Sujan Panta / Pahichan – The meanings of sex and gender are widely contested in the hard and soft sciences, in the humanities, in legal theory, in women’s and gender studies, and increasingly in popular discourse. Ultimately, the only thing we know for sure about what sex means, or what gender means, is what state actors, backed by the force of law, say those words mean.
It expects men and women to only be sexually attracted to the opposite sex. However, history from societies around the world shows that many people are not only men and women, many men and women are non-heterosexual; they are third genders and also either bisexual or homosexual.
There are probably hundreds of thousands of sexual and gender minority people in Nepal across every social class, caste, religion, background and profession. Female homosexuals (lesbians), male homosexuals (gays), bisexuals, inter sexual as well as the people of the third gender are considered as minority people on the basis of sexual orientation and gender identity. Such people are also known as homosexuals and third gender or transgender people. They have been categorized under the five different groups. Those are known as lesbian, gay, bi-sexual, trans-gender and inter sexual (LGBTI). Such identities of human beings are not hypothetical but a scientifically proved fact. On 17 May 1990, the General Assembly of the World Health Organization (WHO) removed homosexuality from their list of mental disorders. ¦is action served to end more than a century of medical homophobia.
The WHO has acknowledged the fact of the existence and birth of such types of people. By confirming the existence of such types of people, the report has also emphasized that it is a natural phenomenon instead of mental disorder. Transgender and homo-sexual communities have existed in almost all parts of the world, with their own local identities, custom and rituals. They have been variously known as Baklas in Philippines, Berdaches among American Indian Tribes, and Xaniths in Oman, Serrers in Africa and Hijras, Jogappas, Jogtas, Shiva Shakti in south Asia, Even Kothis and Hijras are used to identify third gender in India, In Nepal word Metis is used to denote transgender from male to female.
LGBTI in International Human Rights Law
No UN convention explicitly mentions sexual orientation as grounds for discrimination, or identifies LGBTI individuals as a particular social group with rights. Only by appealing to the UN conventions more broadly sexual and gender minorities have been able to use international conventions for protection of their individual rights. ¦e case for extending the same rights to lesbian, gay, bisexual and transgender (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated. It rests on two fundamental principles that underpin international human rights law: equality and non-discrimination.
The opening words of the Universal Declaration of Human Rights are unequivocal: “All human beings are born free and equal in dignity and rights.”4 Concerns about these and related violations have been ex-pressed repeatedly by United Nations human rights mechanisms since the early 1990s. These mechanisms include the treaty bodies established to monitor States’ compliance with international human rights treaties, and the Special Rapporteurs and other Independent experts appointed by the former Commission on Human Rights and its successor the Human Rights Council to investigate and report on pressing human rights challenges.
In 2011, the Human Rights Council adopted a resolution expressing “grave concern” at violence and discrimination against individuals based on their sexual orientation and gender identity.The need for action to end these violations is increasingly widely recognized, if not universally accepted.5 After decades during which the words “sexual orientation” and “gender identity” were rarely uttered in formal, intergovernmental meetings at the United Nations, a debate is unfolding at the Human Rights Council in Geneva on the rights of lesbian, gay, bisexual and transgender people. ¦e discussions at the Council have focused political attention on discriminatory laws and practices at the national level and on the obligations of States under international human rights law to address these through legislative and other measures.6 In June 2011, the Council adopted resolution 17/19 – the first United Nations resolution on human rights, sexual orientation and gender identity.
The resolution was approved by a narrow margin but, significantly, received support from Council members from all regions. Its adoption paved the way for the first official United Nations report on the same subject, prepared by the Office of the High Commissioner for Human Rights.7 The High Commissioner’s report presented evidence of a pattern of systematic violence and discrimination directed at people in all regions because of their sexual orientation and gender identity – from discrimination in employment, health care and education, to criminalization and targeted physical attacks, even killings. The report included a set of recommendations addressed to States designed to strengthen protection of the human rights of lesbian, gay, bisexual and transgender (LGBT) persons.
The report’s findings formed the basis of panel discussion that took place at the Council on 7 March 2012 – the first time United Nations intergovernmental body had held a formal debate on the issue.8 Reference to sexual and gender minorities are common. It is also fact that six of the eight principal human rights treaty bodies regularly refers to sexual orientations and gender identities.These includes the Committee on Civil and Political Rights, the committee on Economic, Social and Cultural Rights, the committee on Elimination of Discrimination Against Women, the committee on Elimination of Racial Discrimination, the committee on the Rights of Child and the committee Against Torture.
Second, both the concluding observations of the treaty bodies when reviewing States ‘periodic reports and the reports of the special procedures o§er a clear picture of the range of violations faced by lesbian, gay, bisexual and transgender people. State-sponsored expressions of homophobia range from the criminalization of same sex sexual activity to oficially sanctioned discrimination in access to jobs, health care, education, and housing.
Transgender persons are prevented from changing their gender on official documents. In many countries, LGBT individuals simply do not have the same protection and enjoyment of rights that are supposed to be universally guaranteed. For example, they are denied permission to form associations or organizations, they are prevented from holding parades or demonstrations, and even their speech is censored. Without the rights of freedom of association, assembly, and expression, they are rendered invisible. Official discrimination, in turn, signals to the wider public that LGBT people, or those perceived as being nonconforming in their sexual orientation, gender identity, or gender expression, are appropriate targets for abuse. At the hands of non-state actors, LGBT individuals are frequent victims of hate speech and hate violence. And because police harassment and abuse is also common, victims often have nowhere to turn for help. Third, rights are interrelated. A single act or event can produce multiple violations.
A law that criminalizes same-sex sexual activity not only runs counter to the rights to privacy and non-discrimination contained in the International Covenant on Civil and Political Rights, it also drives vulnerable populations underground and prevents them from accessing treatment, thus undermining their right to health guaranteed in the International Covenant on Economic, Social and Rights. Arrest and detention of same-sex couples solely on grounds of their sexual orientation or private consensual sexual activity, is not only in breach of the nondiscrimination guarantee, it also breaches the guarantee on freedom from arbitrary detention. Restrictions on freedom of expression and peaceful assembly impact not only LGBT individuals and groups, but also the essential work of human rights defenders.12 Finally, although this picture is indeed bleak, it is also evident that the international human rights system promotes and protects the human rights of everyone, regardless of sexual orientation or gender identity.
The treaty bodies and special procedures of the UN regularly and consistently urge States to reform penal legislation, to decriminalize consensual adult sexual activity, to end police abuse, and to enact non-discrimination laws that protect everyone. Violations are documented and governments are called to account. The human rights mechanisms are thus deeply engaged in the project of universality – sending the strong message that all human rights are interdependent and universal. In the words of the UN High Commissioner for Human Rights, “The principle of universality admits no exception. Human rights truly are the birthright of all human beings.”
LGBTI in International Human Rights Instrument
The legal obligations of States to safeguard the human rights of LGBT and inter sex people are well established in international human rights law on the basis of the Universal Declaration of Human Rights and subsequently agreed international human rights treaties. Similarly International Covenant on Economic, Social and Cultural Rights Article 2(2) reads “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Similarly International Covenant on the Elimination of All Forms of Racial Discrimination Article 1(1).reads “In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
All people, irrespective of sex, sexual orientation or gender identity, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly. The protection of people on the basis of sexual orientation and gender identity does not require the creation of new rights or special rights for LGBT people.
Rather, it requires enforcement of the universally applicable guarantee of nondiscrimination in the enjoyment of all rights. On 26 March 2007, a group of human rights experts launched the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles). The Principles are intended as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfill the human rights of all persons regardless of their sexual orientation or gender identity. Since their launch the Principles have attracted considerable attention on the part of States, United Nations actors and civil society.
In recent times recognizing LGBTI people’s right constitutionally is speeding up. Even in the draft prepared by Fundamental Rights Committee of the then Constituent Assembly of Nepal has recommended writing sexual orientation and gender identity as basis of equality. Unfortunately the then Constituent Assembly could not promulgate new constitution. Below are the constitutions of different countries which have guaranteed sexual orientation and often gender identity. From the view point of human rights and constitutional rights, there are several rights to exercise like Interim constitution 2063 of Nepal in Article 12 to 32 under the fundamental rights such as right to equality, right to life, right to freedom, and so on.
Though no such words as sexual orientation and gender identity is incorporated in Interim Constitution of Nepal, it completely discards discrimination on grounds of gender and accepts universal applicability of human beings born free and equal. Under Chapter two Bill of Rights South Africa has incorporated under Article 9 the right to equality before the law and freedom from discrimination. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth on article 9(3). Thus discrimination on the ground of sexual orientation has been constitutionally prohibited under South African Constitution. The constitution of Portugal amended in 2004 has incorporated sexual orientation as ground of equality under Article 13 Right to Equality.
So, sexual orientation has been incorporated as principle in Portuguese constitution. The word sexual orientation has been incorporated in constitution of Ecuador and it is probably the first constitution of the world which states gender identity as well. Further provisions of same sex marriage and recognition of same sex relation is constitutionally guaranteed in Ecuador. Article 14 of the constitution of Bolivia prohibits discrimination based on sex, gender identity, or sexual preference. Currently there are 15 countries in the world that officially recognize same sex marriage.
These countries include Netherlands (2001), Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Uruguay (2013), New Zealand (2013), France (2013) and England.19 The same sex marriage committee had submitted its reports to Nepal government and there are ample possibilities of Nepal being first Asian countries allowing same sex marriage legally.
Signicance of Sunil Babu Panta et.al. writ 2007 20 and Subsequent Development
The Supreme Court (SC) ruling came following a writ petition submitted by Blue Diamond Society demanding that the rights of LGBTI individuals of Nepal enjoy equal protection and standing before the law. In response, the Court ordered the government of Nepal to ensure that all individuals have the right to live according to their own identity, and to correct those laws that discriminated against the rights of LGBTI individuals. The Supreme Court acknowledges the growing ascendance of the notion that homosexuals and third gender people are not mentally ill or sexually perverts.Therefore, their rights should be protected and they should not be discriminated in the enjoyment of rights guaranteed by the constitution and human rights instruments. The Court holds that it is an appropriate time to think about decriminalizing and destigmatizing the same sex marriage as according to it. The Court takes the view that no one has the right to question how do two adults perform the sexual intercourse and whether this intercourse is natural or unnatural and that the way the right to privacy is secured to two heterosexual individuals in sexual intercourse, it is equally secured to the people of third gender who have different gender identity and sexual orientation. The court further holds that gender identity and sexual orientation of the third gender and homosexuals cannot be ignored by treating the sexual intercourse among them as unnatural.
The court takes the view that selection of sexual partner or fixing of marital relation is a matter falling entirely within the ambit of the right to self-determination of such an individual. It also seems to be in favor of gradual internalization of international practices in regard to the enjoyment of the right of an individual in the context of changing global society and practices of respecting the rights of minority. It calls upon the state to create appropriate environment and make legal provisions to enable the LGBTI people enjoy fundamental rights and insert provisions in the new constitution to be drafted by the Constituent Assembly, guaranteeing non-discrimination on the ground of ‘gender identity’ and the ‘sexual orientation’ besides ‘sex’ in line with the Bill of Rights of the Constitution of South Africa. It issues a directive order to the Government of Nepal to form a Committee in order to undertake the study on overall issues in this regard and make the legal provisions after considering recommendation made by the said Committee.
Thus the Supreme Court (SC) of Nepal ruled in support of legislation guaranteeing the rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals, and identifying all sexual and gender minorities (SGMs) as “natural persons” under the law. The court decision declared that “the law shall be considered as discriminatory which does not allow the people to enjoy their fundamental rights and freedoms with their own identity” and ordered the government of Nepal to reform any legislation referring exclusively to men and women and not third Gender. Furthermore, the decision ordered the issuing of legal documents, including citizenship cards and passports, with an identity category for third Gender, and confirmed the right to same-sex marriage under Nepal’s legal framework. This included directions to form a seven-member committee whose task would be to explore the institutions regulating same sex marriage in other countries, and to subsequently recommend appropriate institutions for Nepal. This was a major breakthrough in the process of rights recognition for sexual minorities in Nepal, who have faced significant levels of discrimination and abuse in this conservative Himalayan country. The legal and political environment has improved since 2007 as a result of the Supreme Court decision and hostility towards SGM and transgender people has decreased.
Prior to 2007, the NGO Blue Diamond Society states there were numerous reports of SGM and transgender people being harassed by police, arbitrarily arrested using Nepal’s public laws, held without a hearing and beaten and tortured by prison guards. Nepal is an excellent model for activism and advocacy for LGBT rights, and the manner in which it has combined HIV interventions, mobilization for rights with grassroots protests against every instance of violence and discrimination, and in the manner it has leveraged both legal options along with social advocacy by usurping traditional cultural icons like festivals and queering it, its success in joining other civil society movements including for democracy, can provide a template for other activists in the region working for LGBT rights. The government has also been making allocation in the national budget for LGBT welfare measures. While the amount of allocation may be small enough to be called symbolic, it is being increased every year and its import is not far to seek. It makes Nepal the only country in the region to officially acknowledge the rights of LGBT persons, and speak of their welfare as a state obligation.
Though no UN convention directly mentions about sexual orientation, but recent development within UN committees refers equal treatment of Sexual Orientation and Gender Identity (SOGI) rights. Major universal human rights conventions and declarations completely discard the discrimination on unequal treatment of all kind, such instruments includes Universal Declaration of Human Rights (UDHR), ICCPR, CEDAW and even UN charter. The UDHR adopted by United Nations recognizes that the dignity of all beings men and women, boys and girls should be upheld. Protecting LGBT people from violence and discrimination does not require the creation of a new set of LGBT-specific rights, nor does it require the establishment of new international human rights standards. For all the heat and complexity of the political debate about LGBT equality at the United Nations, from a legal perspective the issue is straightforward. The obligations that States have to protect LGBT persons from violations of their human rights are already well established and are binding on all United Nations member states.
In recent years, many States have made a determined effort to strengthen human rights protection in each of these areas. An array of new laws has been adopted – including laws banning discrimination, penalizing homophobic hate crimes, granting recognition of same-sex relationships and making it easier for transgender individuals to obtain official documents that respect their preferred gender. There is no doubt that the rights guaranteed by sexual orientation and gender identity in international treaties and conventions are limited. In spite of this, debate about rights inclusion for LGBTI individuals is growing and has been successful in particular regions. Undoubtedly much work remains to be done to encourage the passage of stronger national legislation, but positive steps are already being taken in countries like Nepal and South Africa, which may set a precedent for other countries to follow. One of the basic indicators about the status of the SGM community is the protection of their rights under national law.
Within South Asia some progress has been made toward providing stronger legal protection for LGBTI individuals. The Supreme Court of Nepal was the first to state the rights of sexual and gender minorities as equal citizens, and to demand that the government provide legislation giving third gender and homosexual individual’s legal protection. While this is significant progress towards equal rights provision for LGBTI individuals, implementation remains a challenge, particularly in Nepal where unstable political situations make the implementation of law difficult. There is no doubt that all Nepal citizens have equal standing in the eyes of the constitutional provisions of Nepal and rights enshrined by these provisions. It is the obligation of the State to treat all people equally as well as to guarantee all fundamental rights of the people. Nepal has been the State party to various international conventions and treaties after signing and ratifying them and according to section 9 of Nepal Treaties Act, 2047 (1991 AD), the provisions of international treaties and conventions, to which Nepal is a party, should be adopted as national law. ¦us there are fundamental rights guaranteed by the constitution on one hand and the international human rights standards on the other hand, therefore, as a party to such conventions, Nepal is responsible to fulfill the obligations set by such conventions.
Since Nepal is party to all this conventions, Nepal is obliged to adopt non-discriminations among its citizens. Interim Constitution of Nepal states that all citizens shall be equal before the law, provided that there shall not be discrimination among citizens on grounds of religion, race, caste, tribe, gender, origin, language or ideological conviction. Interim Constitution of Nepal 2007 on part 3 and 4 has incorporated the provision of Fundamental Rights (Articles 12 to 32) and Responsibility and Directive Principles and Policies of the State. Being the citizens of this country sexual and gender minorities (SGM) have sufficient rights to claim and exercise all fundamental or human rights incorporated therein. But their rights are still limited in many ways. Easy access to employment, education has been beyond the reach of LGBTI people and positive discrimination for minorities and backwards has not been subjected to LGBTI people. Despite of protection in Constitution and precedent set by Supreme Court, their rights to identity and to live freely without discrimination looks good on papers and plans but still beyond reach of LGBTI community. An ideal society requires an environment where each human individual can exercise his or her freedoms without fear and want. Sexual and gender minorities’ rights are part of human rights and gender justice is integral to social justice.
Sexual and gender minorities is definitely an inevitable complement of human society and a society without the existence of them cannot be imagined. The State has ignored them in many regards and not issuing third gender citizenship is one of the notable State isolation in case of third gender people. The State has not taken any initiative to solve their issues and problem. Despite of the fact that Ministry of Home A§airs has issued circular and amended Citizenship regulation to provide citizenship as others in gender column, LGBTI communities are getting difficulties getting citizenship as others in gender column. ¦is has been one of the major setbacks in the golden LGBTI movement here in Nepal. The writ challenging easy access to citizenship for LGBTI as others is under consideration in Supreme Court of Nepal. This clearly reflects that there is inconsistency in existing laws in countries. In one hand State has recognized them, taken census of them and enrolled them as third gender in voters’ list and even granted a unique citizenship as others in gender column while on other hand many unequal provisions remain which may be considered unfair and discriminatory to LGBTI people.
Rights of sexual and gender minorities are protected in human rights instruments and even some countries have recognized their rights in constitution and decisions of courts protecting their right on non-discrimination and equality ground; yet these people are struggling for tolerance, recognition and rights because their very existence is still rejected or denied and they suffer from social exclusion because of the State and society’s prejudiced attitude towards them. Nepal seems to be very proactive in the issues regarding sexual and gender minorities. But still LGBTI community is facing many problems enjoying rights enshrined in constitution and other international conventions and precedent set by SC, discrimination within family sphere, society and State at large. They are forced to marry with opposite sex and majority of them are not living life of dignity due to absence of same sex marriage law. The ongoing activism which aims at creating an inclusive Nepali State by including the categories of sexual orientation and gender identity in the law and nation development are keeping the struggles of LGBTI community for equality and non-discrimination alive.
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