Understanding the Fundamental Constitutional Rights of LGBTI People around the world in the Context of Nepal

Sujan Panta /Pahichan – In recent times, recognizing LGBTI people’s right constitutionally is speeding up. Even in the draft prepared by Fundamental Rights committee of the then first constituent assembly of Nepal had recommended including sexual orientation and gender identity as basis of equality. Unfortunately the then Constituent Assembly did not issue new constitution.

As the preamble of the draft constitution of Nepal reads ending discrimination on religious, gender and caste, the country is on the verge of recognizing sexual orientation and gender identity,. There are clear indications that country will fully recognize the commitments arising from International Human rights laws and more eager to recognized rights of sexual and gender identity in Nepal. One of the significant moves is on Article 14 of the proposed draft which states the citizenship on the basis of gender identity. Nepal is already the first country in the world to issue citizenship on the basis of sexual orientation and gender identity: issuing citizenships as others in the gender column of citizenship certificate for LGBTI people.

The purposed draft constituted incorporated various provisions of fundamental rights protecting LGBTI people in Nepal. This is a very positive move.Article 23 states should not discriminate and contains a positive discrimination provision. There is clearly mentioned about sexual and gender minorities as categories not to be discriminated and has guaranteed positive discrimination. It should be noted that the supreme court of Nepal had already issued directives ordering the Nepal government to make any laws discriminating LGBTI people and repeal laws that are discriminatory to sexual and gender minorities back in 2007 and directing laws being enacted permitting same gender marriage rights Article 47 included sexual and gender minorities in social security schemes.This current draft appears to be positive to sexual and gender minorities. These rights need to be incorporated in new constitution and further there are certain provisions where sexual orientation and gender identity can be included which could shape constitution more inclusive.

Protections against discrimination based on sexual orientation have also been integrated into national law in many countries. Strikingly, four countries in four different regions of the world-—Ecuador, Fiji, Portugal, and South Africa—-include sexual orientation in their Constitutions as a status protected from discrimination. Below are the constitution of different countries which have guaranteed sexual orientation and often gender identity.

The Interim Constitution of Nepal 2063

Talking about right to equality in Article 13 Interim Constitution of Nepal 2063 states 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 not being practically implemented.

Though no such words as sexual orientation and gender identity incorporated in Interim constitution of Nepal but it completely discards discrimination on grounds of gender and accepts universal applicability of human beings born free and equal.

The Constitution of the republic of South Africa 1997

South Africa is the first country in the world to mention sexual orientation in Constitution. In 1996, South Africa’s Constitution became the first in the world expressly to prohibit discrimination based on sexual orientation. Article 9 of the Constitution prohibits indirect or direct discrimination “against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.”

The constitution vows in its preamble to “heal the divisions of the past” and to “lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.”  Its drafters clearly saw the obligation to combat all forms of inequality as an inheritance of a history of unequal treatment.

Under Chapter two Bill of Rights South Africa has incorporated on Article 9 the right to equality before the law and freedom from discrimination. Prohibited grounds of discrimination include race, gender, sex, pregnancymarital statusethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth on article 9(3).Thus discrimination on the ground of sexual orientation has been constitutionally prohibited under South African Constitution.

The Promotion of Equality and Prevention of Unfair Discrimination Act (2000), commonly called the “Equality Act,” implements the anti-discrimination provisions of the Constitution.  It commits the government to “promote equality” on all the grounds protected in the constitution’s Equality Clause. Barring discrimination in all spheres of state activity, it also implements the Constitutional ban on discrimination by private actors.

The Constitution of Portugal (Amendment in 2004)

The Constitution of Portugal amended in 2004 has incorporated sexual orientation as ground of equality on PART I Fundamental rights and duties TITLE I General principles Article 13 Right to Equality.So Sexual orientation has been incorporated as principle in Portuguese constitution.

The Constitution of Ecuador 1998

The word sexual orientation has been incorporated in constitution of Ecuador and probably first constitution of the world that includes gender identity as well. Further provisions of same sex marriage and recognition of same sex relation is constitutionally guaranteed in Ecuador.

The Constitution of Bolivia 2009

Article14 of the constitution of Bolivia prohibits discrimination based on sex, gender identity, or sexual preference.

(Author is lawyer associated with Blue Diamond Society and currently pursuing master degree in International Laws )