It belongs to you, but other people use it more than you do. What is it? Your name. Our names carry an incredibly important part of our identity. They carry deep personal, cultural, familial and historical connections. They also give us a sense of who we are, the communities in which we belong and our place in the world. Names are therefore part and parcel of our being.
At birth people are given a name and gender marker based on the doctor’s examination of their genitalia. Their birth certificate is designated the gender marker male (M) female (F). For transgender, intersex and Gender non-conforming persons, this gender marker does not match their gender identity. When they transition socially and are living as their self-affirmed gender, if their legal documents do not reflect this gender, it can present challenges to their well-being.
Just like people judge a book by its cover; people also judge one another by their names and their gender markers. Taking into consideration the crucial role that these two play in our lives, imagine the tragedy that comes with having a name and a gender identity that does not properly identify who you are. It must be very antagonising and depressing to constantly listen to people referring to you wrongly. The psychological torment that one has to go through as they are called by names that they do not reflect their identity. It’s a feeling that vexes the souls of some making them to never be at peace with themselves and others. This situation reflects most lives of Transgender, intersex and Gender non-conforming (ITGNC) persons.
For most ITGNC refugees and asylum seekers in Kenya, this is their life’s story. In Kenya, there is no statutory authority or regulatory policy that has been developed to enable ITGNC refugees and asylum seekers to change their names and gender markers in their documentation. Article 7 of the United Nations convention on rights of a child prescribes that: The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, and the right to know and be cared for by his or her parents. Following this law, most ITGNC refugees and asylum seekers at birth are given names and gender markers that reflect their sex while still in their home country. By the time most of them flee from their home countries, their documents hold a name and gender marker that does not conform to their gender identity and as a result they are faced with gender dysphoria.
When these people come into our country seeking asylum and protection as refugees, they are still subjected to the same plight. The documents that they might have come with (if at all one fled with their documentation) into the country are the same ones used to register them which means that the same gender marker and name in those documents is reflected in the registration documents that they are issued here in Kenya. ITGNC refugees or any other refugee for that matter is never accorded an opportunity to change their name or gender marker to one that conforms to their gender identity. Therefore, the gender dysphoria that begun in their home country continues in the host country.
This is the position held in most jurisdictions all over the world. However, some nations have emerged in recognizing this right and implementing it in their management and care of refugees.
In Greece, for example, the District court of Mitilini allowed a transgender refugee to change the data on their ID documents. The applicant, a Bangladeshi national, fled her country after suffering abuse on account of her gender transition and applied for international protection in Greece. She was found to belong to a particular social group at risk of persecution and her request was granted. As she was then issued identity and travel documents with data that did not correspond to her gender identity, she requested an official modification of her name and surname.
In granting this right the court reiterated that the core characteristic of the refugee identity is the rupture in an individual’s relations with their home country, where they are at risk of persecution. Referring to Article 25 of the 1951 Refugee Convention and clarifying that the applicant is not in a position to request the name change from her home country, the Court stated that the Greek authorities must be able to ensure that the applicant can fully exercise her rights in this respect.
In this application, the court also noted that the principle of equality, as enshrined in the International Covenant on Civil and Political Rights, and the constitutional protection of human dignity must be interpreted as requiring that any special procedure on gender-based name change is applied to asylum applicants and refugees by analogy.
In Germany also, when it comes to changing names, German authorities may, as a general principle, only permit the name change of German citizens. In the relevant legal text, the Act on Changing Surnames and First Names (NamÄndG) and the corresponding administrative provision, stateless persons and recognised refugees as well as persons entitled to asylum have the same status. Hence first name and/or surname of such persons can be changed provided that such change is justified by an important reason. However, the applicant shall only be accepted to change their name when they prove that their legitimate interest in protection outweighs the public interest in maintaining the current name.
Further the UNHCR Resettlement guidelines provide that where an asylum seeker’s official documents from their country of origin do not reflect their gender identity and where they do not have any documents; their sex & name at birth should only be recorded under the bio-data. Their chosen name should be provided under Alias names while their chosen pronoun and preferred gender should be recorded throughout the rest of the Resettlement Registration Form.
In conclusion therefore, refugees should be accorded the same opportunity to change their names as the nationals of their host country. This will go a long way in solving some problems that the ITGNC refugees face including the gender dysphoria they face.
Author: Byron Mati (JKUAT Legal Clinic)