LGBT rights in Nepal

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.

LGBT rights in Nepal
StatusLegal since 2007
Gender identityThird gender recognised
MilitaryLGBT people allowed to serve openly
Discrimination protectionsDiscrimination constitutionally prohibited
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

Following the end of the monarchy, homosexuality was legalized 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.[1] The Nepalese Constitution, approved by the Constituent Assembly on 16 September 2015,[2] includes several provisions pertaining to the rights of LGBT people.[3] 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, 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.[4][5] 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.[3]

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.[6]

Terminology

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.[7] Among young Nepalis, the terms "queer" (Q) and "MOGAI" (Marginalized Orientations, Gender Identities, and Intersex) are also used.[8]

Legality of same-sex sexual activity

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.[9] Among others, cross-dressing was also illegal under various laws against public immorality.[10] Such provisions were abolished after the end of the monarchy.

The age of consent in Nepal is 16, regardless of gender and sexual orientation.[11]

Recognition of same-sex relationships
Main article: Recognition of same-sex unions in Nepal

Same-sex marriage is not legal in Nepal.

Sunil Babu Pant and Others v. Nepal Government
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.[12] 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.[13] In April 2007, a coalition of organizations representing LGBTI Nepalis filed a writ petition under Article 107 (2) of the Interim Constitution of Nepal.[10]

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".[12] The petition asked that 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".[12]

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.[14][15] 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".[10] 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".[16]

Response to the ruling

A bill to legalize same-sex marriage was drafted and was supposed to be introduced by 2010.[17] In the drafting of the new Nepalese Constitution, same-sex marriage and protection for sexual minorities were supposed to be established.[4][5] However, negotiations on the new Constitution failed and the Prime Minister dissolved the Constituent Assembly on 28 May 2012 in preparation for new elections.[18] 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,[19] though LGBT activists have accused it of being "lukewarm" in its support. In August 2018, former Prime Minister Baburam Bhattarai urged it to legalise same-sex marriage.[20]

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 partners of the opposite sex. 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.[19][21]

Transgender and intersex rights
See also: Intersex rights in Nepal

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.[22] 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".[22]

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.[22] 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.[23] In 2015, Bhumika Shrestha became the first transgender woman to travel aboard with a passport that identified her as an "other" gender.[23]

Gender recognition

Nepal, similarly to India, Bangladesh and Pakistan, has an 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.[24] 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.[25]

In 2007, the Supreme Court legally established a gender category called "other".[10][22] The Nepali Supreme Court stated that the criteria for identifying one's gender is based on the individual's self-identification.[26]

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.[27] 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.[28] 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.[29]

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.[30] In 2019, LGBT activist Rukshana Kapali took an open stand against labeling herself as "third gender".[31]

Hormone replacement therapy and sex reassignment surgery are technically not available in Nepal,[32] 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.[33] In 2019, there were discussions in Parliament to require applicants to undergo sex changes in order to apply for an "O" sex descriptor.[34]

Military service

In 2007, two female soliders were accused of having a relationship and were discharged,[35] but the army claimed that the women were dismissed for "failing to maintain minimum discipline" not based on sexual orientation. The UNDP reports that gays, lesbians and bisexuals can serve openly in the Nepali Army.[36] Nepal military law does not explicitly forbid LGBT people from serving.[37]

Nevertheless, LGBT groups report that discrimination and harassment still occur.[38]

Provisions of the 2015 Constitution

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".[39][40]

The Constitution went into effect on 20 September 2015.[41]

Living conditions
Pride festival in Nepal in 2013

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 ostracize anyone failing to conform.[27] 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.[42]

However, human rights organizations like the Blue Diamond Society, 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, 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.[27][13][42]

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.[43] It purposefully coincides with the Gai Jatra festival, one of the oldest festivals celebrated in the Kathmandu Valley.

Violence

Gender-based violence against transgender people is a severe issue in Nepal where they often find themselves susceptible to both public and domestic violence, 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.[42] Likewise, results derived from INSEC's monitoring of the situation indicated that subjugating women to domestic violence was considered a deep-rooted traditional practice.[44]

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.[42]

Education

The United Nations Development Programme has recommended that Nepal incorporate these ideals into the education system to ensure inclusive and equitable quality education:[29]

  • 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.[27] 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."[42] Furthermore, transgender Nepalis face severe gender-based violence and are unable to receive a proper education, especially in rural areas.[45]

Politics

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.[29] Pant served from 2008-2012.[27] 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."[44] 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.[46][47]

Health

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).[48]

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.[27]

Tourism
See also: Tourism in Nepal

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.[49]

Notable LGBT organizations, figures and events in Nepal
An LGBT march, organised by Mitini Nepal, in Kathmandu on 14 February 2019

Organizations

Figures
  • Anjali Lama, a transgender model[51]
  • Suman Pant, whose Supreme Court case established a precedent for same-sex spousal visa[52]
  • Sunil Babu Pant, the first openly gay legislator in Nepal
  • Bhumika Shrestha, a "third gender" advocate

Events
Further information: Pride Parades in Nepal

Several LGBT-related events are held in Nepal. These include the main Nepal Pride Parade, also known as the Queer Pride Parade (Nepali: क्वयेर गौरव्यात्रा; Nepal Bhasa: कुएर गौरबयाः; Tamang: ཀྭཡེར་གོོརབལླ་ཀུངླདླིབ), held on 29 June 2019, 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.

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.[53]

Summary table
Same-sex sexual activity legal (Since 2007)
Equal age of consent (Since 2007)
Anti-discrimination laws in employment (Since 2015)
Anti-discrimination laws in the provision of goods and services (Since 2015)
Anti-discrimination laws in all others areas (incl. indirect discrimination, hate speech) (Since 2015)
Same-sex marriages (Proposed)
Recognition of same-sex couples (Proposed)
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
Right to change legal gender
Third gender option (Since 2011)
Access to IVF for lesbian couples
Commercial surrogacy for gay male couples (Banned regardless of sexual orientation)
MSMs allowed to donate blood
gollark: The designs for computers and computer bits are all stored on computers.
gollark: Without computers, transport and global supply chains will fail.
gollark: All the tooling for making computers... uses computers.
gollark: Much, much longer.
gollark: It would also have active cooling fans powerful enough to fly and a battery life of 20 minutes. I say go for it.

See also

References
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