I am a practicing lawyer in Nepal. I have always been fascinated by the change in Social Dynamics. As for a Lawyer, it is rocklike to access the factual news source on the internet as there are various misleading sources online. To which my core duty is to provide legal aid to my Countrymen. As it is the month of June, a month full of pride, the number of coming out stories in queer youth culture is increasing as people of Nepal are accepting others for who they are and who they want to be. This blog mainly concerns the significant cases which people from the community and outside the community should be aware of, as it is a part of our historical reforms. Further, I as a lawyer am trying to advocate the rights that are available by the Government of Nepal along with certain loopholes which can be found within the laws. Furthermore, there can also be an instance where a person who has recently come out of the closet isn't accepted by the family nor by society. So, this blog tells or directs you in certain ways or gives the basic idea as to what can be done in case of such wrongdoing.
Before getting into the crux of this blog, we need to know the "History and Significance of Pride Month". Overviewing International Historical Reforms, During and before 1969, as the American Constitution had banned laws regarding homosexuality, the Police then used to raid queer bars and harass the queer community. In the place called Stonewall, NY city, police raided one of the most popular gay bars on June 28, 1969. On that particular day, the queer community fought back for their rights and protested for several days. Likewise, the rally held next year to commemorate the first anniversary of the riots started the normalization of Pride Month.
History of Rainbow flag and meaning behind : In 1978, an artist named Gilbert Baker (gay men and a drag queen) designed the first rainbow flag. The idea behind Bakers picking rainbow color as a flag is as Baker saw the rainbow as a natural flag from the sky, he adopted all eight colors for the stripes, each color with its own meaning i.e, Hot pink for sex, Red for life, orange for healing, yellow for sunlight, green for nature, turquoise for art, indigo for harmony and violet for spirit. Later, after the first parade, the color turquoise and Hot pink were removed and indigo was replaced by blue which then resulted in six striped flags. However, it wasn't until 1994 that the rainbow flag was truly established as a symbol for LGBTQ pride.
To begin with, even though the GON has guaranteed rights to the LGBTQ group under Constitution and different acts in Nepal, the provision mentioned in the articles are yet to be reflected in society as the person who is behind the closet is mostly in the fear of unacceptance by their family and the other reason is the lack of cognizance from their parents who believe in the societal customs more than their children's choice in way of life.
However, on a positive note, Nepal is the first country in South Asia that recognizes Transgender Identities. Though the struggle started way before the precedential date. On 21st Dec 2007, Sunil Babu Pant the founder of Blue-Diamond Society advocated for the basic rights and privileges to the community in Pant v. GON case. It was one of the first few cases to give legal validation to the LGBTQ groups. However, various verdicts regarding LGBTQ rights were guaranteed by the Supreme Court of Nepal.
In the case of Pant v. GON, On April 2007, Sunil Babu Pant filed for a petition in the Supreme Court of Nepal to issue a directive order to the Government to end all kinds of violence and discrimination against sexual and gender minorities. On 21st Dec 2007, the Supreme Court of Nepal held that all Sexual and Gender Minorities as ‘natural’ and deserve equal rights and opportunities. Further, three groundbreaking directives were issued by the same bench :
a. To recognize the third gender category on equal standing with male and female I.e, to give an identity to the third gender similar to that given to male and female.
b. To amend or to repeal any such provision which is violative of the provisions that discriminate against gender and sexual minorities in Nepal
c. To form a seven-member committee to draft a same-sex marriage law in Nepal.
This specific case law is one of the impactful moves of Judicial Activism in Nepal. As it can be said that this case made a major impact on the history of LGBTQ rights.
Through this blog, I've tried my best to give recognition to the people without whom the community would not have sufficient rights as they have now. Similarly, Rajini Shahi had a major impact on guaranteeing the rights and privileges of the community group in Nepal.
In Rajini Shahi v. National Women Commission(2013), a landmark verdict was setout by a bench comprising of Justice Kalyan Shrestha & Justice Girish Chandra Lal.
In this case, Rajini Shahi later after marrying her husband came out as a lesbian. She filed for divorce against her husband and wanted to start her life with her lesbian partner (named Ms. Nepali), to which her husband then abducted her and forced her to live separately with him. Rajini then approached the NWC to seek protection. She was then sent to a shelter home, Maithi Nepal. However, during her stay, she was not allowed to visit Ms. Nepali (her lesbian partner). In short, Rajini shahi was illegally detained by Maithi Nepal. Then after Ms. Nepali filed for a petition on behalf of Rajini which was also against NMC, Maithi Ghar, and Rajini’s Husband where she prayed for the release of her partner Ms. Shahi.
While looking into the matter, the court looked into the facts and came to a conclusion that even if she volunteered her stay at Maithi Ghar, it denied her of her rights to live as she wished. Thus, the court ordered her release from Maithi Nepal. The court in the year 2013 started acting and advocating on behalf of the lesbian couples as mentioned In the above case. Thus, the Judiciary had been supportive and tried normalizing LGBTQ members be it by pronouncing verdict against the highest commission of Nepal i.e, National Women Commission, or be it Maithi Nepal.
The Constitution of Nepal, 2072 guarantees Citizenship rights and fundamental rights to the community members as the Historical Verdict was adapted on the "Constitution of Nepal,2072".
Under Article.11(3) states that a child who is found in Nepal where his/her father and mother are not known shall, until the father or the mother of the child is traced be a citizen of Nepal by Descent.
Under Article 12 of the CON, 2072: It states that one can obtain citizenship of Nepal with gender identity by the name of his or her mother or father. Further, A.11(3) states that a child who is found in Nepal where his/her father and mother is not known shall, until the father or the mother of the child is traced be a citizen of Nepal by descent. Thus, this Article introduced the category "O".
Similarly, those who have obtained Citizenship in Nepal are provided with certain Fundamental Rights. As raised before, there can be instances where a same-sex couple isn't respected or discriminated against in society. In such a scenario, one needs to know that the Constitution of Nepal, 2072, provides for the following provisions :
A.16 : Every person shall have a right to live with dignity.
A. 17(2) (a) : Under the right to freedom, it is clearly mentioned that No personal shall be barred from expressing their opinions. Suppose, for example, if a member from the LGBTQ community is trying to express or is deliberating her rights in public for general awareness and at times, one can see that the members from the same locality come and use violence and disturbs the whole program, in such a scenario, the restriction on the expression of an opinion would result in violation of his/her Fundamental Rights. Here, the victim can file an F.I.R against the wrongdoing and the culprit would be penalized.
A. 18(2) : Under Equality before the law provision, it is clearly mentioned that No discrimination shall be made on the basis of sex (and others). Suppose, after coming out of the closet if their parents are not acceptive of the fact of their sexual orientation and refuse to accept them as their child, in such a case, the parents are violating the provisions mentioned under A. 18(2).
Similarly, A. 18(3) further states that No state shall discriminate on grounds of sex( and others) i.e, if a person from a community group visits a Government office, in such a case, the public servant cannot just refuse to provide the service to the person from LGBTQ group which he/she would provide to the person of classic genders as u/a.12 of the CON, 2072 already gave citizenship rights to the third genders.
A. 28 : states that the privacy of any person, his or her residence, property, document, data, correspondence, and matters relating to his or her character shall, except in accordance with the law, be inviolable.
A.39 : as this article can be read along with A. 12. Under this article, it states that every child shall have the name and birth registration along with his or her identity. This article talks about the identity rights of a child.
Further on, as there exist progressive laws in our country, we can find loopholes within the law. To make it more clear, under s. 85 of the National civil code, 2074, under the definition of a valid marriage, the marriage between a male and female is only said to be a marriage. After Pant v. GON Case, the citizenship rights were guaranteed to the transgender individuals but Supreme Court refrained from making a decision on same- sex marrriage. In 2015, a committee was formed to study the possibility of legalising same-sex marriage in Nepal and submitted an 85-page report to the Prime Minister's office. Although, it has been 6years of submission of the report to the Minsitry, yet, the same sex marriage is not recognised in Nepal.
However, as evident as it is, Nepal has already recognized same-sex marriage and the first-ever transgender marriage was between a transgender woman Monika Shahi and a cis-man Ramesh Nath Yadav, 2017. They got their marriage registered in their home district Dadeldhura in western Nepal. This marriage however was registered as Monika shahi already got her Nepali citizen with the "O" category, as she is identify as woman as per the Law. Hence, her marriage with the C-is man fits the current legal definition of marriage as exclusively based on the traditional gender binary of male and female.
Not only that, as we are discussing the historical reforms we have experienced in Nepal, one cannot forget about these two USA lesbian couples, who got married in Dakshinkali Temple, outside the outskirts of Kathmandu, with Vedic rites performed by a Hindu Priest. This is the first lesbian marriage.
Even though the country’s civil code doesn't clearly mention the marriage between community members under the definition of marriage, transgender marriage was first noticed in Monika and Ramesh Yadav's Case.
Further, as Nepal is a country with a westernized mindset but has a hint of traditionalism, not many are accepted about the relationships between community members. There can be cases where the same-sex couples would be criticized badly for living the life of their choice or as in different parts within Nepal many citizens don’t accept the ideology behind the same-sex couples even if it is already legalized. Therefore, one needs to be aware of the constitutional provisions that guarantee rights for Third Genders.
Even though sufficient laws are made to protect the minority's interest, they are still misused to harass LGBTQ people.
As tons of guidelines are executed in Nepal but the kind of awareness that is needed for advocating the rights of the LGBTQ people lacks in some way or the other. Following are some of the ideas as to how we can create an LGBTQ friendly environment :
- The solution for creating LGBTQ people's friendly environment could be by the initiative from the Government as the GON can implement the study of rights of LGBTQ people and acceptance of the third identity in the society from the primary level.
- To my thinking, as we are living in a progressive society, the change must come from within. The parents must start normalizing third gender identities to their children.
- Quick actions should be taken against the people who bully the community members.
- Not only that, if a case is filed before a court with respect to the problems faced by the LGBTQ group, a fast track or summary trial procedure should be implemented so that the people from certain groups will have a faith in the Judiciary and whenever such alike situation arises they won't think twice to approach the Court of Records.
- The government should also conduct an awareness program, make a friendly environment
- The GON should normalize & give a quota system for the people from this specific group as it will help more citizens to be comfortable with their sexual orientation.
Further, the members from this group should be given a chance to act in the cinema's or advertisement through which people will be acceptive of the facts in some way or the other and will start normalizing such minority group.
Lastly, even if the country is supportive of laws and regulations for the community members, the laws would be nothing if the person who is behind the closet anticipates the happening of the event before even coming out of the closet. Further, as Government has already recognized the transgender identities under constitution, the recent laws are more inclined on the transgender people and not towards the LGBIQ acronyms. Therefore, the Government must legislate new guidelines for a valid marriage and amend the provision mentioned under National Civil Code, 2074 and give legal validation to rest of the group as well. As someone who has been studying law for about 7years, what I have analyzed is if you don't speak for yourself then no one else will. Similarly, in this relatable topic if Sunil Babu Pant and Rajini Shahi didn't show courage and fight against all the odds then they wouldn't have been where they are now, i.e, living a life of their choice for themselves and others. As I have tried my best to provide you with the Constitutional provisions securing the rights of LGBTQ. And the only advice I would give you if you are a member or an ally of the LGBTQ community is that if any wrong is happening with you for being who you are, you always have an option to go before the court and help yourself or seek for advice from people who could really help you get out of the trouble as there are many youth advocates like me who would be happy to serve you and the community in General.
[ As the purpose of this Blog is to educate the citizens and non-citizens concerning the rights of the minority groups that are available in Nepal. Here, I have provided the laws and few case laws with respect to the aforesaid content. There are various other Acts and Cases that I haven't mentioned in this blog as the spectrum differs, but will surely provide information in the near future.]