Kathmandu : The Supreme Court’s recently released “controversial” mandamus that allows a person to obtain government documents based on their self-declaration regardless of their birth sex, has sparked debate in Nepal.

The 35-page full text verdict dated November 6, 2023 was in favour of the petitioner Ruksana Kapali, a third gender individual, ordering the update of the citizenship, educational certificates and other personal identity certificates to reflect her female identity.

Although the order has opened the door for others to update their government documents to reflect their self-identified gender, it has however raised concerns about possible societal implications.

Joint-attorney Gobind Khanal argued against the ruling, calling for objective evidence for amending gender identity after obtaining citizenship certificate under ‘other’ category. He also warned that the decision could have far-reaching consequences for social norms and customs.

The Supreme Court previously issued an interim order to maintain a female identity on Kapali’s voter ID, which originally listed her as “third gender”. This recent order contradicts an earlier directive allowing individuals to identify as “other” gender based on self-perception.

It also raises questions about the existing provision requiring a Cabinet decision to allow the issuance of citizenship based on changed gender identity with medical proof.

The court’s verdict has raised a concern among the SGM community. SGM activists expressed concern about the court’s recent verdict, arguing that it impacts their constitutional rights. “This verdict can push them into a binary identity of either “woman” or “man”. We do not want to live as just a woman or a man. We want our different identity,” they stated.

They have instead demanded that the identity of SGM individuals should be clearly specified as third gender female, male, intersex women and men when issuing citizenship under “other” category.

11 questions raised by the court’s mandamus

1. How to accommodate transsexual individuals in military and police recruitment based on their gender identity?

2. How to manage hostels and toilets for transsexual individuals?

3. Whether transsexual women are entitled to access women’s reservation quotas in education, civil service, police, military, armed police, political participation, etc?

4. Whether transsexual men are entitled to access men’s reservation quotas in education, civil service, police, military, armed police, political participation, etc?

5. How do transsexual men compete with men in sports and military recruitment training? while it is justifiable for transsexual women to compete only with women?

6. Should transsexual individuals disclose their birth sex when marrying? Court rulings require gender history to be kept confidential. Whether or not one should ask about their birth gender when getting married? Is it possible to get a divorce when there are no children?

7. When transsexual woman, who has not undergone gender reassignment surgery, give birth to a child, are they called mother or father based on their gender identity?

8. When transsexual women, who haven’t undergone gender reassignment surgery, gives birth to a child, are they called father or mother based on their gender identity?

9. Who should take custody of a child born to a transsexual man after he divorces his spouse?

10. Who should take care of a child born to a transsexual woman after she divorces her spouse?

11. Whether transsexual and non-transsexual women should enjoy the same rights?

Apex court’s mandamus sparks debate about gender identity in Nepal