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LGBTQ rights in Nepal

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LGBTQ rights in Nepal Nepal
Nepal
StatusLegal since 2007
Gender identityYes
MilitaryYes
Discrimination protectionsYes
Family rights
Recognition of relationshipsSame-sex marriage ordered by Supreme Court; yet to take effect.
AdoptionNo

Nepal is one of the most open countries in South Asia for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) rights as the country has recognized LGBTI rights as being fundamental in its constitution. Nepal's current LGBTI laws are some of the most progressive in the world and expand upon multiple rights of LGBTI identified Nepalis.[1]

The Nepalese government, following the monarchy that ended in 2007, legalized homosexuality across the country in 2007 along with the introduction of several new law sets.The new laws explicitly include sexual orientation, a change from the previous constitution.[2]The new Nepalese constitution, approved by the Constituent Assembly on 16 September 2015,[3] includes several provisions pertaining to the rights of LGBTI people, some of which include:[4]

  • The right to have their preferred gender display on their identity cards
  • A prohibition on discrimination on any ground including sex or sexual orientation by the State
  • A prohibition on discrimination on any ground, including sex or sexual orientation by anyone
  • Eligibility for special protections that may be provided by law
  • Substitution of gender-neutral terms for the previous "male", "female", "son", and "daughter"
  • The right of access to state process and public services for gender and sexual minorities

Based on the ruling of the Supreme Court of Nepal in late 2007, the government was also looking into legalized same-sex marriage. According to several sources, the new constitution was expected to include it.[5][6] However, the new constitution appears not to address the legalization of same-sex marriage explicitly.[4] The constitution however, explicitly includes that "marginalized" communities are to be granted equal rights under the law and also mentions that LGBTI identified people in Nepal particularly fall under that marginalized group.[1]

History of LGBTI Rights

Protestors affiliated with the Communist Party of Nepal

Before the transition from The Kingdom of Nepal to the Federal Democratic Republic of Nepal, private, homosexual relations between consenting adults was a crime. Among others, cross-dressing was also illegal under various laws against public immorality.[7] A monumental shift in the declaration of the new government to be a secular state may have allowed for more progressive LGBTI laws to take place.[1] The previous Kingdom of Nepal deemed Hinduism to be its official religion, however, the new government remains secular[8][1]. Although Hinduism does not explicitly state a stance on homosexuality, this recent shift in actively distancing the State from religion may have allowed for progressive legislation furthering LGBTI rights to pass.

Supreme Court Case

Sunil Babu Pant and Others v. Nepal Government

One of the first cases to determine the shift in legislation regarding LGBTI rights in Nepal was the 2007 Supreme Court Case, Sunil Babu Pant and Others v. Nepal Government and Others, Supreme Court of Nepal.[9] On April 2007, a coalition of organizations representing LGBTI identified Nepalis filed a writ petition under Article 107 (2) of the Interim Constitution of Nepal[7]. After their participation in the demonstrations that brought down the monarchy, LGBTI Rights groups, found themselves largely ignored by the current political establishment, and turned to the judiciary as a more effective way to secure their rights.[10]

The petition, filed by the Blue Diamond Society, MITINI Nepal, Cruse AIDS Nepal, and Parichaya Nepal expressed "dissenting view with the prevalent societal structures or norms as well as legal provisions adopted by the state based on the interest of majority people".[9]The petition asked that the Federal Democratic Republic of Nepal officially recognize "transgender individuals as a third gender, prohibit any discriminatory laws on the basis of sexual orientation and gender identity, and invest due finances for reparations by the State to victims of State violence and discrimination.[9]"

On December 21, 2007 the Supreme Court ruled that the new democratic government must create laws to protect LGBTI rights and change existing laws that are tantamount to discrimination.[11][12]Based on the Yogyakarta Principlest and the Special Procedures of the UN Human Rights Council,the court concluded that sexual orientation was one defined by ones self identification and a natural process rather than a result of "mental, emotional or psychological disorder".[7] Furthermore, the court legally established a gender category called "third gender"[7][13]. "Third Gender" was officially described as biological males who identify with feminine gender identity or for biological females who identify with masculine attributes.[13] The Nepal Supreme Court stated that the criteria for identifying as "Third Gender" was based upon the individual's self identification.

The court officially stated that:

"There should be a declaration for full fundamental human rights for all sexual and gender minorities - lesbian, gay, bisexual, transgender, and intersex citizens[7]" as well as “Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person’s self-feeling[9].”

Although a secular State, the Supreme Court's decision to implement a "third gender" may have stemmed from the long held contemporary acknowledgment of gender variant peoples, known as hijras as well as the religious traditions revering non gender conforming characters[13]. Nepal's Supreme Court decision also contrasts its neighboring country, India's recent developments in reviving a colonial-era anti-sodomy law criminalizing same-sex intercourse[14].

Third Gender/Transgender Rights Implementation

Although the court dictated that the category "third gender" be added to all official documents and Nepalis identifying as "third gender" be given a citizenship documents to reflect their new status, implementation of these protocols still lags far behind[13]. However, in the 2011 Nepal census, the Central Bureau of Statistics officially recognized a third gender in addition to male and female.[15] [13] It also issued citizenship with an 'other' option to transgender people.

In 2008, Bishnu Adhikari became the first Nepali Citizen to officially register under the "Third Gender" category, with Badri Pun receiving the second. Other legal accomplishments include allowing citizens to register to vote as the third gender. However, one of the most important milestones in progressive LGBTI rights includes the Central Bureau of Statistics officially recognizing a third gender option in addition to male and female in the 2011 Nepal census.[13]

The census also provides citizenship, passport, Ncell sim card registration, etc. with a third gender or 'other' option. Monica Shahi became the first person to gain a passport with the "other" gender category.[16] In 2015, Bhumika Shrestha became the first transgender woman to travel aboard with a passport that identified her as a "other" gender.[16]

Although Nepal has a lengthy history of acknowledging and even revering gender variant peoples known as hijrasmainstream societal acceptance for "third gender" identified Nepalis still lags far behind.[13]

Impact of 2015 Constitution

In September 2015, several articles mentioning LGBTI in the country's new constitution were approved by Parliament after lengthy deliberation.

These include, but are not limited to:

  • Article 12 of the new constitution states that people have the right to have citizenship ID that reflects their preferred gender.
  • Article 18 covers rights to equality and states that the State will not ‘discriminate [against] any citizens based on origin, religion, race, caste, tribe, gender, language or ideological conviction or any other status.’
  • Article 18 also lists LGBTI people among disadvantaged groups that are recognized by the constitution.

The new constitution states: ‘Nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of the interests of socially and culturally disadvantaged women, Dalits, indigenous peoples, tribes, Madhesi, Tharu, Muslim, ethnic minorities, backward classes, minorities, marginalized, farmers, workers, youth, children, senior citizens, gender and sexual minorities, handicapped persons, pregnant persons, disabled or helpless, people of backward regions and economically disadvantaged citizens.’

  • Article 18 also replaces language in the old constitution that references ‘male and female’ and ‘son or daughter’ with gender neutral terminology.
  • Article 42 of the new constitution lists ‘gender and sexual minorities,’ among groups that will have right to participate in state mechanisms and public services based on the ‘principle of inclusion.’[17]

However, the explicit terms "homosexual" or "same sex" are not mentioned in the new constitution.

The constitution went into effect on 20 September 2015.[18]

Recognition of same-sex relationships

See also: Same-sex marriage in Nepal

On 18 November 2008 the Supreme Court directed the government to enact laws enabling equal rights to LGBTI citizens. While not explicitly legalizing same-sex marriage, the ruling instructed the government to form a committee to look into same-sex marriage.[19] According to Indian media in 2009, a bill for this was being drafted and was supposed to be introduced by 2010.[20] In the drafting of the new Nepalese constitution, same-sex marriage and protection for sexual minorities was supposed to be established.[5][6] However, negotiations on the new Constitution failed and the Prime Minister dissolved the Constituent Assembly on May 28, 2012 in preparations for new elections.[21][22] As a result, the future of same-sex marriage is uncertain.

However, In 2012 Nepal's Supreme Court recognized a live-in relationship between two lesbians despite the efforts of the family of one of the women to separate them.[23] The Court allowed Rajani Shahi to live with her partner Prem Kumari Nepali as she wished, rather than with her husband.[24]

Cultural Attitudes: Rights V.S. Reality

Society

The human rights organization Blue Diamond Society, established in 2001, seeks to represent LGBTI people in Nepal politically and provide assistance with sexual health in the community. A drop-in centre exists in Kathmandu.

The media and public have also become more sympathetic to LGBTI rights since atrocities against the members of the Blue Diamond Society became public.[10] One such incident listed that a police officer had slit the throat of a transgender identified woman.[10]However, according to the Blue Diamond Society, gays, lesbians, bisexuals and Metis (cross-dressing males) sometimes suffer from violence, rape, abuse, blackmailing and murder threats and continue to be discriminated against or even abused in work places.[25]

Gender Based Violence

Gender-based violence (GBV) against transgender people is a severe issue in Nepal where they often find themselves susceptible to both public and domestic violence which constitutes discrimination, abuse in the workplace and at home, and elsewhere. Reasons for gender-based violence are largely attributed to social taboos and superstitions and deeply entrenched beliefs that propagate derogatory attitudes towards sexual and gender minorities. Likewise, results derived from INSEC’s monitoring of the situation indicated that subjugating women to domestic violence was considered a deep-rooted traditional practice.[18] Survey results also show that 20 and 23 per cent of transgender women in Nepal view domestic violence as being acceptable. Despite efforts of various human rights and LGBTI rights NGOs, together with international aid agencies, to lobby for the elimination of violence through implementation of more effective measures. Complaints by transgender rights activists are directed towards the lackadaisical efforts of the law enforcement agencies in which disputes are settled without any charges pressed against the perpetrators.

Education

Literacy rates of transgender people in Nepal still remains very low. In 2014, Blue Diamond Society asked for implementation of rules in educational sector that might bring friendliness to third genders. Transgender people face extreme gender-based violence and this greatly limits their ability to attend school or receive proper education.[26]

Politics

The Communist Party of Nepal-Maoist has made several homophobic statements during the civil war. Until 2007, party members have described homosexuality as "a production of capitalism" that "doesn't exist under socialism", and LGBTI people as "social pollutants."[27] Since 2008 with the end of the civil war and beginning of multi-party democracy, the Maoists have come out as supporters of LGBTI rights.[28][29][30]

Sign welcoming visitors into Nepal

Tourism

The Nepal Tourism Board has made plans to promote Nepal as a gay-friendly tourist destination. An LGBTI Tourism conference was supposed to occur in February 2010. Sensitivity training was said to have been conducted in selected catering and hospitality venues.[31]

Summary table

Same-sex sexual activity legal Yes (Since 2007)
Equal age of consent Yes
Anti-discrimination laws in employment Yes (Since 2015)
Anti-discrimination laws in the provision of goods and services Yes (Since 2015)
Anti-discrimination laws in all others areas (incl. indirect discrimination, hate speech) Yes (Since 2015)
Same-sex marriages No (Pending)
Recognition of same-sex couples No (Pending)
Step-child adoption by same-sex couples No
Joint adoption by same-sex couples No
Gays and lesbians allowed to serve openly in the military Yes
Right to change legal gender Yes (Since 2007)
Third gender option Yes (Since 2011)
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No

See also

References

  1. ^ a b c d [http://constitution.org.np/userfiles/Preliminary-Draft-Constitution-EN.pdf. Web. 5 March 2016.]
  2. ^ [1]
  3. ^ Sharma, Bhadra (16 September 2015). "Assembly in Nepal Approves New Constitution". The New York Times. ISSN 0362-4331. Retrieved 17 September 2015.
  4. ^ a b "Nepal lawmakers approve first LGBTI protections in new constitution - Gay Star News". 15 September 2015. Retrieved 17 September 2015.
  5. ^ a b Parashar, Uptal (19 January 2010). "Nepal charter to grant gay rights". Hindustan Times.
  6. ^ a b Nelson, Dean (19 January 2010). "Nepal 'to stage gay weddings on Everest'". Daily Telegraph. London.
  7. ^ a b c d e Sunil Babu Pant and Others v. Nepal Government. Supreme Court of Nepal. Apr. 2007. Print.[2]
  8. ^ "International Religious Freedom Report for 2014, Nepal". www.state.gov. Retrieved 5 May 2016.
  9. ^ a b c d "Sunil Babu Pant and Others/ v. Nepal Government and Others, Supreme Court of Nepal" (PDF). National Judicial Academy Law Journal. 2008.
  10. ^ a b c Gay activist in Nepal campaigns against discrimination, by Henry Chu, The Christian Science Monitor, 30 June 3008
  11. ^ 365gay.com, "Nepal High Court Issues Landmark Gay Ruling," 21 December 2007 Archived 2007-12-22 at the Wayback Machine
  12. ^ Nepal court rules on gay rights BBC News, 21 December 2007
  13. ^ a b c d e f g Knight, Michael Bochenek, Kyle. “Establishing a Third Gender Category in Nepal: Process and Prognosis.” Emory University School of Law. 01 Mar. 2016.
  14. ^ Stewart, Colin (17 February 2014). "13 arrests in crackdown as India revives anti-gay law". 76 CRIMES. Retrieved 5 May 2016.
  15. ^ Nepal census recognizes 'third gender'
  16. ^ a b "Bhumika Becomes First Transgender to Travel Abroad with 'other' Category Passport." The Kathmandu Post. 06 Oct. 2015. Web. 05 Mar. 2016.[3]
  17. ^ [4]
  18. ^ Nepal approves new constitution
  19. ^ Court Decision, Blue Diamond Society Archived 2009-09-15 at the Wayback Machine
  20. ^ Prince's marriage stokes gay issue, India Today (accessed 1 November 2009)
  21. ^ http://www.nepalnews.com/home/index.php/news/2/19090-ca-dissolved-after-epic-failure.html
  22. ^ "Nepal enters crisis mode as constitution talks fail". BBC News. 28 May 2012.
  23. ^ "Nepal court allows lesbian live-in relationship - The Times of India". The Times Of India.
  24. ^ "Nepal court allows lesbian live-in relationship - The Times of India". The Times Of India.
  25. ^ About Us, Blue Diamond Society (accessed 1 November 2009)
  26. ^ http://ujyaaloonline.com/news/30306/LGBTI/
  27. ^ Human Rights Watch: "Nepal: Maoists Should End Anti-Gay Violence", 16 April 2007
  28. ^ http://newshopper.sulekha.com/nepal-maoists-to-stand-up-for-gay-rights-in-un_news_1007743.htm
  29. ^ http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/906.html
  30. ^ "Nepal to offer shelter to South Asia's battered gays". The Times Of India. 22 June 2011.
  31. ^ 23 October 2009: Nepal to Lure Gay Tourists, The Advocate (accessed 1 November 2009)
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