While India keeps patting its own back claiming we are a ‘tolerant’ nation, small sister Nepal is the trail-blazer when it comes to protection of ‘minuscule minorities.’ It has firmly rooted for the legal rights of LGBTI people in South Asia.

In 2007, Nepal was the first (and so far only) country in South Asia to decriminalise consensual same-sex relations. India took a wispy-washy stand, and then the judgement of Delhi High Court, which had upheld LGBTI rights, was reversed by India’s Supreme Court, which refused to humour ‘minuscule minorities’.

Look at the difference! In December 2007, the Supreme Court of Nepal (at that point of time Nepal was still a ‘Hindu nation’) issued a landmark decision, Pant vs. Nepal, which not only decriminalised same-sex relations but also recognised the “inherent right of an adult to have marital relation[s] with another adult”. The court ordered the Nepalese government to establish a committee to study global experiences on the recognition of same-sex couples and make appropriate changes in legislation. The committee, set up by the government in 2010, issued its report in February 2015. Significantly, it recommended legislating for marriage equality, as well as equal family protection for same-sex couples and their children. In India, LGBT rights are continually denied because legislators don’t have the will or the courage to take on religious bigots!

In Nepal, the rights of gender-diverse persons have also progressed: a third gender option was recognised in the National Census in 2011, on citizenship cards since 2013 and on passports since August 2015. Like India, Bangladesh and Pakistan, Nepal has a significant community of persons who identify as third gender and whose gender identity incorporates aspects of both masculinity and femininity.

The most recent advance in LGBTI rights took place in September 2015, when Nepal became the first country in Asia to include protections for LGBTI people in its constitution. The new Constitution of Nepal, which took years to negotiate and was subject to repeated delays, was enacted on September 20. This new constitution has made Nepal unique, here’s why:

The Constitution prohibits the state from discriminating on the basis of “sexual orientation” and “gender” (including in the application of laws). The Nepalese constitution explicitly provides “gender and sexual minorities” with “the right to employment in state structures and public service on the basis of the principle of inclusion”. This provision, which implements a form of affirmative action for LGBTI people, is unprecedented anywhere in the world.

Moreover, the constitution provides every citizen with the right to be issued citizenship certificates in line with their gender identity, another constitutional provision that is unique globally.This means that homophobic and transphobic officials can’t throw spanners in the works and deny them citizenship cards.

The inability of gender-diverse persons to have their gender identity reflected on their citizenship cards has resulted in significant barriers, including challenges with voting and accessing public services.

The new constitution’s prohibition on the state discriminating on the basis of sexual orientation and gender may assist in legal efforts to recognise gender-neutral marriage.

After the new constitution was enacted, the Blue Diamond Society — the largest LGBTI organisation in the country — announced that “it is phenomenal that Nepal is embracing GSM [gender and sexual minority] citizens” and “establishing our identity, rights and representation”. At the same time, the organisation noted that “we are under no illusions to the fact that this is just the beginning of the long road ahead towards full equality, dignity, rights and mainstreaming of GSM communities in Nepal”.

The next step? Nepal has no laws protecting LGBTI people against discrimination by private actors, such as employers and providers of education, health care and other services. 60 per cent of LGBTI people had experienced at least one incident of discrimination in employment, education or health care. Access to health care was a particular issue, with 23 per cent of LGBTI being denied service by health care professionals.

Nepal has put in place an enviable constitutional framework in respect of the rights of LGBTI people. The way forward is to ensure that constitutional norms and other progressive legal reforms filter down to the grassroots level, ensuring that all LGBTI people are able to, in practice, obtain effective protection against discrimination by state officials and private actors, have their gender identities recognised in official documents and have their relationships treated equally under the law.

As for India, we have ‘recognised’ that the ‘Third gender’ exists, but the state will throw them in jail if they have sex, or even attempt to marry. The term ‘gender-neutral marriage’ doesn’t exist, not even in our media vocabulary!

  LGBT, Nepal