Marriage provision under new civil code of is unconstitutional
Kathmandu (Pahichan) August 23 – Nepal’s constitution- 2015 guarantees equality, freedom and rights of LGBTI people of Nepal with following articles:
Article 12 (related to citizenship) of the new constitution states that people have the right to have citizenship ID that reflects their gender identity.
Article 18 (Right to Equality) covers rights to equality and states that the State will not ‘discriminate against any citizens based on origin, religion, race, caste, tribe, gender, language or ideological conviction or likely any other status.’
Article 18 also lists ‘Gender and Sexual Minority people’ among disadvantaged groups that are recognized by the constitution.
‘Nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of the interests of socially and culturally disadvantaged women, Dalits, indigenous peoples, tribes, Madhesi, Tharu, Muslim, ethnic minorities, backward classes, minorities, marginalized, farmers, workers, youth, children, senior citizens, gender and sexual minorities, handicapped persons, pregnant persons, disabled or helpless, people of backward regions and economically disadvantaged citizens,’ the new constitution states.
Article 18 also replaces language in the old constitution that references ‘male and female’ and ‘son or daughter’ with gender neutral terminology.
Article 42 (Social Justice) of the new constitution lists ‘gender and sexual minorities,’ among groups that will have right to participate in state mechanisms and public services based on the ‘principle of inclusion.’
However, disappointingly, the newly applied ‘civil code-2017’ not only takes away the constitutional rights but also makes the communities more vulnerable to violence, increases the family and social pressures into heterosexual marriage and forces to lead a life based on ‘a lie’.
Chapter 3 of civil code, part 1, article 67 specifically mentions marriage between ‘a man and a woman’ only. This violates constitution of Nepal and its own previous article 18 which guarantees nondiscrimination on the ground of origin, religion, color, caste, creed, sex, physical status, disability, health status, marital status, pregnancy, economic status, language or geography, faith or other status.
How LGBTIs are double victimized by the marriage provisions and prohibitions set forth by this new civil code?:
1) Article 67 of civil code does not allow two same sex individuals to form a marriage.
2) Article 71 talks about “”no one should marry or help someone to marry with a lie or lies on the followings:
- b) Someone with ambiguous (or no sexual) organ, npaumshak (a derogatory terms often called for LGBTIs, translated as eunuch), or someone proven to be unable to produce a child.
First, article 67 prevents LGBTI from getting into (same sex) marriage, this will isolate LGBTIs from the mainstream further, and the law reinforces hetero-normativity among LGBTIs. The family and social pressure to get into hetero sexual marriage will increase. Many have or will have no choice and are or will be forced into hetero-sexual marriage where they have no choice but hide their sexual and gender indemnity due to prejudice, exclusion and violence. They are or will be living under constant fear of being ‘outed’ and being punished, as per the provision of article 71.b which identifies such marriage ‘a lie’.
The new civil code is a trap for LGBTI as they can’t get form a (same sex) marriage with a person they love. With family pressure if they get into heterosexual marriage they will be punished as ‘a lair’.
Both the newly applied ‘criminal code’ and ‘civil code’ of Nepal generally recognizes LGBTI when the state needs to tax, or hold the citizen responsible or where there is a possibility of violating laws and punishment. But these laws either don’t recognize LGBTIs where LGBTIs can be a victim (of violence or injustices) or getting state benefits, or categorically deny/prohibit LGBTIs from getting rights (like marriage rights) and equality and freedom.
In his maiden address in the Province no. 2 Assembly, Prime Minister KP Oli noted that the constitution or laws can be amended on the basis of its need. This new civil code and criminal code violate constitutional provisions, defy supreme courts several directive orders and are also against the ICCPR and ICESCR, of which Nepal is a party. Nepal parliament and government must change these discriminatory provisions of the civil and criminal codes against LGBTI citizens and allow LGBTIs live as equal citizens of Nepal.
(The following link is the civil code which was approved in 2017 and came into application from earlier this week. This is in a Nepali language)