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'Progressive Laws, but...': Is Nepal Really the Beacon of LGBTQ Rights in Asia?

While the laws are progressive, they have not really translated into meaningful change for the community.

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"Nepal was never colonised, and hence, unlike former British colonies such as India and Pakistan, which inherited colonial laws banning 'unnatural' sex, Nepal did not have any anti-gay legislation on its books," Niranjan Kunwar, the author of Between Queens and the Cities, which is the first queer memoir in English to be published in the country, explained to The Quint.

On 28 June, Nepal became the first South Asian country to recognise same-sex marriages after the country's Supreme Court passed an interim order asking authorities to make temporary arrangements to register such marriages before specific laws are formulated.

This historic decision added yet another feather to Nepal's cap when it came to protecting the rights of gender and sexual minorities.

  • 2007: Nepal's Supreme Court explicitly protects sexual orientation

  • 2010: The Election Commission adds the third gender option to voter rolls

  • 2011: Nepal includes a third gender on its national census, in a first in the world

  • 2015: Passports start recognising three genders

Yet, many from the LGBTQIA+ community in Nepal allege that "the attitude of the society towards them is the same as it was 15 years back," when the Supreme Court first recognised gender and sexual identities.

The Quint looks at how the ground reality for LGBTQIA+ persons in Nepal, which has a long history of queer struggle, is still far from conducive despite its progressive laws.

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How Nepal's LGBTQ Movement Came of Age During Civil War

When Nepal transitioned from an autocracy to a democracy in 2008, Nepal's gay community was among the first groups to demand recognition, along with the country's ethnic minorities.

As Kyle Knight, a researcher on the LGBTQIA+ rights programme at Human Rights Watch, said: "The movement came of age during the 1996-2006 civil war and found its footing in the aftermath."

"Activists joined in the protests against the monarchy and contributed to the conversations about what a 'new Nepal' should look like – this gave them a huge amount of social legitimacy," he told The Guardian in 2016.

But as Kunwar explained, with no anti-gay legislation, Nepal saw laws being twisted to target the community. For instance, a revision in the 1960s introduced a clause forbidding "unnatural sex."

In 2004, it was probably used for the very first time to argue the shutting down of Blue Diamond Society (BDS), Nepal's first queer NGO, founded by former parliamentarian and gender rights activist Sunil Babu Pant in 2001.

"A lawyer named Achyut Prasad Kharel had petitioned to the Nepalese government to shut BDS down for encouraging homosexuality in the name of human rights. His case led to an increase in violence against LGBTQIA+ people," recalled Pant.

Between 2003 and 2006 (when the country was still not a democracy), at least 90 people from the queer community had been attacked, as recorded by the BDS.

The case was dismissed by the Nepalese government on grounds of "homosexuality not being a criminal issue."

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The 2007 Judgment That Changed It All

Speaking about how the community was subjected to discrimination and violence, Pant told The Quint that it was this very discrimination that compelled him and others to file a petition in 2007 – the verdict of which went on to become a landmark one.

"In 2003, when the Emergency was imposed in Nepal after the transition from monarchy to autocracy, security forces descended on the streets. The third-gender population was subjected to a lot of violence, both from the forces as well as the Maoists. The forces used to detain trans persons under some pretext or the other," he told The Quint.

On 26 August 2004, a police officer slit a transgender woman's throat after forcing her to perform oral sex. "After the Kharel case, police came after us more aggressively," Pant added.

Two years later, a pro-democracy movement began.

"This helped us make connections with a few political parties who were quite welcoming of us. After the peace accord was signed in New Delhi, an interim Parliament was made and they sought suggestions on what to include in the Constitution. We asked that LGBTQIA+ rights be included in the Constitution, but our suggestions were not tabled. That is when we decided to move the court," he said.

Within eight months of their petition, the top court passed a favourable decision, which clearly stated that LGBTQIA+ people are 'natural'. It recognised the community's rights as 'fundamental human rights', and legalised homosexuality – in a first for a South Asian nation.

In its order, the court also asked the government to form a panel to study same-sex marriages and come up with legal provisions based on its suggestions and recommendations. The committee submitted its report in 2015, recommending same-sex marriage. However, it never gained steam.

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The Reality on the Ground

After the 2007 judgment – and what followed afterwards – Nepal earned a global image of being a beacon of LGBTQIA+ rights. But while these laws have been considered progressive, they have not translated into changes in the larger society, and members of the community are still discriminated against, activists alleged to The Quint.

For instance, days after the top court's historic decision to recognise same-sex marriage, the Kathmandu District Court rejected a marriage registration application filed by a gay couple on the grounds that both applicants belong to the same sex.

"This is not only a blow to the rights of sexual minorities, but also a dishonour to the Supreme Court's order," said Pant.

In his paper 'Everyday Lives of LGBTI in Kathmandu Valley: A Narrative Inquiry', Megh Vilas Bhatta, Faculty, Department of Humanities and Social Sciences at Budhanilkantha School in Kathmandu, has noted how "there is widespread intolerance for LGBTI community in the Nepalese society on the basis that they do not conform to set notions for male or female gender identity."

He told The Quint that the community suffers from extensive prejudice, discrimination, and violence.

"One of the participants in my paper told me that she was denied a house for rent by the landlord in Kathmandu because of her gender. The landlord called her a hijra and said that a misfortune would occur if he rented it out to her."

Bhakti Shah, a transgender man, told The Quint that people's perception toward "sexual minorities is the same as it was 15 years ago before the Supreme Court ruling on gender identity."

Shah worked in the Nepal Army, where he was accused of having sex with a woman in the barracks, and subsequently removed from his position in 2009.

"I was imprisoned for 60 days in a big hall with vaulted ceilings. They kept telling me that I was a criminal ... They told me that I exhibited homosexual behaviour and that I was a black mark on the whole army because of my sexuality. They later called me and said that I was now expelled from the Royal Nepal Army and that I should go home," recalled Shah.

"The conversation regarding queer rights has not progressed beyond the 2007 verdict. We are still treated like third-class citizens," said Rukshana Kapali, a queer rights activist.

A transgender woman who was bullied and abused by her school principal during her school years, Kapali was later formally allowed to study at Tribhuwan University.

Though she could study again, she was not formally registered as a student, as her high school transcript identifies her as a "male" under her deadname.

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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Topics:  Nepal   Explainer   LGBT Community 

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