The fight for LGBTQIAA+ (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, and more) rights has been an ongoing struggle for decades. Throughout history, individuals identifying as part of this community have faced discrimination, persecution, and societal exclusion. Many societies viewed non-heterosexual orientations as immoral, criminal, or mentally ill. This discrimination was codified in laws that criminalized same-sex relationships and practices. However, over time, significant changes in legal rules have gradually transformed the landscape of LGBTQ rights worldwide.
Legal Framework and Milestones
Nepal has been a pioneer in the South Asian region when it comes to LGBTQ rights. The country has enacted several progressive laws in this regard. Notably, Nepal’s constitution recognizes the rights of LGBTQ individuals making it the first in Asia to openly acknowledge the human rights of lesbian, gay, bisexual, and transgender people. Article 12 of the constitution allows a person entitled to obtain citizenship of Nepal by descent to obtain citizenship with gender identity. Article 18 addresses the right to equality stating that there will be no discrimination in the application of general laws to gender and sexual minorities. It also mandates special provisions to protect, empower, and develop gender and sexual minorities. Article 42 pertains to social justice granting gender and sexual minorities to participate in state bodies and public services based on the principle of proportional inclusion.
These constitutional developments are the result of various factors, including a historic decision by the Supreme Court of Nepal in the case Sunil Babu Pant v. Nepal Government in 2007. The court ruled that a person’s gender and sexual orientation are private matters and LGBT community in Nepal deserves equal protection and rights under the constitution and international conventions that Nepal is party to. The court also directed the government to form a committee to study and enact laws legalizing same-sex marriage. In 2008 Sunil Babu Pant became Nepal’s first openly gay parliamentarian. In 2015 that committee recommended recognizing same-sex marriage, but the government failed to do so.
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As of the latest development, the Supreme Court of Nepal issued an interim order in June 2023 instructing the government to register same-sex marriages. Activists and advocates had filed a writ petition demanding the legalization of same-sex marriage. The court’s decision was based on Article 18 (right to equality) of the constitution and Section 69 (1) of the civil code which gives freedom to conclude a marriage, establish a family, and spend a conjugal life. With this Nepal became the first South Asian nation to register same-sex marriage on November 30, 2023.
Challenges
Despite these constitutional provisions and the court’s ruling, the legal framework does not currently allow for same-sex marriage. Nepal’s Civil Code section 67 states that If a man and a woman accept each other as the husband and wife through any occasion, ceremony, formal or other act, a marriage shall be deemed to have been concluded. So, homosexual couples in Nepal cannot enjoy rights like heterosexual married couples in terms of adopting children, having joint property, etc.
LGBT individuals experience social exclusion from their families and communities in Nepal. They are denied essential rights, like housing, education, employment, and healthcare. These individuals often face stigma and discrimination in various aspects of their lives, including within families, communities, and workplaces. This can lead to social isolation, harassment, and even violence. There are barriers to accessing healthcare services, including discrimination from healthcare providers or lack of understanding about their health issues. This can lead to reluctance to seek medical care or receiving inadequate treatment.
Despite legal protections against discrimination based on sexual orientation and gender identity in employment, they may still face discrimination in the workplace, including difficulty in finding or retaining employment, harassment, and unequal treatment. Coming out as non-heterosexual can result in rejection from family members, leading to homelessness and a lack of support networks for many individuals. There is a lack of support services tailored to their needs, including mental health support, shelters for those facing homelessness, and community organizations offering resources and advocacy.
LGBTQ+ individuals who belong to marginalized groups, such as ethnic minorities, lower castes, or people with disabilities, have faced compounded discrimination based on their intersecting identities.
There is a significant gap between the progressive legal framework and its implementation. Bureaucratic hurdles and lack of awareness among officials often delay or deny the issuance of identity documents and other rights guaranteed by law.
The Way Forward
To ensure a more inclusive and equitable society for non-heterosexual individuals in Nepal, several steps need to be taken. Nationwide campaigns to educate the public about their rights and issues can help reduce stigma and promote acceptance. Universities should incorporate these topics into their curricula, ensuring that future generations are more knowledgeable and inclusive. Sensitizing law enforcement agencies and government officials on LGBTQ+ issues can improve the implementation of existing laws and reduce instances of discrimination. Further establishing a task force to review and amend existing laws to include LGBTQ+ rights can help close these legal gaps. To bridge the gap between law in books and law in society, implementing training programs for government officials and streamlining administrative processes are essential. Establishing accountability mechanisms to monitor and report on the implementation of LGBTQ+ rights can also ensure that legal protections translate into real-world benefits.
Establishing friendly healthcare services and training healthcare providers can ensure better access and treatment for these individuals. Continued efforts to pass comprehensive anti-discrimination laws and the legalization of same-sex marriage will further strengthen their rights. Creating support systems, such as counseling services and shelters for those facing family rejection or violence, is essential for their well-being.
Strengthening alliances with international organizations can bring in global perspectives and resources, aiding local movements and advocacy efforts. Implementing inclusive policies in workplaces and educational institutions can ensure that they are protected and valued in all areas of life. Engaging religious leaders and communities in dialogue about LGBTQ+ rights can address cultural and religious barriers to acceptance. Finally, establishing legal aid services specifically for LGBTQ+ individuals can ensure they have access to justice and protection under the law.
