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Shishir Bhatta

May 8th, 2023

LGBTQ+ Movement in Nepal: Where Are We Now?

0 comments | 16 shares

Estimated reading time: 10 minutes

Shishir Bhatta

May 8th, 2023

LGBTQ+ Movement in Nepal: Where Are We Now?

0 comments | 16 shares

Estimated reading time: 10 minutes

Nepal has long been heralded as the beacon of inclusive and egalitarian laws and judgements, especially with regards to gender and sexual minorities, and the rights of its LGBTQ+ community. But as Shishir Bhatta takes stock here, despite several path-breaking legal provisions and interventions, long-standing societal prejudices alongside political and bureaucratic unwillingness mean that the reality on the ground is starkly different, and there is still a long way to go before Nepal becomes a truly inclusive and egalitarian society for all its peoples.

 

In 2006, the Comprehensive Peace Agreement between Maoist insurgents and the government laid the foundation to end a decade-long civil war in Nepal. This important political transition from violence to peace and democracy also spawned a ‘paradigm shift’ on myriad contemporary social agendas, including Lesbian Gay Bisexual Transgender Queer (LGBTQ+) rights; these hitherto sexually marginalised communities were now armed with a wider political, legal and social space to articulate their grievances.

A recent and explicit instance in this commuted social ecosystem of Nepal is the Supreme Court’s order (in March 2023) to legalise the same-sex marriage. This order  has become the most vocal and distinguished legal and policy victory for LGBTQ+ activists in the nation. Campaigners inside and outside the country argued that the legal definition of marriage was responsible for the its denial to gender and sexual minorities because Nepal’s Civil Code defines marriage as a legal bond between male and female to remain as husband and wife. This definition of marriage is mute with regard to same-sex relationship which alienates the LGBTQ+ community to enjoy legitimate privileges. In passing the order, the Joint Bench of Justices also urged the government to initiate legislation to redefine ‘marriage’ in a more gender-inclusive manner.

This Constitutional breakthrough for the rights of gender minorities in Nepal was established by seminal ‘Pant vs Nepal Government’ case in December 2007, which was, in turn,  preceded by a petition campaign by four LGBTQ+ NGOs appealing to the Supreme Court to abolish discriminatory legislation based on sexual orientation and gender identity. Consequently, the then Bench of Justices issued a path-breaking judgement to end laws prejudicing LGBTQ+ communities, including identifying the ‘third gender’ as a legal category, and establish a committee to examine and report on the proposal to legalise same-sex marriage.

This 2007 judgement fuelled the expansion and organisation of this minority community, eventually strengthening them and encouraging them to enter electoral politics as well. Realising their amplified clout, the Communist Party of Nepal-United (CPN-U) elected Sunil Babu Pant as a proportional representative, identifying him as the first openly-gay federal level elected official in Asia.

Commensurate with the Supreme Court’s ruling, government bodies officially recognised sexual minorities as ‘third gender’ or ‘others’ in multiple national events, contrary to the earlier binary gender categories of ‘male’ and ‘female’. These occasions included, but were not limited to, voter rolls in 2010, National Census in 2011, Citizenship Certificate in 2013 and national passports in 2015. Further, the newly promulgated Constitution of 2015 embraced several articles like Articles 12, 18 and 42 to include rights of LGBTQ+ peoples.

These noteworthy footsteps were aimed at creating a fair and equitable society which respects and fosters the human rights of marginalised peoples. Nepal has been extolled by multiple international human rights organisations, including Human Rights Watch, as a balefire for global LGBTQ+ rights.

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However, the situation at ground level and at first-hand is tragic. Despite remarkable legal amelioration, constant human rights infringements based on sexual orientation and gender identity jeopardise Nepal’s evolution towards building a just and even-handed society. The implementation of the Supreme Court’s mandate of March 2023 still seems to be up in the air because the government has turned a blind eye to a similar recommendation made by a lawfully established Committee to legalise  same-sex marriage in 2015 which never translated into law.

Amongst the multiple challenges, access to healthcare is a crucial issue for the LGBTQ+ community, as many healthcare providers often lack a proper understanding of the vulnerability of gender identity and sexual orientation issues as well as their idiosyncratic healthcare needs. To add to this plight, LGBTQ+ individuals encounter bigotry in health institutions based on the delusion that they are sex workers and/or HIV-positive, even as Nepal’s Constitution entitles every citizen to dispassionate health care service regardless of their medical status. Several incidences are on record where transgender individuals are denied access to transportation by privately-owned mass transportation carriers. This compromises their ability to seek medical advice, treatment, counselling and urgent care, which constitutes the backbone of their right to health.

Many LGBTQ+ individuals are harassed, mistreated and discriminated in their workplace by both state actors and private citizens. Also, the dyed-in-the-wool preconception against this community in a considerable fraction of Nepalese society impels them to constantly endure bias and bullying from their peers, neighbours, employers and educators. Transgender people are especially susceptible to sexual abuse; however, they are powerless in seeking legal redress for the violence they experience since the Criminal Code of Nepal (2015) describes rape as a forceful act committed by a man to woman, and is silent about non-binary individuals. Further, even though the Nepal Military Law does not explicitly preclude sexual minorities from serving, frequent incidences of intimidation, detainment and termination of service are reported within Nepalese security forces.

Non-binary individuals still struggle to obtain Citizenship Certificates acknowledging their gender identity despite the legal recognition of the ‘Others’ category because state institutions insist on the medical evidence of sex change as the ‘gold standard marker’ for a gender identity switch. This increases the burden of proof on the claimant and undermines their right of self-determination.

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Undoubtedly, though being hailed as one of the most progressive Asian countries for rights of gender minorities, recurrent political infighting and a sclerotic bureaucracy has left Nepal’s move towards a more egalitarian and inclusive society in limbo. The LGBTQ+ community of Nepal has miles to go before a fair-minded society with equitable rights and privileges for gender and sexual minorities becomes a lived reality. As Pinky Gurung, a queer activist says: ‘Until the government acknowledges that all are equal in the eyes of law, and ensures equal legal rights and protection to us, our community will be severely affected, as well as the nation.’

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The views expressed here are those of the author and do not represent the views of the ‘South Asia @ LSE’ blog, the LSE South Asia Centre or the London School of Economics and Political Science. 

This blogpost may not be reposted by anyone without prior written consent of LSE South Asia Centre; please e-mail southasia@lse.ac.uk for permission.

Banner image © Drew Beamer, 2019, Unsplash.

 

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About the author

Shishir Bhatta

Dr Shishir Bhatta is a registered dental surgeon and a social activist in Nepal. He is currently pursuing a Masters in Social Work at Western Sydney University, Australia.

Posted In: Nepal

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