LGBT rights in Nepal

The Nepali Supreme Court (pictured) issued a ruling in 2007 in the case of Sunil Babu Pant and Others v. Nepal Government in favor of LGBT rights.

One of the first cases to determine the shift in legislation regarding LGBTI rights in Nepal was the 2007 Supreme Court case Sunil Babu Pant and Others v. Nepal Government.[12] After their participation in demonstrations that brought down the monarchy, LGBT rights groups, found themselves largely ignored by the current political establishment, and turned to the judiciary as a more effective way to secure their rights.[13] In April 2007, a coalition of organizations representing LGBTI Nepalis filed a writ petition under Article 107 (2) of the Interim Constitution of Nepal.[10]

The petition, filed by the Blue Diamond Society, Mitini Nepal, Cruse AIDS Nepal and Parichaya Nepal, expressed "dissenting view with the prevalent societal structures or norms as well as legal provisions adopted by the state based on the interest of majority people".[12] The petition asked that Nepal officially recognize "transgender individuals as a third gender, prohibit any discriminatory laws on the basis of sexual orientation and gender identity, and invest due finances for reparations by the State to victims of State violence and discrimination".[12]

On 21 December 2007, the Supreme Court ruled that the new democratic government must create laws to protect LGBTI rights and change existing laws that are tantamount to discrimination.[14][15] Based on the Yogyakarta Principles and the Special Procedures of the UN Human Rights Council, the court concluded that sexual orientation is to be defined by one's self-identification and a natural process rather than a result of "mental, emotional or psychological disorder".[10] While not explicitly legalizing same-sex marriage, the ruling instructed the government to form a committee to look into "decriminalizing and de-stigmatizing same-sex marriage".[16]

A bill to legalize same-sex marriage was drafted and was supposed to be introduced by 2010.[17] In the drafting of the new Nepalese Constitution, same-sex marriage and protection for sexual minorities were supposed to be established.[4][5] However, negotiations on the new Constitution failed and the Prime Minister dissolved the Constituent Assembly on 28 May 2012 in preparation for new elections.[18] As a result, the future of explicitly addressing the legality of same-sex marriage was uncertain. Ultimately, the Constitution was adopted in 2015 but does not address same-sex marriage.

As of 2019, a bill to legalise same-sex marriage was being drafted and prepared by the government,[19] though LGBT activists have accused it of being "lukewarm" in its support. In August 2018, former Prime Minister Baburam Bhattarai urged it to legalise same-sex marriage.[20]

The new Nepali Civil Code, which came into effect in August 2018, does not address same-sex marriage and specifically defines marriage as being between partners of the opposite sex. Activists have called out the Civil Code as unconstitutional and contrary to Supreme Court guidelines.[19][21]

Nepal, similarly to India, Bangladesh and Pakistan, has an indigenous third gender community, considered by society as neither male or female. Such individuals, known as metis, are assigned male at birth but commonly act, dress and behave as female. Although metis (मेटी) have traditionally had important roles at weddings or at the birth of a child to ward off evil spirits, they now regularly face discrimination in education, health, housing, and employment. They are often referred to as transgender in English language publications. The term fulumulu (फुलुमुलु) is used in eastern Nepal.[24] Among the Gurung people, there is a tradition of men dancing in female clothing, called maarunis, typically at barracks or at royal palaces, and are believed to bring good luck.[25]

In 2007, the Supreme Court legally established a gender category called "other".[10][22] The Nepali Supreme Court stated that the criteria for identifying one's gender is based on the individual's self-identification.[26]

The Supreme Court's decision to implement a "third gender" may have stemmed from the long-held contemporary acknowledgment of gender variant peoples, known as metis as well as the religious traditions revering non-gender conforming characters.[27] In a global perspective, Nepal's Supreme Court decision also contrasts with neighboring India's developments in reviving a colonial-era anti-sodomy law criminalizing same-sex intercourse.[28] However, in other Asian countries/territories such as Hong Kong, Malaysia and Pakistan, there have been trends of progressive judicial decisions on the rights of LGBT people.[29]

Nepalese law only allows gender markers to be changed from "M" (male) or "F" (female) to "O". There are no provisions allowing transgender women to have an "F" marker or transgender men having an "M" marker. Certain activists and young LGBTI Nepalis have criticized what they call a "gender trinary", instead advocating for complete self-determination.[30] In 2019, LGBT activist Rukshana Kapali took an open stand against labeling herself as "third gender".[31]

Hormone replacement therapy and sex reassignment surgery are technically not available in Nepal,[32] though some doctors may perform such procedures. However, they are reported to be "costly". Hormone replacement drugs cost 4,500 rupees for a six-month period. Many Nepali transgender people go to Thailand or India to undergo reassignment surgery.[33] In 2019, there were discussions in Parliament to require applicants to undergo sex changes in order to apply for an "O" sex descriptor.[34]

While the Nepalese political landscape has rapidly changed in the past decade, much of the progressive legislation has not been implemented at the community level. Traditional Nepalese gender roles stem from rigid ideals based on biological sex that ostracize anyone failing to conform.[27] These norms may stigmatize any LGBT Nepalis who choose to operate outside of the gender roles, but affect LGBT women in particular, as women, more than men, are expected to conform to societal expectations.[42]

However, human rights organizations like the Blue Diamond Society, established in 2001, seek to represent LGBT people in Nepal politically and provide assistance with sexual health in the community. A drop-in centre with free HIV testing exists in Kathmandu along with more than 50 different branches of the organization across the country. Other organizations such as Mitini Nepal, Parichaya Samaj and Sahaayam Nepal also exist to provide resources for LGBT Nepalis. The media and public have also become more sympathetic to LGBT rights since homophobic acts and crimes against members of the Blue Diamond Society became public, and after they started their radio program called Pahichan, a program that discusses sexual and gender minority rights.[27][13][42]

Nepal Pride is an annual LGBT event held in Kathmandu. It was first held in 2001 and was attended by 49 people, most of whom wore masks to avoid being recognized. In recent years, the event has attracted about 1,500 people.[43] It purposefully coincides with the Gai Jatra festival, one of the oldest festivals celebrated in the Kathmandu Valley.

Gender-based violence against transgender people is a severe issue in Nepal where they often find themselves susceptible to both public and domestic violence, abuse in the workplace and at home, and elsewhere. Reasons for gender-based violence are largely attributed to social taboos and superstitions and deeply entrenched beliefs that propagate derogatory attitudes towards sexual and gender minorities. Violence also stems from law enforcement such as the police force, as many LGBT individuals report severe beatings, body searches and undue detainment.[42] Likewise, results derived from INSEC's monitoring of the situation indicated that subjugating women to domestic violence was considered a deep-rooted traditional practice.[44]

Survey results also show that 20-23% of transgender women in Nepal view domestic violence as being acceptable. Despite efforts of various human rights and LGBT rights NGOs, together with international aid agencies, to lobby for the elimination of violence through the implementation of more effective measures. Complaints by transgender rights activists are directed towards the lackadaisical efforts of the law enforcement agencies in which disputes are settled without any charges pressed against the perpetrators.[42]

The United Nations Development Programme has recommended that Nepal incorporate these ideals into the education system to ensure inclusive and equitable quality education:[29]

• Require all schools and other education providers to adopt anti-bullying policies to protect LGBTI students, and ensure teachers receive training on how to respond to homophobic and transphobic bullying.
• Integrate education on sexual orientation, gender identity, gender expression, and intersex status into school curricula in age-appropriate ways.
• Provide non-discriminatory sex education to address taboos surrounding adolescent sexuality, sexual orientation, gender identity, and gender expression and provide adolescents with access to accurate information about the diversity of sexualities, gender identities, and sex variations.
• Recognize the right of students to freedom of gender expression in the school environment. Students should be allowed to wear uniforms and express an appearance that corresponds to the gender with which they identify.
• Provide all students, including transgender and intersex students, with access to safe toilets and bathroom facilities.
• Develop policies and practices to support transgender students who transition while at school, including by ensuring their rights to privacy, dignity, and respect, and enabling their name and sex or gender details to be amended on school records.
• Provide educational resources for parents of LGBTI children

Nepal's Education Board has implemented information about sexual and gender diversity in the curriculum of grades 7-9 (age 13-15), making Nepal the second Asian country, after Mongolia, to implement this.[27] Universities also possess courses about LGBT issues. However, many LGBT children still face discrimination and are unable to complete their education due to "threats, bullying, and neglect from fellow students and teachers alike."[42] Furthermore, transgender Nepalis face severe gender-based violence and are unable to receive a proper education, especially in rural areas.[45]

There has been an increased level of participation in the political arena by openly LGBTI politicians such as Sunil Babu Pant, the first openly gay parliamentarian in Asia.[29] Pant served from 2008-2012.[27] Pant was also one of the 27 experts at the meeting consolidating the Yogyakarta Principles.

The Communist Party of Nepal-Maoist made several homophobic statements during the Civil War. Until 2007, party members had described homosexuality as "a production of capitalism" that "doesn't exist under socialism", and LGBT people as "social pollutants."[44] Since 2008, with the end of the insurgency and the beginning of a multi-party democracy, the Maoist Party has come out as supporters of LGBT rights.[46][47]

The HIV/AIDS epidemic affects LGBTI Nepalis across the board. 2009 estimates showed that about 3.8% of men who have sex with men (MSM) in Nepal were HIV-positive; an increase from 3.3% in 2007. In 2007, MSM in Nepal were 9.2 times more likely to acquire HIV infection than heterosexuals, notably lower than neighboring China (45 times more likely) or India (17.6 times more likely).[48]

Lesbian couples are also denied access to vitro fertilization (IVF). Across the country, there is a severe lack of access to comprehensive health care as well as a lack of research on the mental, physical, and reproductive needs of LGBT Nepalis.[27]

The Nepal Tourism Board has made plans to promote Nepal as an LGBT-friendly tourist destination. An LGBT tourism conference occurred in February 2010. Sensitivity training was conducted in selected catering and hospitality venues.[49]

• Blue Diamond Society
• Mitini Nepal[50]

• Anjali Lama, a transgender model[51]
• Suman Pant, whose Supreme Court case established a precedent for same-sex spousal visa[52]
• Sunil Babu Pant, the first openly gay legislator in Nepal
• Bhumika Shrestha, a "third gender" advocate

Several LGBT-related events are held in Nepal. These include the main Nepal Pride Parade, also known as the Queer Pride Parade (Nepali: क्वयेर गौरव्यात्रा; Nepal Bhasa: कुएर गौरबयाः; Tamang: ཀྭཡེར་གོོརབལླ་ཀུངླདླིབ), held on 29 June 2019, and the National Gender and Sexual Minorities Day. International events such as the International Transgender Day of Visibility, the National Coming Out Day and the Transgender Day of Remembrance are also observed.

Several smaller events include Asexual Awareness Week (Last week of October), Celebrate Bisexuality Day (23 September), an awareness day for hijras (17 April) and Intersex Awareness Day (26 October). An "International Day for Men who are attracted to Transwomen" is also celebrated on 5 April.[53]