Deepesh Shrestha, Jahnvi Upreti, 20 October, 2022, Kathmandu
On June 11, 2022, the streets of Thamel were alight with music, celebration, and laughter, as the Second Annual Pride Parade was held in Kathmandu, Nepal. While speakers, government officials, or corporate sponsors may be a part of other pride marches, this year they were all prohibited in an effort to keep the parade a pure expression of unbridled queer joy; and joyous it was. Music, dancing, and color flooded the street as people relished in the festivities. Sagar Chhetri, a Nepalese photographer, described the march as “exhilarating,” and noted that “…the people who gathered there had a different kind of energy. All of those people were probably [politically active] every other day of the year, but on that one day, they were there to enjoy it, to share their love and affection. There was a special kind of smile on everyone’s face I can’t put into words.”
Photo: Blue Diamond Society
Nepal has been globally regarded as a safe country for the LGBTIQ+ community. It is certainly unique in that the Constitution currently recognizes and protects the LGBTIQ+ community, and there have been a number of judicial holdings and laws that recognize gender beyond male and female. Despite these progressive laws, the situation is still far from equitable and safe for the community. Therefore, Nepalese activists continue to strive for change and focus on shifting the culture at large by simultaneously promoting queer visibility while utilizing different legal recourses to shift the political landscape.
One tactic activists have used is expanding the way in which the queer community is captured linguistically. They have introduced the term “PoMSOGIESC,” which stands for “People of Marginalized Sexual Orientation, Gender Identity and Sex Characteristics,” as an alternative to the more common term, LGBTQIA+. PoMSOGIESC was coined by Nepali activists in order to include an even greater scope of individuals when considering the forms of discrimination people can experience based on their gender identity, sexual orientation, or sexual characteristics.
In 2015, Nepal became only the tenth country in the world to explicitly provide protections for the PoMSOGIESC community within its Constitution. This was a time during Nepal’s post- conflict peace transition, and activists smartly took advantage of this new political canvas to paint a more inclusive legal framework going forward. Article 18 of the Nepalese Constitution guarantees that “all citizens shall be equal before the law and that no person shall be denied the equal protection of the law.” To continue, Article 18 Clause 3 notes that nothing should prevent laws that protect “gender and sexual minorities.” Additionally, Article 12 dictates that citizenship certificates must include “gender identity,” and not simply “gender.” This allows for any Nepalese citizen to access a Citizenship Certificate that denotes their preferred gender identity. Finally, Article 42 guarantees that “sexual and gender minorities… have the right to participate in the State bodies on the basis of inclusive principle.”
While establishing PoMSOGIESC rights in the constitution was an incredible feat, legal victories in the courts preceded this legislative one. Prior to the ratification of PoMSOGIESC protections in the Constitution, Nepal’s government had begun providing some protections for the community through judicial holdings and executive actions. The most notable court case occurred in 2007 with the decision in Pant v. Nepal. The legal issue of the case was to determine whether PoMSOGIESC were entitled to the full range of constitutional and international human rights. A writ petition under Article 107(2) of the Interim Constitution of Nepal was filed by the Blue Diamond Society (BDS), MITINI Nepal, Cruse AIDS Nepal, and Parichaya Nepal. Each of these organizations focused on seeking justice for the PoMSOGIESC community within Nepal. The writ sought three actions: first, the recognition of transgender individuals as a third gender, second, the implementation of a law prohibiting discrimination on the basis of sexual orientation and gender identity, and third, reparations by the State to victims of State violence and discrimination.
The Court utilized the Yogyarta Principles to define sexual orientation and gender identity and recognized the following identities: lesbian, gay, bisexual, transsexual, homosexual, transgender, and intersexuality. The Court concluded that sexual orientation was a natural process rather than the result of “mental perversion” or “emotional and psychological disorder,” as the government’s legal opposition posited. It rejected the notion that people of the third sex were “sexual perverts.” Additionally, the Court recognized that “gender and sexual minorities” did face violence, stigmatization, and discrimination. It based this finding on the Yogyakarta Principles and reports of the Special Procedures of the UN Human Rights Council.
The Court held that the fundamental rights of the Interim Constitution were enforceable rights guaranteed to all citizens of Nepal. These were rights: “vested in the third gender people as human beings. The homosexuals and third gender people are also human beings as other men and women are, and they are the citizens of this country as well.” The Court forbade discrimination on the ground of sexual orientation. Additionally, the Court maintained that PoMSOGIESC have the right to privacy and can therefore choose their partners without discrimination.
Following these holdings, the Court mandated that the government make the following changes to ensure protections for the PoMSOGIESC community: “make the necessary arrangements, including making new laws or amending the existing ones, to ensure that people of different gender identities and sexual orientations could enjoy their rights without discrimination, ensure the new constitution guarantees protections against discrimination towards gender and sexual minorities, and form a committee to study issues related to same-sex marriage.
This groundbreaking case led to progressive legislative changes in Nepal’s government that expanded rights for the PoMSOGIESC community. In 2019, the Election Commission of Nepal added the third gender option to voter rolls, and immigration forms began to do the same. In 2011, Nepal included a third gender option on its federal census, and became the first country in the world to recognize gender outside of “male” and “female” on such a document. In 2015, following the holding within the court case Dilu Dibuja v. the Ministry of Foreign Affairs, the Government of Nepal started issuing passports that recognized a third gender as well. In the 2017 the Supreme Court case, Sunil Babu Pant and Others vs. Government of Nepal, it was determined that transgender people must be able to change not only their gender identity, but their names, on certain government forms. A recent progressive change was the inclusion of the option to identify as “other” when noting gender identity in the 2021 census.
Since the aforementioned legal precedents and political policies were established, PoMSOGIESC and organizations have continued to strive for full social, economic, and political equality, and have had a number of cultural victories as well.
Nepal’s PoMSOGIESC community has employed creative and strategic measures to broaden their visibility to the public and to advance their right to dignity and non- discrimination. One of the strategies was entering political spaces directly by running for office or obtaining government positions. A prominent example is Sunil Babu Pant, who ran for a federal official position in 2008 and won, becoming Asia’s first gay elected official in the federal government. Hundreds of other PoMSOGIESC ran for political office, from local to federal positions. Even if PoMSOGIESC candidates did not win their elections, their campaigns helped increase visibility of queer individuals among the public. A transgender social worker Mahendra Shahi Teli known as Radha Mousi has become one of the first person from PoMSOGIESC community in Nepal to participate in the election of House of Representatives from Sarlahi 2(b) which is to be held on 20th November, 2022.
Mahendra Shah aka Radha Mausi (Photo: setopati.com)
Along with running for political positions, PoMSOGIESC have made themselves visible in Nepal in more direct ways as well. In 2002, Pride Marches were known internationally, and though one could not be formally organized in Nepal at the time, the BDS strategically co-opted the Hindu holiday of Gai Jatra as an informal Pride Parade. The parade took place every year in August, when Gai Jatra is celebrated; in 2019 the theme was “Our Festival, Our Pride”. Without explicitly calling the festival a pride parade for the PoMSOGIESC community, the BDS allowed a designated space and time for the queer community to celebrate safely within the Kathmandu community.
The creatively co-opted Gai Jatra parade paved the path for Nepal’s first ever official Pride Parade, which took place on June 29, 2019. The march was organized by two PoMSOGIESC groups: Queer Youth Group and Queer Rights Collective, two of many PoMSOGIESC organizations within Nepal. Nepal has since designated June 29 as “Pride March Day.” Additionally, a celebration was held on May 17, 2022, on the International Day Against Homophobia, Biphobia, and Transphobia. The event was led by Mitini Nepal and chaired by Vice President of Nepal Nanda Kishor Pun and some national commissioners. Vice President Pun emphasized that Nepal cannot be a proper democracy unless PoMSOGIESC can also “make use of the written laws.” This event marked the first time a high level federal official recognized PoMSOGIESC and their rights in public.
Photo: Blue Diamond Society
Along with parades and marches, new beauty pageants emerged to celebrate the beauty of the PoMSOGIESC. In 2007, Ms. Bhumika Shrestha entered Nepal’s first “Miss Pink” transgender beauty pageant. She viewed the pageant as a way to spotlight her advocacy work for the transgender community. She won the pageant, and shortly after, she became the first transgender person to win and hold a seat in Nepal’s Congress.
Ms. Pinky Gurung, the former president of the BDS and a transwoman, noted that visibility has helped transform the publics’ view of the PoMSOGIESC community overtime. She stated in an interview that: “When we started [BDS] in 2001… if any ‘third-gender’ person came out wearing women’s wear, the police used to arrest us and beat us. But, now, fortunately, we are not beaten by them just for being who we are. Gradually, society is changing its attitudes towards us.”
The way the world sees Nepal is changing as well, as Nepal has been seen as a “safe haven” for PoMSOGIESC abroad, who flee to Nepal to live in a place where they can be free of the violence and persecution, they experienced in their home countries. Ms. Gurung also noted that the BDS has provided support to many PoMSOGIESC refugees who came from abroad, mainly Pakistani and Bangladeshi individuals.
It is evident based on the established constitutional and legal protections that Nepal has been an international leader in PoMSOGIESC rights. However, despite the strong steps towards establishing equality, progress continues at a slow pace and is plagued by bureaucratic inefficiencies, lack of protection and opportunities for the PoMSOGIESC community, and social misunderstandings of the community. An analysis by Prevention Collaborative with support from UN Women Nepal in July 2020 concluded that “[translating] the Supreme Court rulings into a legal framework that guarantees inclusion and protections is slow-paced and hindered mainly by bureaucracy and dominant patriarchal institutional and social culture.”
Although Article 12 of the Constitution of Nepal notes that citizenship certificates must include gender identity, in practice non-binary and transgender individuals still experience difficulty in having their true gender reflected on their citizenship cards. This is largely due to the government’s inaction in amending the Citizenship Act. The Citizenship Amendment Bill was passed by parliament in June 2020 and dictated that in order for an individual to change their gender to “other” on their citizenship card, they must provide medical proof of a sex change rather than simply self- report their identity. While it is important to recognize Nepal’s progress, it is also important to note what hinders that success and prevents further advancement of civil liberties for the PoMSOGIESC community. Kyle Knight, a researcher on the Human Rights Watch’s LGBT rights program, stated that “[while] Nepal is a beacon of progress, the day-to-day experience of changing documents for some transgender people continues to be unpleasant due to the poor behavior of bureaucrats.”
To continue, a huge roadblock that the PoMSOGIESC community has been facing is the fact that same sex marriage has not yet been legalized in Nepal. Following the groundbreaking Pant v. Nepal case in 2007, the Nepalese government reviewed the current laws and identified over one hundred that needed to be changed in order to eliminate discrimination against the PoMSOGIESC community, as mandated by the Court. A committee appointed by the government issued a report in 2015 that recommended legalizing same sex marriage. Despite this recommendation, seven years have passed and Nepal’s Civil Code continues to acknowledge “marriage” as a union only between a man and a woman.
Additionally, many PoMSOGIESC activists express concern that queer people’s inability to get married means they do not receive the legal privileges that come with marriage. For example, it is almost impossible for PoMSOGIESC couples to pass citizenship onto their children. Additionally, queer couples cannot sell and transfer jointly registered property, open bank accounts together, obtain property rights upon the death of a partner, or engage in other benefits reserved solely for married individuals.
Another legal issue that the community has emphasized is that the terms “third gender” and “other” is not adequate to honorably capture a transgender or non-binary person’s gender identity. Nor does the “other” category include intersex people. One of the biggest political challenges noted by PoMSOGIESC activists and leaders is that though Nepal recognizes gender beyond the binary of “male” and “female,” the use of “other” or “third gender” is not an accurate reflection of a non-binary or transgender individual’s identity. This has led to issues with official documents, such as the census and voter registration cards. During Nepal’s elections in May 2020, many non-binaries and trans individuals faced complications when trying to vote, because though their voter registration cards list them as “other,” the lines to vote were divided into male and female. Additionally, some transgender citizens did not vote at all because they could not receive a card that accurately reflects their gender identity or because they are afraid of possible humiliation they can face when they go to vote. Only offering non- binary and transgender individuals the “other” gender identity makes it more difficult for them to participate within their democracy. Additionally, it can be humiliating for individuals whose identities are not appropriately recognized by these institutions.
Ms. Rukshana Kapali, a transwoman and transgender rights activist, faced an uncomfortable situation while voting in Lalitpur in 2017. Her voting card labeled her as “other,” and she was confused and humiliated when trying to vote as the election officials discussed amongst themselves if she should be allowed to vote. Ms. Kapali is part of the Queer Youth Group organization, and with their support she submitted a writ petition to the Supreme Court in June 2021 to change the “third” gender option on her voter registration card. The Supreme Court passed an interim order requesting the Election Commission to provide Ms. Kapali with a voter registration card that identifies her as “female.” A final verdict in this case is yet to be determined.
Along with facing difficulty in voting, it is also difficult for non-binary and transgender individuals to run for elections, because not all political parties accept a candidate who identifies as “other.” Ms. Gurung reported that the BDS is working with the Federal Election Commission to create a safer environment for the PoMSOGIESC community to participate in political spaces, as both voters and candidates.
Another prominent example of a disconnect between the PoMSOGIESC community and the government can be found in the most recent census. The census, which was conducted in the summer of 2021, was initially lauded for including a third option for gender, allowing people to choose “other” to indicate that their gender lies beyond the binary. This is a commendable action on the part of the activists who advocated for this as well as the government officials who supported it. However, there were some technical and social issues that impeded the census’s efficacy in capturing the number of transgender and non-binary individuals in Nepal.
According to the 2011 census, only 1,500 people in Nepal identified as “third gender.” Queer activists spoke out against this data, stating that this grossly underrepresented the transgender and non- binary population in Nepal. There are an estimated 900,000 PoMSOGIESC in Nepal. However, due to the lack of specificity in the gender option of “other,” activists say that the 2011 census did not ultimately help the community. Ms. Kapali also filed a Supreme Court writ in 2020 against the methodology used in the census. She described the census as “problematic” and designed in a way that “cannot capture the real data of the PoMSOGIESC community.” As of January 2022, there has yet to be a court hearing about Ms. Kapali’s court case.
Though the 2021 census included the third gender option of “other,” activists state that some enumerators are not doing their job in accurately assessing the population. Ms. Manisha Dhakal, a transwoman and current president of the BDS, reported that: “enumerators do not ask about the presence of gender and sexual minorities in many locations and simply assumed a binary gender. Even at my home, they did not inquire about us.” The BDS has worked to mitigate such issues by providing enumerators with training and by funding a campaign to encourage queer people to identify as “other” on the census if they identify as so. Despite these initiatives, the doubt in the enumerator’s work as well as peoples’ fear in speaking out about their gender identities has resulted in underreporting in the census. However, activists state that they remain hopeful that new data can help in their advocacy initiatives.
Ms. Dhakal estimated that eight to ten percent of Nepal’s population is queer. Ms. Gurung, the former head of the BDS, emphasized the importance of a census that accurately captures the scope of the PoMSOGIESC community members within Nepal; she stated: “when there is data after the census, we can use it as evidence to lobby for our rights. We can make demands in proportion to our size of the population.”
Along with continuous legal and political challenges, PoMSOGIESC are also facing social issues. One of the biggest challenges against continued progress for the PoMSOGIESC community in Nepal are people’s social disposition towards the community. In an interview with Ms. Gurung, in December 2021, when asked why she believes transgender individuals are at a disproportionate risk of violence, she stated: “this society has still not understood us and our issues, we have to bear a lot of violence, starting from home itself… we lie in the group of sexual and gender minorities. People have still not understood that we are completely natural. They still consider us wrong, unnatural, even mad just because we are different from them and what the social norms say.”
Though tremendous progress has been made to protect the PoMSOGIESC community, they continue to face barriers to education, job opportunities, property rights, and more. Additionally, though Nepal has become generally safer for the queer community and instances of police violence have lessened, the community still continues to face harassment, attacks, and even murders.
Members of the PoMSOGIESC community have expressed doubt in the government’s commitment to protecting and expanding their rights. Mr. Sunil Babu Pant explained that many politicians and leaders do not understand the community, stating: “They are counting third genders, but they won’t know anything about third genders… [for] the rest of the population, they’ll know caste and income and dozens of other things. For third genders, they will have numbers by district, but that does not mean anything when it comes to government attention.” Additionally, Ms. Gurung reported that some senior leaders of Nepal have used “hijada” as a swear word and insult, “they are not at all sensitive towards our community and our rights,” she stated.
As a result of discrimination from government officials, institutions, family members, and the public at large, it continues to be difficult for individuals to come out as members of the queer community. Ms. Dhakal reports that queer individuals who identified as “other” in the census were typically individuals who do not live with their families and who live in more urban areas.
The PoMSOGIESC community, particularly non-binary and transgender individuals, are especially vulnerable to economic strife. Since certain institutions do not accept the third gender identity of “other” in job applications, queer people are often denied jobs in fields such as the civil service, army, and police. Additionally, queer people have increased difficulty in school due to bullying, which can start from a young age, and can continue to affect them later in life. Additionally, queer children and teenagers are at greater risk of dropping out of school than cisgender and heterosexual children. When a transgender or non-binary person seeks to change their gender while entering college, they face challenges because their transcripts identify them as their sex from birth rather than their gender. Therefore, despite the progress in allowing people to identify as a third gender, some queer individuals subsequently face economic consequences for identifying beyond the binary.
As mentioned previously, the new requirement that non-binary and transgender individuals should present medical confirmation of their identity, rather than simply self- identifying, has made it difficult for queer people to access accurate citizenship certificates. Citizenship certificates are necessary to buy a home, land, or vehicle, or for applying for a passport, a bank account, and more. Asking for a medical doctor’s corroboration places a burden on the transgender or non-binary person to find a doctor who is willing to recognize their identity, pay for that visit, and then submit the citizenship card in hopes for approval. In the meantime, their economic agency is limited.
To continue, it is common for Nepali individuals to leave Nepal and to find work and live in other countries while sending money back home to loved ones. Money sent back to Nepal from work abroad accounts for nearly 30% of Nepal’s GDP. Many Nepalese immigrate to Gulf countries, and in order to work abroad, a passport is required. Queer Nepalese, who have listed their gender as “other,” are afraid of how their gender identity will be received by police, employers, and the public, in the more conservative countries they consider moving to for work. In order for transgender individuals to have their self- identified gender listed on their passport, they must undergo a sex change, which is a big emotional, financial, and physical burden. These circumstances place queer Nepalese in a position where they must choose between living openly as their true gender and risking few to no job’s opportunities, or stifling their identities in order to survive.
As a result of the employment discrimination from different job sectors, queer individuals find themselves turning towards informal and low paying economy jobs, such as sex work, as a means to survive. Some queer people feel that a double standard exists in the rhetoric the government typically uses to describe sex work. Mr. Badri Pun, a transgender man and president of Inclusive Forum Nepal, stated that: “when we take up jobs like sex work to earn a living, it is the same government that blames us for bringing bad things to the society.” Additionally, sex work is still illegal in Nepal, though it is an important job for the PoMSOGIESC community. This makes it more difficult for PoMSOGIESC to promote and maintain their livelihoods. To continue, there are no rape laws that specifically protect transgender and non- binary people, which places them at risk for abuse and also offers little protection.
Finally, PoMSOGIESC individuals in Nepal also face medical and health-based challenges. During the Covid-19 pandemic, queer individuals faced greater challenges in accessing medical and psychological care as well as PoMSOGIESC friendly quarantine center. Sarita KC of Mitini Nepal stated that “every crisis makes the PoMSOGIESC community vulnerable because policy responses do not take their needs into account.” Additionally, Laxmi Ghalan, a founding member of Mitini Nepal, stated that her organization has recorded reports of elevated risks of family and domestic violence, increased social isolation and anxiety, and difficulties in accessing necessary sexual and reproductive health rights by the queer community in Nepal.
Peter Rai, a transgender woman from the BDS reported that since the onset of the Covid-19 pandemic, it has been harder for the community to access health services and they did not often receive covid- related information. Peter noted that mental health issues for the community were exacerbated, as they were forced to stay inside and were cut off from other members of their community and were often stuck in home with family who did not know or accept their identities. Peter also noted that advocacy became harder since everything was online, which forced activists and PoMSOGIESC to have limited means of promoting their advocacy work in a time where the community was more vulnerable than ever. Additionally, the PoMSOGIESC community has limited access to reproductive and sexual healthcare. Peter noted that access to such services does not really exist, as doctors do not have adequate cultural or medical knowledge about PoMSOGIESC identities and the specific needs of the community.
Following an analysis of the PoMSOGIESC’s triumphs and tribulations, a number of recommendations have been identified for the society and Government of Nepal. Firstly, it is high time that Nepal specifically legalizes queer and same- sex marriage. Long before Nepal outlined specific protections for the PoMSOGIESC, the 1948 Universal Declaration of Human Rights (UDHR) proclaimed that “all are equal before the law and entitled without any discrimination to equal protection of the law.” It also noted that “men and women of full age, without any limitation to race, nationality, or religion, have the right to marry and found a family… the family is the natural and fundamental group unit of society and entitled to protection by society and the State.” Nepal has ratified the UDHR, yet the PoMSOGIESC within the nation still do not have the right to marry and form a family in the way they choose, which goes against both aforementioned articles of the Declaration. Nepal should review its Civil Code to reflect its continuously progressive laws and culture by legalizing queer marriage, unlimited by gender or sexuality.
Along the same note, there is a need for Nepal’s government to be critical when examining the degree to which the country has followed along with the items it has ratified, such as the UDHR. The International Covenant on Civil and Political Rights (ICCPR), another document that Nepal has ratified, states that: “[each] State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” While Nepal has put forth some legislation that falls within the line of the ICCPR and the UDHR, the country still has a long way to go until it completely aligns with such protections. It is not enough to simply vocalize approval for the progressive international and universal bodies, but the governments should also ratify such measures and follow the obligations with tangible change. It is necessary that Nepal work towards meeting the international standards that it claims to support.
These international declarations and statements could be useful in shifting Nepal’s legislative landscape. For example, in Toonen v. Australia (1991), the United Nations Human Rights Committee recognized that sexuality is an identity protected by the ICCPR and subsequently determined that Australia’s sodomoy laws must be repealed. Countries can benefit from looking towards one another for guidance when it comes to advancing the rights of society’s most marginalized.
Additionally, the Government of Nepal should remove the “third gender” option and instead include options that allow the PoMSOGIESC to specify their gender. It is important that transgender and non-binary individuals have the opportunity to identify in a way that allows them emotional validation as well as financial opportunity. To continue, Nepal’s government must reverse its recent legislation mandating a doctor’s note to validate one’s gender identity. This law makes it harder for gender non- conforming people to access legal and economic institutions, and it places them in an undignified position.
Along with updating current laws and creating new ones, Nepalese legislators should be mindful of language when drafting new laws. Nepalese laws, like those of many other countries, have largely been written through a heteronormative lens. This has led to the active exclusion of PoMSOGIESC, even if that was never the original intention. It is necessary that Nepal utilize language that makes laws more accessible and inclusive; for example, noting “person” instead of “man” or “woman,” and “life partner,” or “spouse” instead of “husband” or “wife.”
Finally, the PoMSOGIESC should be included in the vocational quota. Since queer and gender non- conforming individuals in Nepal have been at an economic disadvantage, it is important that the government not only work towards making it easier for the community to access jobs, but also actively prioritizing their hiring. The PoMSOGIESC deserve to be recognized as a historically marginalized group and to be provided opportunities for elevation such as those provided for women and caste- discriminated peoples.
It is clear that despite the challenges the PoMSOGIESC community continues to face, activists and allies within Nepal are committed to seeing the necessary changes come to fruition, no matter how long it takes. The creative and determined ways in which activists continue to lobby for progress is inspiring, and as much as Nepal can learn from other activists around the world, the country is a source of knowledge and hope for PoMSOGIESC around the world seeking justice and equality in every sector of life.
Authors:
Deepesh Shrestha is an advocate and working as a Project Coordinator at Forum for Women, Law and Development (FWLD).
Jahnvi Upreti is a paralegal working in the field of health equity and benefits accessibility.