Recent rulings by the Nepalese Supreme Court demonstrate the increasingly progressive society for sexual minorities in the high mountain country. While the current government continues to fight these orders, Nepal has quietly become known as a friendly destination for non-binary genders.
On 28 June, in yet another episode for social justice and gender freedom for Nepal’s sexual minorities, the Supreme Court ordered the government to clear all bottlenecks for the legal registration of same-sex couples in Nepal. The preliminary hearing made it crystal clear that same-sex marriage registration must undergo due process in accordance with Nepal’s constitution. This hearing makes Nepal the first South Asian nation to legalize same-sex marriage. Within hours of the order, Nepal was vaunted as the new LGBTQ travel destination.
This order reflects a series of court orders for progressive change taken over the past 15 years. In 2007, the Supreme Court ordered the government to respect the rights of all sexual minorities. One of the petitioners at the time was Sunil Babu Panta, who would turned out to be Asia’s first openly gay parliamentarian the following year.
In 2008, Nepal created its first Constituent Assembly (CA). The 601-member CA included the Communist Party of Nepal (United), which, despite its very limited resources and membership, made history by electing the country’s first openly gay lawmaker. Though the CA failed to draft Nepal’s first CA-drafted constitution within the stipulated timeframe, its agenda for social justice for sexual minorities did not fail. Subsequent CA elections were held in 2013, this time successfully drafting a constitution in which the accommodation of genuine issues relating to sexual minorities was made.
The constitution has been praised by Human Rights Campaign as the “first in Asia to explicitly mention the human rights of lesbian, gay, bisexual and transgender (LGBT) people.” It further added, “Nepal now joins a handful of countries around the world such as South Africa (1996) and Ecuador (1998) that provide protections for LGBT people in their national constitutions.”
Reflecting these changes, Nepal has introduced the “another” gender category for transgender people in official identity documents, and there are some who are already carrying passports with the “o” designation. Bhumika Shrestha, for instance, is a transgender activist who has recently been travelling as a non-binary gender person under this new framework. Stories like Shrestha’s have boosted the nation’s reputation as a progressive-friendly destination for travel. This has been an ongoing process for Nepal. The Guardian wrote, as far back as in 2016, that “Nepal is one of the most forward-looking countries in the world for rights for transgender people.”
Nepal’s sexual minorities have been, for some time, exercising various liberal freedoms not readily available in many other countries. For example, the country’s beauty contests do not prohibit LGBT members from joining the competition, and in 2017 Angel Lama made history by becoming the first transgender contestant to compete in the grand final of Miss Universe Nepal. Meanwhile, Nepal has celebrated Pride March day annually on 29 June since 2019.
Nepal’s sexual minorities are also adopting local indigenous cultural traditions in an effort to help normalise their rights. One such example is a new pride march in the Gai Jatra festival of Nepal’s indigenous Newar community, mainly located in federal capital Kathmandu. This festival was attended by the US Special Envoy to Advance the Human Rights of lesbian, Gay, Bisexual, Transgender, Queer and Intersex persons, Jessica Stern, during her Nepal trip from 10-14 August, 2022. Having participated in the parade, the special envoy openly praised Nepal for its progressiveness, stating in an interview that “Nepal is ahead of many countries in the world because it explicitly recognizes gender and sexual minorities in the constitution.” Stern further remarked that the US and many others had much to learn, noting that Washington had also yet to constitutionally recognise sexual and gender minorities in their constitution.
There are, however, still some thorny issues to iron out. One is legal representation. Despite having constitutionally guaranteed rights for sexual minorities, Nepal’s Civil Code of 2017 continues to outline that marriage happens only in binary genders. This is against the constitution as well as all previous court orders.
For the time being, the Nepalese Government continues to ignore both the court rulings and the constitution. For many same sex couples, such governmental apathy has been distressing, to say the least. In December, Adheep Pokhrel (Nepali) and Tobias Volz (German) failed to obtain a representative visa from the Nepalese Government displaying their marriage status. Tobias was granted a tourist visa instead. While the court has ordered the Government to grant the appropriate non-tourist visa, that has yet to occur. There are countless cases which continue to go unnoticed.
A second hurdle for the social justice of sexual minorities is the political opposition from the conservative sections of Nepal. Nepal’s former deputy prime minister and also heavyweight conservative leader Kamal Thapa has been a vocal critic of the Supreme Court and of sexual minority rights. He has recently excoriated the new orders as “flawed,” commenting further that “same sex marriage goes against natural law, social norms and values.” He has continued to call out against such progressive values, remarking that “Marriage is all about pure relationship between male and female,” noting further that “if same sex marriage is to be given legal reorganization, it will create familial feuds and social disorder.’
Mr. Thapa’s opinion is highly unpopular among voices in both social media and mass media. His support from conservative planks of Nepali politics, which is spread across all political parties, is likely to remain strong.
As for culture, even some of the Hindu scriptures and traditions include LGBT-friendly teachings and practices. This, for some Hindu hardliners of the Hindu majority in Nepal, is not likely to help Mr. Thapa’s agenda. Rather, as the Supreme Court ruling demonstrates, the likes of Thapa are slowly decreasing across the social domains of the new Nepali generation, which bodes well for the long march of social justice for all sexual minorities in Nepal.
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