Policy Alert : The Nepal Supreme Court Judgement

The landmark judgement of the Nepal Supreme Court has directed the Government of Nepal to give gender and sexual minorities in Nepal equal rights as any other person and protect them from violations on the basis of them being `natural persons'. Below are some excerpts from the judgement as well as consequences that the judgment has already had.

The Court has also ordered the government to set up a committee to look into the issue of same-sex marriage, study it, and follow the recommendations of the committee. How did this happen?

Blue Diamond Society, Mitini Nepal, Crusaid and Parichaya Samaj filed a writ petition with the Supreme Court of Nepal on April 18, 2007 against the Government of Nepal, Office of the Prime Minister and Cabinet, Ministry of Law, Justice and Parliamentary Affairs, and Parliament of Nepal.

They wanted the government to end the violent, degrading behaviour by State and society on the basis of sexual orientation and gender identities; to give citizenship ID reflecting the gender identity of `third gender' people; to remove discriminatory laws and change the law by involving sexual and gender minorities to ensure equal rights and protections for them.

The case was heard three times in eight months and on December 21, 2007 the Court passed its historic judgement.

The Court said `Though, lesbian, gay, bisexual, third gender and inter-sex or LGBTIs are not heterosexual man and women in terms of sexual orientation and/or gender identities, they are natural persons. The Articles from 12 to 32 of the Chapter Three of the Interim Constitution of Nepal has bestowed each Nepali citizen all fundamental rights. Though they are in minority, by virtue of being Nepali citizens, to enjoy those rights on their own identity are the fundamental rights of petitioners…'

It went on to say, `The fundamental rights set forth in the constitution and the human rights enshrined in the international human rights treaties in which Nepal is a party, cannot be interpreted in a way that only heterosexual men and women can enjoy it just because men and women genders are mentioned in the constitution. Aside from the heterosexual men and women, LGBTI are as well natural persons and therefore LGBTI are entitled for enjoyment of the rights provided by constitution, law and the human rights conventions. The State has the obligation to create such environment and formulate laws in that line; interpretation cannot be made in such a way that only male and female can enjoy those rights and being LGBTI they cannot enjoy the same rights. The right to freedom has been set forth in the Article12 (2). This Article should be regarded as right to life. The terms woman and man have not been included in this Article 12. The freedom provided in this Article is for everyone. The term person refers to natural person. As LGBTI also are Nepali natural persons, they should be allowed to live in Nepali society with dignity through enjoyment of all freedoms.'

The judgement refers also to relevant articles from the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) which Nepal is legally bound to comply with.

The writ petition had also demanded the right to same sex marriage. The Court took a more cautious view of this and ordered that a seven member committee be formed to learn about the practices and jurisprudence that has been developed in other countries at the regional as well as the global level.

The Government of Nepal will, after receiving the recommendations of the committee, take the necessary legal steps in line with the recommendations of the committee. The Court also ordered that a copy of the report of the committee be submitted to the Court.

So, what are the implications of the Supreme Court's judgement?

Already, there is less violence and discrimination against LGBTIs in Nepal. More people are open about their sexual orientation and gender identity, and their self esteem is improving. More political parties, leaders, and civil society are openly advocating LGBTI rights and inclusion. Representation of LGBTI in politics will increase and they have begun to contest local elections. The UN gender policy will be revised and third gender people will be included and treated equally for all UN business.

Passport, visa forms and other forms will be changed to recognise the third gender. Third gender people will be allowed to travel with their passport freely. There will be equal opportunities for jobs and access to public services for LGBTI. This ruling can be a good example for other countries in Asia to promote LGBTI rights in their own countries.