LGBQ Rights: Human Rights for Equality and Justice
LGBQ rights are human rights aimed at promoting social and legal equality for lesbians, gays, bisexuals, and queer (LGBQ) individuals. These rights address injustices faced by the LGBQ community by outlawing discrimination and violence, advocating for legal reforms in areas such as access to healthcare, education, public benefits, and recognizing diverse relationships and family structures.
As a Member of the LGBQ Community in Kenya, Do I Have Rights?
Yes, members of the LGBQ community in Kenya have the same rights as all citizens. As human beings, their rights are equal to those of everyone else. However, members of the LGBQ community often face challenges in exercising these rights due to certain laws that criminalize same-sex relations.
While some members of the LGBQ community are protected under constitutional provisions against discrimination based on sex and gender, the legal framework does not adequately address the needs of transgender and intersex individuals. This results in difficulties accessing healthcare and changing names or gender markers on official documents.
What Does the Kenyan Constitution Say About My Human Rights as a Member of the LGBQ Community?
The Constitution of Kenya (2010) strongly upholds human rights. Article 19(3)(a) affirms that rights belong to individuals by virtue of being human and are not granted by the state. While some rights can be limited under specific circumstances (Article 24), certain fundamental rights cannot be restricted. These include:
- Freedom from torture and cruel, inhuman, or degrading treatment or punishment;
- Freedom from slavery or servitude;
- The right to a fair trial; and
- The right to habeas corpus (to be brought before a court of law).
What Do Sections 162 and 165 of the Kenyan Penal Code Say?
Sections 162(a) and (c) criminalize acts of “carnal knowledge against the order of nature,” including consensual same-sex sexual activities such as anal sex, oral sex, and other intimate acts. Those found guilty under these provisions can face up to 14 years in prison.
Section 165 specifically targets acts of “gross indecency” between men, which includes non-penetrative sexual activities, such as kissing, hugging, or touching for sexual pleasure. Conviction under this section carries a maximum penalty of 5 years in prison.
How Do These Laws Affect LGBQ Rights?
By criminalizing private, consensual same-sex relations, Sections 162 and 165 infringe on the rights and dignity of LGBQ individuals. These laws perpetuate stigma, discrimination, and violence against people based on their sexual orientation. Transgender and intersex individuals are also at risk of violence and discrimination due to misconceptions about their identities.
Is Being LGBQ a Crime?
No, identifying as lesbian, gay, bisexual, or queer is not a crime. The laws criminalize specific acts, not identities. Openly expressing one’s identity is protected under Article 33 of the Constitution, which guarantees freedom of speech and expression.
Can an Employer Fire Me or Deny Me Employment Based on My Sexual Orientation or Gender Identity?
No, the Employment Act prohibits discrimination in the workplace. Employers must promote equality of opportunity and cannot directly or indirectly discriminate against employees or job applicants based on sexual orientation or gender identity. For instance:
- Direct discrimination: Refusing to hire someone due to their sexual orientation.
- Indirect discrimination: Imposing rules that unfairly disadvantage certain groups, such as requiring employees to be married by a certain age.
Although the Employment Act does not explicitly mention sexual orientation, its provisions against discrimination on grounds of sex extend protection to transgender and intersex workers.
Can My Landlord Evict Me Due to My Sexual Orientation or Gender Identity?
No. Article 43(1)(b) of the Constitution guarantees every individual the right to accessible and adequate housing. This right applies to all persons, irrespective of sexual orientation or gender identity. Landlords cannot evict tenants without valid reasons or a court order from the Rent Tribunal, as per the Rent Restriction Act.
What is Being Done to Support LGBQ Rights in Kenya?
Several organizations, including the Gay and Lesbian Coalition of Kenya (GALCK), are advocating for LGBQ rights. These groups work on issues such as healthcare access, legal aid, human rights education, and security. GALCK also collaborates with global movements to promote equality and justice for all, regardless of sexual orientation or gender identity.