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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 progressive countries in not only South Asia, but also globally for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) rights as the country has recognized LGBTI rights as being fundamental in its new constitution. Nepal's current LGBTI laws are some of the most open in the world and expand upon a multitude of rights for LGBTI identified Nepalese.[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] Although the constitution does explicitly include 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, it appears to not address the legalization of same-sex marriage explicitly.[4]

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.[7] Among others, cross-dressing was also illegal under various laws against public immorality.[8] The previous Kingdom of Nepal deemed Hinduism to be its official religion, however, the new government remains secular.[1][9] The 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] 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 advancing LGBTI rights to pass through its judicial branch.[10]

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.[11] 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.[12] 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.[8]

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".[11] 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.[11]"

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.[13][14] 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".[8] Furthermore, the court legally established a gender category called "third gender".[8][15] "Third gender" in Nepal was described as biological males who identify with feminine gender identity or for biological females who identify with masculine attributes.[15] However, the term "third gender" is defined contextually by the customs and culture of each country. The Nepali Supreme Court stated that the criteria for identifying as "third gender" was based upon the individual's self identification.[7]

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[8]" 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."[11]

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 metis as well as the religious traditions revering non gender conforming characters.[10][15] In a global perspective, 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.[16] However, in other neighboring countries such as Hong Kong SAR, Malaysia and Pakistan there have trend of progressive judicial decisions on the rights of LGBTI people.[17]

Implementation of Third Gender/Transgender Rights

Although the court dictated that the category "other" or anya, representing "third gender" be added to all official documents and Nepalis identifying as such be given a citizenship documents to reflect their new status, implementation of these protocols still lags far behind.[15] However, the government has started issuing citizenship with an 'other' option to transgender people on a rolling basis. Having official documentation that reflects the persons self-identification and gender presentation 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 receiving the second. Other legal accomplishments include allowing citizens to register to vote as "third gender".[15]

One of the most important milestones in progressive LGBTI 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.[15] 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 amount of "third gender" identifying Nepalis. The census also provides 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.[18] In 2015, Bhumika Shrestha became the first transgender woman to travel aboard with a passport that identified her as a "other" gender.[18]

Provisions of 2015 Constitution

In September 2015, several articles mentioning LGBTI rights 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.’[19] However, the explicit terms "homosexual" or "same sex" are not mentioned in the new constitution.[1]

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

Recognition of Same-Sex relationships

See also: Same-sex marriage in Nepal

Although the previous Nepalese government never explicitly criminalized homosexuality, the Supreme Court, in Sunil Babu Pant v. Nepal stated that LGBTI identified Nepalis did face "violence, stigmatization, and discrimination" from the State as well as within Nepalese society.[7] 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 "decriminalizing and de-stigmatizing same-sex marriage".[21]

A bill to legalize same-sex marriage was being drafted and was supposed to be introduced by 2010.[22] 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 preparation for new elections.[23][24] As a result, the future of explicitly addressing the legality of same-sex marriage is uncertain.

However, in 2012 Nepal's Supreme Court recognized a live-in relationship between a lesbian couple in Rajani Shahi v. National Women’s Commission. The Court allowed Rajani Shahi to live with her partner Prem Kumari Nepali as she wished, rather than with her husband.[10] The verdict stated:

"Individuals can decide as to choosing their ways of living either separately or in partnership together with homosexuals or heterosexuals – with or without solemnizing marriage. Although in the prevailing laws and tradition “marriage” denotes legal bond between heterosexuals (male and female), the legal provisions on the homosexual relations are either inadequate or mute [sic] by now."[10]

Cultural Attitude

Society

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 ostracizes anyone failing to conform.[10] These norms may stigmatize any LGBTI identified Nepalis who choose to operate outside of the gender roles, but affect LGBTI women in Nepal the most as women, more than men, are expected to conform to societal expectations of marriage to the opposite sex.[25]

However, human rights organizations like the 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 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, Saino Nepal, Sahara Samaj, Ekata Nepal, Naulo Srijana Nepal and Paribartan Nepal also exist to provide resources for LGBTI Nepalis. The media and public have also become more sympathetic to LGBTI rights since atrocities against the members of the Blue Diamond Society became public and started the radio program Pahichan, a program that discusses sexual and gender minority rights.[10][12] Individual autonomy may also allow for Nepali societal norms to match the progressive legislation of the country.[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.[26] Violence also stems from law enforcement such as the police force, as many LGBTI individuals report severe beatings, body searches and undue detainment.[25]

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.[25]

Education

Currently, the United Nations Development Programme recommends that Nepal incorporate these ideals into the education system to ensure inclusive and equitable quality education:[17]

  • 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 sexual and gender diversity in Grades 6-9 syllabus, making Nepal the second country, after Mongolia to implement this.[10] However, LGBTI identified children also face extreme discrimination and are unable to complete their education due to “threats, bullying and neglect from fellow students and teacher alike."[25]

Furthermore, transgender or third gender Nepalis face extreme gender-based violence and are unable to receive proper education, especially in rural areas.[27] In 2014, Blue Diamond Society asked for implementation of these rules in educational sector that might bring friendliness to third gender identified Nepalis. However, a full implemenation of these reccomendations seems uncertain.

Politics

There has been an increased level of participation in the political arena by openly LGBTI identifying politicians such as Sunil Babu Pant, the first openly gay parliamentarian in Asia.[17] Pant served from 2008-2012.[10] Pant was also one of the 27 experts at the meeting consolidating the Yogyakarta Principles, allowing for a greater representation of Nepali LGBTI in the international arena.

However, 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."[26] Since 2008 with the end of the civil war and beginning of multi-party democracy, the Maoist Party has come out as supporters of LGBTI rights.[28][29][30]

Sign welcoming visitors into Nepal

Health

The HIV Epidemic affects LGBTI Nepalis across the board, with Men who have sex with Men (MSM) being more than one-fifth of the population affected (21.6 Percent of all cases). 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 LGBTI Nepalis.[10]

Tourism

The Nepal Tourism Board has made plans to promote Nepal as a LGBTI 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 (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 (Pending)
Recognition of same-sex couples No (Pending)
Step-child adoption by same-sex couples No (Under consideration)
Joint adoption by same-sex couples No (Under consideration)
LGBTI identified Nepalis allowed to serve openly in the military Yes (Since 2007)
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 "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.
  8. ^ a b c d e Sunil Babu Pant and Others v. Nepal Government. Supreme Court of Nepal. Apr. 2007. Print.[2]
  9. ^ "International Religious Freedom Report for 2014, Nepal". www.state.gov. Retrieved 5 May 2016.
  10. ^ a b c d e f g h i UNDP, USAID (2014). Being LGBT in Asia: Nepal Country Report. Bangkok
  11. ^ 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.
  12. ^ a b Gay activist in Nepal campaigns against discrimination, by Henry Chu, The Christian Science Monitor, 30 June 3008
  13. ^ 365gay.com, "Nepal High Court Issues Landmark Gay Ruling," 21 December 2007 Archived 22 December 2007 at the Wayback Machine
  14. ^ Nepal court rules on gay rights BBC News, 21 December 2007
  15. ^ a b c d e f Knight, Michael Bochenek, Kyle. “Establishing a Third Gender Category in Nepal: Process and Prognosis.” Emory University School of Law. 01 Mar. 2016.
  16. ^ Stewart, Colin (17 February 2014). "13 arrests in crackdown as India revives anti-gay law". 76 CRIMES. Retrieved 5 May 2016.
  17. ^ 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.
  18. ^ a b "Bhumika Becomes First Transgender to Travel Abroad with 'other' Category Passport." The Kathmandu Post. 06 Oct. 2015. Web. 05 Mar. 2016.[3]
  19. ^ "Nepal lawmakers approve first LGBTI protections in new constitution". pahichan.com. 15 September 2015. Retrieved 13 October 2016.
  20. ^ "Nepal approves new constitution". 17 September 2015. Retrieved 13 October 2016 – via www.bbc.com.
  21. ^ Court Decision, Blue Diamond Society Archived 15 September 2009 at the Wayback Machine
  22. ^ Prince's marriage stokes gay issue, India Today (accessed 1 November 2009)
  23. ^ http://www.nepalnews.com/home/index.php/news/2/19090-ca-dissolved-after-epic-failure.html
  24. ^ "Nepal enters crisis mode as constitution talks fail". BBC News. 28 May 2012.
  25. ^ 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.
  26. ^ a b Human Rights Watch: "Nepal: Maoists Should End Anti-Gay Violence", 16 April 2007
  27. ^ "तेश्रोलिंगी भएकै कारण शिक्षा लिने अवसरबाट बञ्चित हुन नदिने". ujyaaloonline.com. Retrieved 13 October 2016.
  28. ^ http://newshopper.sulekha.com/nepal-maoists-to-stand-up-for-gay-rights-in-un_news_1007743.htm
  29. ^ Anonymous (21 May 2009). "Nepal: Lesbian Visibility Increases After the Government Recognizes LGBT Rights". iglhrc.org. Retrieved 13 October 2016.
  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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