Sujan Panta/Pahichan – In 2015 When the U.S. Supreme Court legalized same-sex marriage; it was well-received and widely celebrated. Among the Nepalese people, solidarity with the Americans could be seen in several Social Medias suggesting that there is an evident growing awareness and support among the Nepalese LGBTI. Facebook one of the most popular social media among the Nepalese introduced celebrating pride features allowing people to make their profile picture collaborated with rainbow flag the flag that symbolically represents LGBTI. There were thousands of Nepalese facebook user making their profile pictures rainbow a clear indication that Nepalese are well aware and well known about LGBTI and they stand with LGBTI people a gigantic showing of solidarity.

Undoubtedly LGBTI issue is one of the most discussed issues of this era. Where there has been growing trends of showing solidarity to LGBTI people across the globe going on this issue has been one of the most discussed issue among the youth of this generation so far. In this era of globalization where whole world appears as global village thanks to the internet technology LGBTI issue has been for now a well known well recognized issue as such. Nepal is not far from away from that. Nepal in much way has marked itself as one of the most LGBTI friendly nation in the worlds legally socially and in many ways.

LGBTI movement in Nepal

Way back in 2001 when small group of LGBT youth lead By Sunil Babu Pant come out in Kathmandu for the first time openly society heard something about LGBTI formally. The event got colossal media coverage. That was something that was happening for the first time and curiosity was as obvious. Within few days of this event a writ was filed in Supreme Court quoting the Medias reports and news and stating that these unnatural people are being organized which should be stopped. Supreme Court of Nepal being very proactive from Panchayat era however did not entertained the writ and was denied filing ab initio and was finally quashed on the ground of being baseless. That paved way for the birth of Blue Diamond Society making history of being the first LGBTI organization in Nepal. Though initially due to stigmas and other social factors no one other then Sunil Babu Pant could open their identity the organization seeded up with Sunil and his family members being in the boards that was compulsion and also mandatory for registration of any organization. Only handful numbers of the community members could drop in and meet.

Difficult few years of LGBTI movement but the scenario get changed when Supreme Court of Nepal in its one of the landmark decision deciding on petition filed by Sunil Pant recognized LGBTI people as citizens of Nepal identified all sexual and gender minorities people as “natural persons” and also accepting that lesbian, gay, bisexual, transsexual and inter-sex or LGBTIs are not male or female in terms of sex, or masculine or feminine in terms of gender yet they are natural persons. The law shall be considered as discriminatory which does not allow the people to enjoy their fundamental rights and freedoms with their own identity.SC ordered the government of Nepal to reform any legislation referring exclusively to men and women and not LGBTI and finally 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. The Supreme Court of Nepal thus showed bigger eagerness to understand the developments in international law and jurisprudence in protecting the rights of LGBTI people and even develop on international law to suit the Nepali context.

That was one of the biggest achievements for LGBTI people here in Nepal thus paved way for marvelous golden days for LGBTI people then after. In same year first citizenship as third gender was issued by Chief District Officer of Kaski. A history was made in many ways we can say.

Never been colonized  Nepal has been relatively better off in terms of religious sanctions against homosexuality it is an agrarian, traditional Hindu society, with distinct Buddhist influences, Nepal has a rich history of same sex relationships, depicted in folklore, mythologies, and carved in temple walls, pointing towards a history of permissiveness and tolerance towards issues of sexuality and sexual expression. Where countries like India and other south Asian counterparts  still possess British Sodomy Law that criminalizes homosexuality as a crime we should feel proud that we never ever has such laws here in Nepal an another positive facet for LGBTI movements in Nepal to be proud of.

Nepal went through various political changes in last few decades and popular Peoples Movement of 2063 that established Nepal as Republic country dethroning centuries long Kingship. The very next year a historic Constituent assembly was formed where Nepal went on making another history by electing Sunil Babu Pant as CA member making him the first openly gay Parliamentarian from entire Asia. Because of his efforts as Member of Parliament others Parliamentarian were able to orient and sensitized that somehow paved way to Legal Constitutional recognition of LGBTI in Nepal.

When Ministry of home Affairs issued circular and amended Citizenship regulation to provide citizenships as others in Gender column for LGBTI people in 2012 that probably made Nepal first country in the world creating separate legal documents as other for LGBTI. Following years Ministry of Foreign Affairs followed same as Ministry of Home thus amended passport regulation allowing LGBTI to acquire Machine readable Passport mentioning others in Gender column as ‘o’. Thus Monika Sahi became first Trans gender to received MRP as ‘o’ mentioned in the gender column. Probably Nepal is first country in the world doing so. Other governmental and non-governmental entities have started to include a third gender category as well. Nowadays adding gender column as other in Nepal is not new as we can find this addition in all government non government and others private companies form as well. 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.

Constitutional guarantee

South Africa was the first country in the world that constitutionally guaranteed LGBTI people. In Asia Nepal made yet another history when sexual and gender minorities were included in constitution under fundamental rights making Nepal only country in Asia recognizing LGBTI people constitutionally. Referencing the constitution, article 18 “right to equality,” Nepal as a country has recognized the existence of sexual minorities and is considered too be progressive, in comparison to many other countries, in terms of having laws to protect the group from discrimination. Furthermore, according to article 12, every person has the right to obtain a citizenship certificate according to their gender identity and Nepal has officially recognized and given space for gender minorities by providing a third citizenship identity specified as “Other”. And under article 42 Right to social justice: right to employment in state structures on the basis of the principle of inclusion has been guaranteed for LGBTI.

Status of same sex marriage

The Netherlands was the first country to legalize same-sex marriage and the decision was made

Over fifteen years ago. At first shocking to the world, their decision was a milestone and gave hope to the LGBT community around the world with several countries to follow the example. Since then, same-sex marriage has become a normalized topic and the legalization has not been questioned. Currently with Germany being latest country to recognize same sex marriage there are 25 countries that legally recognizes same sex marriage. However, the social stigma against the LGBT community still exists emphasizing the fact that the community is being discriminated constantly and every effort that could lead to an equal treatment of citizens must be done.

Its well accepted fact that same sex couples should be treated no differently than their heterosexual counterparts and that they should be able to marry like anyone else upholding the principle of nondiscrimination and equal treatment. there are very   reasons behind the recognition for marriage the basic rights and privileges like forming a family, adopting a child, partition of property, health, pensions and many other benefits.

Despite of all these golden movements in LGBTI rights Nepal yet to recognize same sex marriage noted that fact that same sex marriage committee has submitted its reports to government recommending legalizing same sex marriage. Placing Nepal on the same list would confirm the country as one of the most progressive in LGBTI-rights and would make Nepal stand out among other countries in Asia, including the most developed ones. Recognizing same-sex marriage would not only benefit the sexual and gender minorities of Nepal, but also improve the image of the country as a whole and make Nepal an important role model. Because of Nepal’s change in constitution to include sexual and gender minorities and the recognition of a third gender in official documents, Nepal has already started being more progressive than many other countries. Hence, recognizing same-sex marriage would be a very fitting, and logical, move on the government’s part and legalizing same-sex marriage would significantly improve the well-being of the sexual and gender minorities in Nepal undoubtly.

In sum

So LGBTI movement in Nepal is youth lead youth inspired successful activism. Nepal a tolerant country has never recorded hate crimes as such against LGBTI people. There are minimal numbers of recorded case of Human Rights Violations and big public figures, celebrities; political leaders have started to show solidarity. Many celebrities’ has started to come out that they are LGBTI. These all shows that acceptance level is very high and Nepal is undoubtly a LGBTI paradise legally and socially. All left is legalization of same sex marriage which sooner or later is going to be happening for sure. A truly a rainbow nation in Asia to feel pride of.

(The author is a lawyer and holds LL.M in international law. Has been working for LGBTI rights for more then seven years. Author often writes on LGBTI issues and has been one of the lawyers strongly advocating for legalization of same sex marriage in Nepal.)

The edited version of this article can be found on this edition of Wave Magazine.