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FRIDAY FILE: Almost four years after Nepal’s Supreme Court recognized the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, the South Asian country may get a new constitution that secures their rights.[i]
By Kathambi Kinoti
The first public wedding between two women in Nepal took place in June 2011 in a town a few kilometres south of the capital Kathmandu. Nepal was constitutionally a Hindu state until 2006 when Parliament amended the constitution to make it secular. The majority of Nepalese are Hindu and the second most prominent religion is Buddhism.
While same-sex marriage is not yet legal in Nepal, the wedding heralded some major changes to the country’s laws that could come to fruition in the upcoming months. Nepal’s judiciary paved the way for the protection of the rights of LGBTI persons, and its legislature seems set to follow suit.
Widespread Discrimination
Sunil Pant is Nepal’s first openly gay Member of Parliament and the founder of the Blue Diamond Society, a LGBTI rights advocacy organization. When he first applied to register the organization with the government, an official told him “that he couldn't register unless his goal was to turn gay people straight.” LGBTI individuals in the country face violence and extortion by the police as well as dismissal from their jobs or difficulties finding housing because of their sexual orientation. There were reported incidents of Maoist insurgents harassing people they thought were LGBTI individuals. However, the Maoists and other political parties later changed track and voiced their support for the recognition of LGBTI rights, apparently recognizing the growing political clout of LGBTI groups.
Judicial Imprint
In December 2007, Nepal’s Supreme Court delivered an unprecedented ruling when it declared that LGBTI people are natural people and deserve equal rights and opportunities. It directed the government of Nepal to issue citizenship identification documents to persons identifying with a third gender according to their gender identity, repeal or amend laws that discriminate against LGBTI people and form a seven member committee to draft a same sex marriage law for approval by parliament.
The landmark ruling came out of a case filed by the Blue Diamond Society and three other organizations. Manisha Dhakal, a transgender activist, says that the case was motivated by a determination to address the systemic violence and discrimination against LGBTI people in Nepal. Prior to the ruling, Nepal’s laws did not explicitly criminalize same-sex relations, but did penalize “unnatural sex acts.” Dhakal says that Pant worked with local, national and international communities and activists to compile the necessary evidence for the case.
Third Gender
Nepali society is generally conservative and this ruling by the Supreme Court was by any standards a groundbreaking decision. However, according to Dhakal the concept of a third gender – neither male nor female – is nothing new. “The third gender is very much a part of the culture of south Asia,” she says. “The Hindu religion is very inclusive and accepting of the third gender and homosexuality.” She adds that Nepal is transitioning socially and politically, so this is a period in history in which LGBTI rights are more likely to be accepted. Over and above this, says Dhakal, the arguments that the Blue Diamond Society proffered in the case were solid: No human being should be subjected to discrimination, torture or other forms of violence.
One of the early tests of the Supreme Court ruling was the May 2011 census when, for the first time, people identifying themselves with a third gender were free to state this for official record. Dhakal says that initially, the authorities were not willing to include a third gender in the particulars gathered during the census, but Pant threatened to take them to court if they did not. LGBTI activists mobilized to ensure that LGBTI individuals took part in the census and closely monitored how it was conducted.
The May 2011 census was a significant moment for LGBTI rights activism in Nepal. According to Dhakal: “It represented a huge recognition by the government that [a] third gender is part of the core of Nepal’s population.” Still, a lot more work needs to be done to change attitudes in the society. Dhakal asserts that the data gathering process was flawed due to, among other things, the attitudes and lack of understanding of third gender issues among most of the 40,000 census officials. Nevertheless, an inroad has been charted into integrating LGBTI individuals fully into Nepali society. Dhakal says that Nepal’s Central Bureau of Statistics has pledged to carry out a comprehensive study of the situation of LGBTI people in 2012.
Constitutional Reform
Nepal is currently undergoing a constitutional reform process as the country transitions from a monarchy to a full democracy. The promulgation of a new constitution was part of a 2006 peace deal to end a ten-year Maoist insurgency. In May 2008 a constituent assembly was instituted with a mandate to draft a new constitution within two years. In May 2010, its mandate was extended by one year as the various political parties failed to reach a deal, and since May this year, for the same reason the deadline for a new constitution has been extended twice for three-month-periods. The current deadline is November 2011.
The draft constitution proposes “citizenship rights for third gender individuals… bans discrimination based on sexual orientation and gender identity; calls for government affirmative action in support of LGBT people; and proposes gender-neutral language on the rights to work, health, education, and marriage.” Dhakal says that this is critical to ensure that no one is excluded particularly where the government pledges to uphold the equal rights of all; if the government pledges to provide free education equally to girls and boys, by implication anyone else is excluded. The male-female binary in marriage laws will also be transformed in the constitution. “Previously our laws indicated that marriage was only permitted between a male and a female,” says Dhakal. “Now other forms of marriage are permitted.”
Pant sits on the constituent assembly’s fundamental rights committee, which drafted the chapter on fundamental rights in the proposed constitution. Dhakal is confident that this section of the document will go through since no one has opposed it so far; LGBTI rights are not in contention. Advocate.com quotes Pant as saying “The LGBT issues are pretty well formulated in the draft, and there is no opposition, so we don’t need to worry about that... Our concern is about how long it will take to have the constitution.”
He attributes the relative ease with which these progressive provisions were introduced into the draft constitution to “a receptive private sector, lack of sensational media, and the Hindu religious tradition, which has deities that challenge binary gender norms.”
Dhakal says that the LGBTI rights movement’s engagement with the judicial and constitutional reform processes in Nepal has proven that nothing is impossible. She adds that going forward, it will be important that the LGBTI movement works as one towards greater visibility for LGBTI individuals as well as for their rights to education, work, training and inclusion in all aspects of Nepali life to which they previously had no access.
[i] Women’s rights advocates have protested against their exclusion from the constitution-making process and demanded to see the draft constitution. They want to see provisions for 50% representation in parliament and women’s citizenship and property ownership rights entrenched in the new constitution. (http://www.irinnews.org/report.aspx?reportID=93442). They have gone on a hunger strike to protest the delay in the deal for the new constitution (http://www.ndtv.com/article/world/nepal-echoes-anna-hazares-protest-127709)