LGBT rights in Nepal

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Nepal (orthographic projection).svg
StatusLegal since 2007
Gender identityThird gender recognised
MilitaryYes, LGBT people allowed to serve openly
Discrimination protectionsYes, discrimination constitutionally prohibited
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

Lesbian, gay, bisexual and transgender (LGBT) rights in Nepal are among the most progressive in Asia. The Nepalese Constitution recognizes LGBT rights as fundamental rights. Nepal's current LGBT laws are some of the most tolerant in Asia and expand upon a multitude of rights for LGBT Nepali.[1]

The Nepali Government, following the end of the monarchy, legalized homosexuality across the country in 2007 along with the introduction of several new laws. These new laws explicitly include protections on the basis of sexual orientation.[2] The Nepalese Constitution, approved by the Constituent Assembly on 16 September 2015,[3] includes several provisions pertaining to the rights of LGBT people.[4] These are the right to have their preferred gender displayed on their identity cards, a prohibition on discrimination on any ground including sex or sexual orientation by the State and by private parties, eligibility for special protections that may be provided by law, substitution of gender-neutral terms for the previous "male", "female", "son" and "daughter", and the right of access to public services for gender and sexual minorities.

Based on a ruling of the Supreme Court of Nepal in late 2007, the Government was also looking into legalising same-sex marriage. According to several sources, the new Constitution was expected to include it.[5][6] Although the Constitution does explicitly include that "marginalized" communities are to be granted equal rights under the law and also mentions that LGBT people in Nepal particularly fall under that marginalized group, it appears to not address the legalization of same-sex marriage explicitly.[4]

Despite these supportive laws and provisions, LGBT people still face societal discrimination in Nepal and there is significant pressure to conform and to marry a partner of the opposite sex.[7]

Terminology[edit]

The term LGBTI is increasingly used in Nepal, rather than just LGBT, with the I denoting intersex people. The term "gender and sexual minorities" (Nepali: यौनिक तथा लैङ्गिक अल्पसङ्ख्यक) is used in the Constitution of Nepal.[8] Among young Nepalis, the terms "queer" (Q) and "MOGAI" (Marginalized Orientations, Gender Identities, and Intersex) are also used.[9]

Legality of same-sex sexual activity[edit]

Before the transition from the Kingdom of Nepal to the Federal Democratic Republic of Nepal in 2007, private homosexual relations between consenting adults was a crime.[10] Among others, cross-dressing was also illegal under various laws against public immorality.[11]

The age of consent in Nepal is 16, regardless of gender and sexual orientation.[12]

Recognition of same-sex relationships[edit]

Same-sex marriage is not legal in Nepal.

Sunil Babu Pant and Others v. Nepal Government[edit]

The Nepali Supreme Court (pictured) issued a ruling in 2007 in the case of Sunil Babu Pant and Others v. Nepal Government in favor of LGBT rights.

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.[13] After their participation in demonstrations that brought down the monarchy, LGBT 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.[14] In April 2007, a coalition of organizations representing LGBTI Nepalis filed a writ petition under Article 107 (2) of the Interim Constitution of Nepal.[11]

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".[13] 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".[13]

On 21 December 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.[15][16] Based on the Yogyakarta Principles and the Special Procedures of the UN Human Rights Council, the court concluded that sexual orientation is to be defined by one's self-identification and a natural process rather than a result of "mental, emotional or psychological disorder".[11] While not explicitly legalizing same-sex marriage, the ruling instructed the Government to form a committee to look into "decriminalizing and de-stigmatizing same-sex marriage".[17]

Response to the ruling[edit]

A bill to legalize same-sex marriage was being drafted and was supposed to be introduced by 2010.[18] In the drafting of the new Nepalese Constitution, same-sex marriage and protection for sexual minorities were supposed to be established.[5][6] However, negotiations on the new Constitution failed and the Prime Minister dissolved the Constituent Assembly on 28 May 2012 in preparation for new elections.[19] As a result, the future of explicitly addressing the legality of same-sex marriage was uncertain. Ultimately, the Constitution was adopted in 2015 but does not address same-sex marriage.

As of 2019, a bill to legalise same-sex marriage was being drafted and prepared by the Government,[20] though LGBT activists have accused it of being "lukewarm" in its support. In August 2018, former Prime Minister Baburam Bhattarai urged the Government to legalise same-sex marriage.[21]

The new Nepali Civil Code, which came into effect in August 2018, does not address same-sex marriage and specifically defines marriage as being between opposite sexes. Activists have called out the Civil Code as unconstitutional and contrary to Supreme Court guidelines, though the Government has affirmed that it intends to legalize same-sex marriage in a separate law.[20][22]

Gender identity and expression[edit]

The Supreme Court has dictated that the category "other" or anya (Nepali: अन्य), representing non-cisgender identities be added to all official documents and Nepalis identifying as such be given citizenship documents to reflect their new status.[23] The Government has started issuing citizenship with an "other" ("O") option to transgender people on a rolling basis. This allows for "third gender" identifying individuals to open bank accounts, own property and register for universities. In 2008, Bishnu Adhikari became the first Nepali citizen to officially register under the "third gender" category, with Badri Pun being the second. Other legal accomplishments include allowing citizens to register to vote as "third gender".[23]

One of the milestones in progressive LGBT rights includes the Central Bureau of Statistics' official recognition of a "third gender" option, in addition to male and female, in the 2011 Nepal census.[23] As the world's first national census to list a category other than male or female, it allowed for the Government to gain data on the number of "third gender" identifying Nepalis. Monica Shahi became the first person to gain a passport with the "other" gender category.[24] In 2015, Bhumika Shrestha became the first transgender woman to travel aboard with a passport that identified her as an "other" gender.[24]

Gender recognition[edit]

Nepal, similarly to India, Bangladesh and Pakistan, has a vibrant indigenous third gender community, considered by society as neither male or female. Such individuals, known as metis, are assigned male at birth but commonly act, dress and behave as female. Although metis (मेटी) have traditionally had important roles at weddings or at the birth of a child to ward off evil spirits, they now regularly face discrimination in education, health, housing, and employment. They are often referred to as transgender in English language publications. The term fulumulu (फुलुमुलु) is used in eastern Nepal.[25] Among the Gurung people, there is a tradition of men dancing in female clothing, called maarunis, typically at barracks or at royal palaces, and are believed to bring good luck.[26]

In 2007, the Supreme Court legally established a gender category called "other".[11][23] The Nepali Supreme Court stated that the criteria for identifying one's gender is based on the individual's self-identification.[27]

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 metis as well as the religious traditions revering non-gender conforming characters.[28] In a global perspective, Nepal's Supreme Court decision also contrasts with neighboring India's developments in reviving a colonial-era anti-sodomy law criminalizing same-sex intercourse.[29] However, in other Asian countries/territories such as Hong Kong, Malaysia and Pakistan, there have been trends of progressive judicial decisions on the rights of LGBT people.[30]

Nepalese law only allows gender markers to be changed from "M" (male) or "F" (female) to "O". There are no provisions allowing transgender women to have an "F" marker or transgender men having an "M" marker. Certain activists and young LGBTI Nepalis have criticized what they call a "gender trinary", instead advocating for complete self-determination.[31] In 2019, LGBT activist Rukshana Kapali took an open stand against labeling herself as "third gender".[32]

Hormone replacement therapy and sex reassignment surgery are technically not available in Nepal,[33] though some doctors may perform such procedures. However, they are reported to be "costly". Hormone replacement drugs cost 4,500 rupees for a six-month period. Many Nepali transgender people go to Thailand or India to undergo reassignment surgery.[34] As of 2019, there are discussions within Parliament to require applicants to undergo sex changes in order to apply for an "O" sex descriptor.[35]

Provisions of the 2015 Constitution[edit]

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

  • Article 12 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.

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 replaced language from the old Constitution that referenced "male and female" and "son or daughter" with gender-neutral terminology.
  • Article 42 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".[36][1]

The Constitution is in effect since 20 September 2015.[37]

Living conditions[edit]

Pride festival in Nepal in 2013

Society[edit]

While the Nepalese political landscape has rapidly changed in the past decade, much of the progressive legislation has not been implemented at the community level. Traditional Nepalese gender roles stem from rigid ideals based on biological sex that ostracize anyone failing to conform.[28] These norms may stigmatize any LGBT Nepalis who choose to operate outside of the gender roles, but affect LGBT women in particular, as women, more than men, are expected to conform to societal expectations.[38]

However, human rights organizations like the Blue Diamond Society (Nepali: नील हीरा समाज), established in 2001, seek to represent LGBT people in Nepal politically and provide assistance with sexual health in the community. A drop-in centre with free HIV testing exists in Kathmandu along with more than 50 different branches of the organization across the country. Other organizations such as Mitini Nepal (Nepali: मितिनि नेपाल), Parichaya Samaj and Sahaayam Nepal also exist to provide resources for LGBT Nepalis. The media and public have also become more sympathetic to LGBT rights since homophobic acts and crimes against members of the Blue Diamond Society became public, and after they started their radio program called Pahichan, a program that discusses sexual and gender minority rights.[28][14][38]

Nepal Pride is an annual LGBT event held in Kathmandu. It was first held in 2001 and was attended by 49 people, most of whom wore masks to avoid being recognized. In recent years, the event has attracted about 1,500 people.[39] It purposefully coincides with the Gai Jatra festival, one of the oldest festivals celebrated in the Kathmandu Valley.

Violence[edit]

Gender-based violence 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. Violence also stems from law enforcement such as the police force, as many LGBT individuals report severe beatings, body searches and undue detainment.[38] Likewise, results derived from INSEC's monitoring of the situation indicated that subjugating women to domestic violence was considered a deep-rooted traditional practice.[40]

Survey results also show that 20-23% of transgender women in Nepal view domestic violence as being acceptable. Despite efforts of various human rights and LGBT rights NGOs, together with international aid agencies, to lobby for the elimination of violence through the 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.[38]

Education[edit]

The United Nations Development Programme has recommended that Nepal incorporate these ideals into the education system to ensure inclusive and equitable quality education:[30]

  • Require all schools and other education providers to adopt anti-bullying policies to protect LGBTI students, and ensure teachers receive training on how to respond to homophobic and transphobic bullying.
  • Integrate education on sexual orientation, gender identity, gender expression, and intersex status into school curricula in age-appropriate ways.
  • Provide non-discriminatory sex education to address taboos surrounding adolescent sexuality, sexual orientation, gender identity, and gender expression and provide adolescents with access to accurate information about the diversity of sexualities, gender identities, and sex variations.
  • Recognize the right of students to freedom of gender expression in the school environment. Students should be allowed to wear uniforms and express an appearance that corresponds to the gender with which they identify.
  • Provide all students, including transgender and intersex students, with access to safe toilets and bathroom facilities.
  • Develop policies and practices to support transgender students who transition while at school, including by ensuring their rights to privacy, dignity, and respect, and enabling their name and sex or gender details to be amended on school records.
  • Provide educational resources for parents of LGBTI children

Nepal's Education Board has implemented information about sexual and gender diversity in the curriculum of grades 7-9 (age 13-15), making Nepal the second Asian country, after Mongolia, to implement this.[28] Universities also possess courses about LGBT issues. However, many LGBT children still face discrimination and are unable to complete their education due to "threats, bullying, and neglect from fellow students and teachers alike."[38] Furthermore, transgender Nepalis face severe gender-based violence and are unable to receive a proper education, especially in rural areas.[41]

Third gender literacy rate[edit]

Blue Diamond Society has asked for the implementation of educational rules that might bring acceptance to "third gender" people, as they face severe gender-based violence and this greatly limits their ability to attend a school or receive a proper education.[41]

Politics[edit]

There has been an increased level of participation in the political arena by openly LGBTI politicians such as Sunil Babu Pant, the first openly gay parliamentarian in Asia.[30] Pant served from 2008-2012.[28] Pant was also one of the 27 experts at the meeting consolidating the Yogyakarta Principles.

The Communist Party of Nepal-Maoist made several homophobic statements during the Civil War. Until 2007, party members had described homosexuality as "a production of capitalism" that "doesn't exist under socialism", and LGBT people as "social pollutants."[40] Since 2008, with the end of the insurgency and the beginning of a multi-party democracy, the Maoist Party has come out as supporters of LGBT rights.[42][43]

Health[edit]

The HIV/AIDS epidemic affects LGBTI Nepalis across the board. 2009 estimates showed that about 3.8% of men who have sex with men (MSM) in Nepal were HIV-positive; an increase from 3.3% in 2007. In 2007, MSM in Nepal were 9.2 times more likely to acquire HIV infection than heterosexuals, notably lower than neighboring China (45 times more likely) or India (17.6 times more likely).[44]

Lesbian couples are also denied access to vitro fertilization (IVF). Across the country, there is a severe lack of access to comprehensive health care as well as a lack of research on the mental, physical, and reproductive needs of LGBT Nepalis.[28]

Tourism[edit]

The Nepal Tourism Board has made plans to promote Nepal as an LGBT-friendly tourist destination. An LGBT tourism conference occurred in February 2010. Sensitivity training was conducted in selected catering and hospitality venues.[45]

Prominent LGBT organizations, figures and events in Nepal[edit]

An LGBT march, initiated by Mitini Nepal, in Kathmandu on 14 February 2019

Organizations[edit]

Multiple LGBT organizations exist in Nepal. These include:

  • Blue Diamond Society
  • Mitini Nepal, an organization for lesbian, bisexual and transgender women[46]
  • Inclusive Forum Nepal[47]
  • Sahaayam Nepal, works in "sexual and reproductive health and rights of Nepalese youth, and providing comprehensive sexuality education workshops in schools and colleges"
  • Queer Youth Group
  • Queer Rights Collective
  • Body and Data
  • Campaign For change, the first and the only intersex rights organization of Nepal

Figures[edit]

  • Anjali Lama, a transgender model[48]
  • Suman Pant, whose Supreme Court case established a precedent for same-sex spousal visa[49]
  • Sunil Babu Pant, the first openly gay legislator in Nepal
  • Bhumika Shrestha, a "third gender" advocate

Events[edit]

Several LGBT-related events are held in Nepal. These include the main Nepal Pride Parade on 29 June, along various other pride parades and the National Gender and Sexual Minorities Day. International events such as the International Transgender Day of Visibility, the National Coming Out Day and the Transgender Day of Remembrance are also observed.[50]

Several smaller events include Asexual Awareness Week (Last week of October), Celebrate Bisexuality Day (23 September), an awareness day for hijras (17 April) and Intersex Awareness Day (26 October). An "International Day for Men who are attracted to Transwomen" is also celebrated on 5 April.[51]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 2007)
Equal age of consent Yes (Since 2007)
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 (Proposed)
Recognition of same-sex couples No (Proposed)
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT people allowed to serve openly in the military Yes (Since 2007)
Right to change legal gender No
Third gender option Yes (Since 2011)
Access to IVF for lesbian couples No
Commercial surrogacy for gay male couples No (Banned regardless of sexual orientation)
MSMs allowed to donate blood No

See also[edit]

References[edit]

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  2. ^ "Nepal's Constitution of 2015" (PDF).
  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. Archived from the original on 23 January 2010.
  6. ^ a b Nelson, Dean (19 January 2010). "Nepal 'to stage gay weddings on Everest'". Daily Telegraph. London.
  7. ^ "Pant urges Adhikari to change his flawed lenses". 29 August 2018.
  8. ^ "Enshrining the rights of sexual and gender minorities in the Constitution of Nepal". UNDP Asia Pacific.
  9. ^ "How do transwomen describe themselves? Women". The Kathmandu Post.
  10. ^ "Sunil Babu Pant and Others/ v. Nepal Government and Others, Supreme Court of Nepal (21 December 2007) | ICJ". www.icj.org. Retrieved 5 May 2016.
  11. ^ a b c d Supreme Court of Nepal. Apr. 2007. Sunil Babu Pant and Others v. Nepal Government
  12. ^ "Nepal Age of Consent & Statutory Rape Laws". www.ageofconsent.net.
  13. ^ a b c "Sunil Babu Pant and Others/ v. Nepal Government and Others, Supreme Court of Nepal" (PDF). National Judicial Academy Law Journal. 2008.
  14. ^ a b Gay activist in Nepal campaigns against discrimination, by Henry Chu, The Christian Science Monitor, 30 June 3008
  15. ^ 365gay.com, "Nepal High Court Issues Landmark Gay Ruling," 21 December 2007 Archived 22 December 2007 at the Wayback Machine
  16. ^ Nepal court rules on gay rights BBC News, 21 December 2007
  17. ^ Court Decision, Blue Diamond Society Archived 15 September 2009 at the Wayback Machine
  18. ^ Prince's marriage stokes gay issue, India Today (accessed 1 November 2009)
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  20. ^ a b "Govt to introduce special laws to address the same-sex marriage". 25 February 2017.
  21. ^ "Ensure the marriage rights of LGBTI : BRB". 27 August 2018.
  22. ^ "Marriage provision under new civil code of is unconstitutional". 23 August 2018.
  23. ^ a b c d Knight, Michael Bochenek, Kyle. “Establishing a Third Gender Category in Nepal: Process and Prognosis.” Emory University School of Law. 01 Mar. 2016.
  24. ^ a b The Kathmandu Post. 06 Oct. 2015. Web. 05 Mar. 2016.Bhumika Becomes First Transgender to Travel Abroad with 'other' Category Passport.
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  27. ^ "निर्णय नं. ९८७५ - परमादेश (The official supreme court decision". Nepal Law Magazine.
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  29. ^ Stewart, Colin (17 February 2014). "13 arrests in crackdown as India revives anti-gay law". 76 CRIMES. Retrieved 5 May 2016.
  30. ^ a b c "Leave no one behind: Advancing social, economic, cultural and political inclusion of LGBTI people in Asia and the Pacific - Summary" (PDF). United Nations Development Programme. 2015.
  31. ^ "Moving beyond two, stuck in three". Kathmandu Post.
  32. ^ "I am not a third gender : Rukshana". Pahichan Media.
  33. ^ "Right to choose". The Kathmandu Post. 19 March 2019.
  34. ^ Manandhar, Shilu (3 December 2014). "In Nepal, Transgender People Spend Hefty Sums, Risk Health Problems to Manifest Their Gender Identities". Global Press Journal.
  35. ^ "Nepal government's citizenship bill clause on sex change certification alarms LGBT community". The Kathmandu Post. 19 March 2019.
  36. ^ "Nepal lawmakers approve first LGBTI protections in new constitution". pahichan.com. 15 September 2015. Retrieved 13 October 2016.
  37. ^ "Nepal approves new constitution". BBC News. 17 September 2015. Retrieved 13 October 2016 – via www.bbc.com.
  38. ^ a b c d e Greene, Sophia (2015). "Gender and Sexuality in Nepal: The Experiences of Sexual and Gender Minorities in a Rapidly Changing Social Climate". Independent Study Project (ISP) Collection.
  39. ^ "LGBTI community observes Gai Jatra pride demanding to amend civil and criminal code". 27 August 2018.
  40. ^ a b Human Rights Watch: "Nepal: Maoists Should End Anti-Gay Violence", 16 April 2007
  41. ^ a b "तेश्रोलिंगी भएकै कारण शिक्षा लिने अवसरबाट बञ्चित हुन नदिने". ujyaaloonline.com. Retrieved 13 October 2016.
  42. ^ Anonymous (21 May 2009). "Nepal: Lesbian Visibility Increases After the Government Recognizes LGBT Rights". iglhrc.org. Retrieved 13 October 2016.
  43. ^ "Nepal to offer shelter to South Asia's battered gays". The Times Of India. 22 June 2011.
  44. ^ Deuba, Keshab; Shrestha, Rachana; Kumar Karki, Deepak; Umesh, Raj (11 April 2012). "Risk of HIV Infection Among Men Having Sex With Men in Kathmandu Valley, Nepal". Research Gate.
  45. ^ 23 October 2009: Nepal to Lure Gay Tourists, The Advocate (accessed 1 November 2009)
  46. ^ "Mitini Nepal".
  47. ^ "Inclusive Forum Nepal".
  48. ^ "Transgender model Anjali Lama on going international".
  49. ^ "A breakthrough in LGBTI movement". Pahichan. 30 December 2016.
  50. ^ "Nepal to observe its first Transgender Visibility Day". Suppressed Narratives. 29 March 2019.
  51. ^ Kapali, Rukshana (4 April 2018). "Missing discourse: Men who are attracted to transgender women". taannepal.wordpress.com.

External links[edit]