Nepalese Civil and Criminal Law under the prism of LGBTI community
Alexandra Geraki/Kathmandu (Pahichan) July 4 – In Nepal the fight for equal rights for the LGBTI community has a long history. In 2007 a Supreme Court case_ filed by the Blue Diamond Society ordered the government to stop discrimination against LGBTI members and decided in favor of some fundamental LGBTI rights, such as the recognition of the third gender and the same-sex marriage. After this decision, many legal amendments and amending procedures have been conducted in order to make Nepalese Legislation more just towards LGBTI community.
The new constitution of 2015 was formed taking into account the Yogyakarta Principles, the international human right standards on sexual orientation and gender identity, and explicitly protects LGBTI members against discrimination, violence and abuse_. In the constitution’s Fundamental Rights chapter, the term “gender and sexual minority” is mentioned in article 18 (right to equality) and in article 42 (social justice)_. By prohibiting discrimination and promoting equality, the new constitution calls for amendments in every law that restricts LGBTI rights, especially in civil and criminal law.
Within Nepalese Civil Law there are two main issues that concern the LGBTI community’s rights, the recognition of the third gender and the legalization of the same sex marriage. The third gender was officially recognized in 2011, when a third legal category –with the name of “other”- was incorporated in official documents for those who did not self-identified with either male or female gender, following the Supreme Court’s case of 2007. In 2015, the first passport with “Other” gender was issued, making the first international paper issued by Nepal that is not limited to the gender binary. However, due to internal prejudice, in some instances Nepalese bureaucracy severely limits the implementation of the new law by putting unnecessary obstacles in the procedure of self-identifying as “Other” in official papers_. Also, the procedure of changing the name stated in a citizenship is extremely complicated, making it almost impossible for adult people, who have already taken the citizenship, to change their name in accordance with their stated gender. The third gender was also included in household listing census in 2011, but it was omitted in the detail section of the same year. The issue of the same sex marriage has not been resolved yet in Nepal. Although same-sex marriage is not explicitly prohibited by the civil law, in its definition in Draft Civil Code 2068 it is stated that “parties to marriage must be respectively male and female as determined at birth sex”, excluding same-sex marriage or marriage to a transgender. The procedure of legalizing the same sex marriage has begun in 2007 with the same case that ordered Nepalese Government to form a same-sex marriage committee that would make a recommendation to the government. This committee has indeed been formed and has filed the legal proposal to the Prime Minister, but the government has not initiated any procedures to present a new legislation to the Parliament. According to Mr. Tek Tamata (Justice and Human Rights, UNDP), internal prejudice prevents the members of the Government to propose this legislation, rendering the legalization of same-sex marriage uncertain.
In Nepalese Criminal Law two main issues that concern the LGBTI community’s rights arise, the criminalization of homosexual activities and the Rape Law. Although there is no clause in Nepalese Penal Conde that criminalizes homosexual activities, there is a clause prohibiting “unnatural intercourse”, which raises questions as to whether it can be implemented to criminalize sodomy. The primary goal of this clause is to prohibit bestiality, but the broad definition of the intercourse’s nature does not exclude its implementation on homosexual activities. However, this clause is not currently interpreted as criminalizing sodomy, nor it is used that way by Nepalese authorities, according to Mr. Tek Tamata. However, its problematic definition calls for an amendment, which is currently being processed, as stated by Mr. Basudev Bajagain (Human Rights Officer, NHRC). The Nepalese Rape Laws were recently amended, based on the report of a special committee formed in 2012_. The amendment broadens the definition of rape as “minor penile penetration of the vagine” and includes “penile penetration of orifices”, criminalizing in that way homosexual rape and protecting homosexual males and transgender victims. This decision showed that Criminal Law is concerned with LGBTI issues and that the era of ignoring the violence and discrimination towards them is coming to an end.
Nepalese LGBTI community’s rights are legally restricted mainly by Civil Law, as LGBTI individuals do not have the right to marry or adopt children. However, their rights are even more severely restricted by Nepalese social prejudice, which determines the function of bureaucratic procedures regarding gender self-identification and Government Members’ stance towards same-sex marriage. Nepalese Law lays ahead of Nepalese Society in terms of LGBTI individuals’ acceptance, as Mr. Basudev Bajagain pointed out. The conservative social values affect the legal amendments as well as their implementation, constituting an obstacle for the transition towards a society without LGBTI discrimination. The perception of people in core positions, such as the Members of Government or the bureaucratic officials, plays a major role regarding the adaptation of Civil and Criminal Law to the new Constitution, which is in some cases hindered.
It is, thus, now clear in my mind that the first and most important step towards the realization of a fair society involves the social sensitization of Nepal: the education, cultivation and familiarization of Nepalese society in terms of LGBTI issues. Social values are more persistent and rigid than legislations and they require more time and effort in order to change; however, until society constitutes a fertile ground for legal changes, their implementation will stumble in every step.
Alexandra Is a Lawyer