Statelessness & Citizenship Review 2020 A 1 2(1) Arbitrary Deprivation of Citizenship At Birth For those born intersex in certain parts of the world, statelessness can be a lifelong reality. Within a report on statelessness in East Africa, the United Nations states that intersex children often face difficulties in being issued with birth certificates in Kenya. 61 The 2014 landmark decision in which the Kenyan court ruled positively on the right to citizenship in the case of intersex child ‘Baby A’ is a significant development. 62 Another study covering Uganda, Kenya, and Rwanda similarly records that there has been some progress on the issue, with cases ‘successfully advocated … for amendments around the legal recognition of intersex children — even without a definite sex assignment — as citizens’, yet it notes that ‘[t]here is, however, a lot of work needed to shift social attitudes to meet with legal progression. In all the three East African countries under this study, there is still a huge sense of statelessness for intersex people’. 63 While further research is needed to map out the nuances relating to this persistent ‘sense of statelessness’, the report suggests that children not easily identified as either male or female at birth continue to be at risk of statelessness. On the issue of civil registration, lessons might be drawn from legal reforms that have taken place in Nepal to recognise transgender meti persons as belonging to a ‘third gender’. Prior to a 2007 Supreme Court ruling, many of this community were unable to obtain citizenship cards and were effectively stateless. 64 Their marginalisation was accompanied by targeted persecution from law enforcement officials. The change in the law, which was brought about through a petition from Nepalese non-governmental organisation ‘Blue Diamond Society’ has reportedly also led to a decrease of up to 98 per cent in police violence against members of the meti group. 65 2 Through Marriage/Civil Partnership Statelessness can also be triggered by the entry into a same-sex marriage or nontraditional civil partnership when not recognised by the country and society of citizenship. The story of Ghanaian citizen Stephen Kabutey Ofoi Caesar, who held a civil union with his American boyfriend in the USA, is a case in point. In 61 62 63 64 65 Bronwen Manby, Statelessness and Citizenship in the East African Community (Study, UNHCR September 2018) <https://data2.unhcr.org/en/documents/download/66807>. On intersex children, see also United Nations Committee on the Rights of the Child, Concluding Observations on the Combined Third to Fifth Periodic Reports of Kenya, CRC/C/KEN/CO/35 (21 March 2016) [29]–[30]. See Baby ‘A’ (EA) v Attorney General, Constitutional Petition No 266 of 2013 [2014] eKLR (Kenya). Baseline Survey on Intersex Realities in East Africa: Specific Focus on Uganda, Kenya and Rwanda (Report, Support Initiative for People with Congenital Disorders 2016) 25. Michael Bochenek and Kyle Knight, ‘Establishing a Third Gender Category in Nepal: Process and Prognosis’ (2012) 26(1) Emory International Law Review 11. See also Pant v Nepal Government [2007] Writ No 917 of the year 2064 BS (Supreme Court Division Bench of Nepal), translated in Yadav Pokharel (tr), ‘Sunil Babu Pant and Others v Nepal Government’ (2008) 2(1) National Judicial Academy Law Journal 261. Jean-Sébastien Blanc, Towards the Effective Protection of LGBTI Persons Deprived of Liberty: A Monitoring Guide (Guide, Association for the Prevention of Torture 2018) 102–3. 75