Amar Bahadur Shah/Pahichan -Sex is s biological difference between male and female which is fixed and unchangeable, where as gender is socially created roles that corresponds as for sex is assigned to perform their duties. Nowadays, nature is challenged on the perspective of human right, shows it is not correct to follow above fact because this notion of gender excludes third possibility of gender i.e. transgender.
Human beings who do not fit in this binary definition of gender, who are discriminated and in the mean time respected because of moral, cultural and religious beliefs and practices. It is assumption as well as belief that men and women are sexually attracted to each other in kindness of opposite sex. But in modern environment, there are so many men and women who are non-heterosexual, and we named them as third gender, bisexual and homosexual. ‘All human beings are born free and equal in dignity and rights’ is the unique aspect which is legally interpreted in national and international legal world.
In Nepal, this group exists as a minority who by birth has behaviors, style, movements and sexual desires that are considered unconventional by the norms and values of present society. Still there is complain found by the members of community in regard for the denials of the rights to life, freedom from torture, and security of the person, discriminatory access for economic, social and cultural rights such as health, housing, education and the right to work, from non-recognition of personal and family relationships to pervasive interferences with personal dignity, suppression of diverse sexual identities, attempts to impose heterosexual norms, and pressure to remain silent and invisible. The lack of state policing for sexual orientation remains a major force behind continuing gender-based violence and gender inequality activities.
There are some countries that have recognized their rights in constitution and decisions of courts protecting their right on non discrimination and equality ground whereas some are rejecting or denying, which lead for them to suffer from social exclusion because of the state and society’s prejudiced attitude towards them. Sexual and gender minority people do not fit into the modern standard categories and often found acting outside the social norms and values of majority working class. Their biological and psychological phenomenon is quite complex and difficult to understand by outsiders. Whatever, these behaviors’ and preferences poses no threat to others in the society. That is true Transgender peoples are treated as if they are suffering from mental disorder. These groups are marginalized and are forced to remain in veil, where the entire population feel constantly stressed and abused. If any individual member of this community reports a complaint to the police regarding harassment, people treat it as a joke; no serious considerations or investigations are made at the issues. Recent research has found that sexual minorities are unable to get appropriate support from the law against those who commit crimes against them. This is due to the discrimination against and stigmatization of what is perceived as anomalous acts and behaviors of sexual relationship with the same sex which is presumed unnatural by society as a whole. To my knowledge, two genders of male and female are accepted but then why do we neglect or diminish the combination of two in one gender? This complex biological and psychological phenomenon is quite complex, and difficult for us to understand. There is no need to continue any prejudices and misconceptions; even if we do not understand these behaviors and preferences, they pose no threat to anyone.
Earlier, these groups of people were listed as human with mental disorders but, World Health Organization proved that it’s natural phenomenon having separate emotional affection and sexual attraction, intimate and sexual relations with individuals of a different gender or the same gender or more than one gender. These are facts which maintain them to be different from other men and women. In Nepal, a transgender or third gender person is also called as ‘Metis’, where physical appearance could be biologically of male but possesses the gender identity of female. Their existence can be found at various part of the world, with different names 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, and ‘Kothis’, ‘Kinnar’ and ‘Hijras’ in India to identify third gender. Talking seriously about right to equality in The Interim Constitution of Nepal 2063, have stated 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’ but it is found successful only in text not in practical implementation. This minority population relies mostly on the foreign assistance. This raises the question of why our government and system are not addressing the problems of sexual and gender minorities. Why is this group victimized by our society and government in matters of legal and political representation? The society should accept these people’s preferences as a matter of individual choice and respect their fundamental rights of dignified life; I personally think we should adopt the motto “live and let live.”
In the recent period, the world is dominated by United Nations, as most of the nations are members and have to respect and follow various UN Conventions on human rights law which mostly rest on two fundamental principles i.e., equality and non-discrimination. At the different UN intergovernmental meetings, it had confirmed its political attention not to enact discriminatory laws and practices and incorporate the words “sexual orientation” and “gender identity” to express in formal for the people of third gender. It is mandatory obligation for the states to incorporate the spirit of international human rights law at the national level through legislative and other measures to address and cope with issues and problems of these minority groups. But we can find evidences, of violence and discrimination directed at these people in all regions just because of their sexual orientation and gender identity, such as: discrimination in employment, health care and education, criminalization of their activities, physical attacks and even killings. Beside this police harassment and abuse is also commonly found. They arrest and imprisonment them on grounds of their sexual orientation and same sex couples. In most of the governmental offices, officers do not follow the directive principle issued by Supreme Court of Nepal, they change their gender on official documents where these minority group lack their gender identity which is against the norm of human rights.
There is some pleased information to these minority citizens, there are some nations such as: Netherland, South Africa, Belgium, Canada, Spain, US state of California, Sweden, Norway, Portugal, Iceland, Argentina, Denmark, England, Wales, New Zealand, Brazil and France where same sex marriage permissible and documented in their laws. In the political history, it is listed Elio Di Rupo, as first open gay male head of government who became Prime Minister of Belgium and in Nepal Sunil Babu Panta as first gay Constituent Assembly member. It shows that if this group is provided with opportunity they can do best for the development of nation and law, which we can be least hopeful with present corrupt politicians. Nepal has a rich history of same sex relationships, illustrated in folklore, tradition, and carved in temple walls, pointing towards a history of open-mindedness and tolerance towards issues of sexuality and sexual expression. In spite of this supportive history and tradition, modern society in Nepal has found it difficult to embrace sexual diversity and has often reacted with violence and abuse. Why and Who do not believe that ‘Human rights truly are the birth right of all human beings?’, and it is long-established fact naturally, religiously, socially, economically, politically, culturally and humanly, there is no further evidence require to establish that these minorities with identity of third gender are human beings.