Since Nepal ended a decade-long civil war in 2006, the subsequent post-war political transition incorporated a significant shift on many existing social issues, including LGBTQ+ rights. As soon as the political system diverged from a Hindu monarchy to a secular republic, the LGBTQ+ community gradually became more visible and vocal, demanding fairer gender treatments.
The Supreme Court’s verdict in the “Pant vs Nepal” case in December 2007 had been the most prominently visible legal and policy victory for LGBTQ+ rights in Nepal. The verdict followed an April 2007 petition by Sunil Babu Pant along with non-governmental organizations working on LGBTQ+ rights, including the Blue Diamond Society (BDS), against the government of Nepal. The outcome of this petition was that the Supreme Court called for the abolishment of laws discriminating against LGBTQ+ individuals, the legal recognition of a “third gender” as well as the establishment of a committee to study the possibility of allowing same-sex marriage.
This verdict brought Nepal to international attention for having initiated one of the most progressive legal mechanisms on LGBTQ+ rights in Asia. In line with the Supreme Court’s ruling, human right activists successfully advocated the government to officially recognize the LGBTQ+ individuals identifying as a “third gender,” distinct from the traditional binary gender choice of “male” and “female.” It led to addressing the “third gender” under the category of “O” or “Other” on voter rolls in 2010, the federal census in 2011, citizenship documents in 2013, and passports in 2015. Notably, the republican constitution promulgated in 2015 enshrined equal rights to all citizens irrespective of race, caste, and gender. Article 18 explicitly states that the judiciary will not discriminate against gender and sexual minorities under the application of laws.
These positive developments in Nepal up to 2015 had been hailed as a stepping-stone for the advancement of LGBTQ+ rights within the broader spectrum of the conservative nature of the society particularly widespread in the Indian subcontinent. In light of this, it is no wonder that some international human rights organizations, including Human Rights Watch (HRW), praised Nepal for becoming a global LGBTQ+ rights beacon.
However, the ground reality is darker and more murky, as the LGBTQ+ community in Nepal widely continues to face discrimination from the larger spectrum of society, including state institutions. They are deprived of employment including in the civil service, army, and police as the recruitment criteria do not accept the “O” category as a gender choice. Such discrimination is prevalent in the education sector too. Rukshana Kapali, a transgender woman who had been bullied and abused by the school’s principal during her school years, later had been formally allowed to study at Tribhuwan University, Nepal’s oldest university. Although she can study, she was not formally registered as a student as her high school transcript identifies her as a “male” under her former name. When asked why she cannot register, the university’s exam controller, Pushpa Raj Joshi said, “We are optimistic, but it is not possible to register her under the current regulations.”
Although Nepal has been hailed as a global beacon on LGBTQ+ rights by some prominent human rights organizations, the jubilant early progress rather appears to have stalled. Despite legally being recognized under the “O” category, it is still not straightforward for individuals identifying as non-binary to gain a citizenship card under it. This has largely occurred since the government has failed to amend the clause on “sex-change” in the Citizenship Act. For those who prefer to change to the “O” gender in identity documents, the citizenship amendment bill passed by the parliament in June 2020 requires applicants to provide medical evidence of a sex change rather than deciding it based on the “self-determination” of individuals.
Ever for those LGBTQ+ members willing to go through the arduous sex-change procedure, it is neither straightforward nor easily affordable for many. They must travel abroad as Nepal does not have such medical facilities yet — and the complicated medical procedure is risky, even at times resulting in death. Therefore, many transgender people who are socioeconomically poor are forced to continue to accept a biological gender that does not truly reflect their gender identity.
Opposing the amendment bill of June 2020, the Nepal Civil Society on Citizenship Rights, which is a loose network of civil society organizations working on human rights, stated in their press release that “this provision will increase the burden of proof on the applicant and would undermine their prestige. This provision will be a disadvantage to those, who were born as male or female but feel to be different from their biological gender and do not want to undergo sex-change surgery or are unable to afford such surgery.”
Meanwhile, same-sex marriage is still illegal in Nepal as Nepal’s Civil Code continues to acknowledge marriage as a union between only a man and a woman. LGBTQ+ couples in Nepal cannot legally marry. It exacerbates their deprivation of fundamental rights that other heterosexual married couples naturally can enjoy, such as jointly buying property and adopting children. In 2015, a committee that was formed to study same-sex marriage submitted an 85-page report to the government recommending the legalization of same-sex marriage; however, it was never translated into law.
“This is another crucial fight that we are fighting to change the law in it,” the president of BDS, Pinky Gurung, said in an October 24, 2020 interview.
The LGBTQ+ community has a long battle to fight in order to bring gender equality in Nepal. While the government has not yet implemented most of the laws on gender equality in line with the constitution, it is hard to blindly accept the narrative of Nepal being a global beacon on LGBTQ+ rights. There has certainly been early progress. However, that progress has so far failed to transcend into laws. Theoretical rights granted by the constitution have not been fully translated into practice. After more than half a decade since the constitution was promulgated, Nepal’s LGBTQ+ individuals are still largely deprived of fundamental rights — and some activists have begun to call it a “setback.” Successive governments’ political reluctance to materialize the constitutional rights has certainly left the LGBTQ+ community in limbo.
As Sujan Pant, a rights advocate and assistant professor at Mid-Western University in Nepal says, “Our laws do not abide by the constitution, which strictly says that no one can be discriminated against on the basis of their gender.”
Sanju Gurung is an independent consultant and Nepalese linguist. He is a member of Chatham House and an Associate Member of the National Coalition of Independent Scholars. He is currently researching on Himalayan states’ foreign policy concerning India and China.