “we are experiencing early deaths and we can’t even report our cases”. In addition, requirements to provide an emergency contact and other information can be a further deterrent. When someone is admitted to hospital, Hayo explains, “they will ask you for a partner who has to be a man or for your parents but maybe you have been disowned.”
Visibility, or the lack thereof, has emerged as an overarching reason for discrimination. While there are many negative representations and misconceptions of LBQ women, the need for positive visibility has become more apparent. In an effort to “create visibility and combat stigma” Hayo developed a programme through Rainbow Woman of Kenya. RWOK is the only organization dedicated to improving the current situation of health and legal rights for LBQ women in Mombasa.
Although activist work for any LGBTQI identity is very dangerous, especially given the more conservative context of Mombasa, Hayo highlights the urgent need for more specified work to be done through her work with RWOK. Hayo has developed a range of projects. One project that stands out is “Girls Pride”, implemented by LBQ women who visit schools to mentor young girls and to provide them with sanitary products. The premise of the project is based on ensuring girls remain in education even after puberty. As sanitary products are expensive many girls are unable to afford them and therefore stop attending school. Funding for LGBTQI organisations on the whole is scarce and even more so for LBQ specific ones. This project uses a model of reinvested income, by engaging LBQ women in Mombasa to come together to make beaded bracelets and other accessories in rainbow colours, which are then sold. The profit from these accessories not only provides funds to buy sanitary products for the project, but also provides a small income for these women. The school visits have had a positive impact as it also provides a safe space for these young girls to express “what is going on with them” and even get advice. As this project is not solely targeted at young LBQ girls, RWOK is also able to apply for government funding, demonstrating the necessary ingenuity needed for LBQ organisations to sustain themselves.
Lack of mental heath services for LBQ women presents a gap in pastoral support. To bridge this gap, RWOK also runs a monthly event called ‘Power Vibes’, “where LBQ women build a network, can air their grievances and share stories”. It is also a safe place for young LBQ women to ‘come out’ and seek advice on how to navigate the homophobic social terrain. As there are no health services targeted at LBQ women, several organizations have formed partnerships with mainstream health service providers.
In a country where your very existence is a crime, we see the importance of solidarity networks. Hayo explains that “some bigger organisations have trained health professionals and lawyers” on the specific needs of people from the LGBTQI community. These allies are invaluable to legal and health clinics run by RWOK. They bring in lawyers and healthcare professionals who are able to provide advice to LBQ women in Mombasa. There is hope that this will create a ripple effect, combatting stigma within the wider healthcare and legal field.
NGOs such as RWOK are at the forefront of attempting to change the social position of LBQ women. Overall there is a significant amount of work that still needs to be done to combat the residual effect of heteronormative colonial laws in the form of systematic social and structural violence faced by LBQ women.
*Tanishtha Bhatia Sen Gupta is a current student on the MA in Understanding and Securing Human Rights, School of Advanced Study, University of London. She originally met Gerald Hayo as part of her MA studies during a lecture on protecting human rights defenders.
Hayo, Gerald. Interview by Author. Audio Recording. London, Mombasa, 14th May 2018.
African Commission on Human and Peoples’ Rights. General Comment No. 4 on the
African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5). Gambia: March 2013.
Epprecht, Marc. Sexuality and Social Justice in Africa– Rethinking Homophobia and forging resistance. London and New York: Zed Books, 2013.
Weiringa, Saskia and Sívori, Horacio. “Sexual politics of the global South: framing the discourse” in. The Sexual History of the Global South, London and New York: Zed Books, 2013. pp.1-21