Nepal’s indecision on same-sex marriage leaves couples in limbo
Kathmandu (Pahichan) May 29 – In December 2015, four months after the United States Supreme Court legalised same-sex marriage, Suman Pant got married to her partner Leslie Melnyk, an American, in the state of California. That same year, in September, Nepal promulgated its new constitution, which protected the rights of the LGBTIQ community. Or at least that’s what the couple was told. But when Suman and Leslie decided to move to Nepal, they had no idea that things would turn out so different.
Pant was misled. Despite being celebrated as one of the most progressive Asian countries when it comes to LGBTIQ rights, political infighting and recurrent bureaucratic inertia have meant that same sex marriage remains in a grey area, where it is not illegal but not legally sanctioned either.
In December 2007, a landmark Supreme Court decision not just acknowledged the rights of sexual minorities, but also directed the government to make necessary arrangements–including making new laws or amending existing ones–to ensure that people of different gender identities and sexual orientations could enjoy their rights without discrimination.
The verdict was a major step in decriminalising other gender identities and sexual orientations. After years of campaigning and advocacy, transgender individuals could now obtain citizenships and passports under the ‘O’, or other, category.
However, the Supreme Court refrained from making a decision on legalising same-sex marriage. The legalisation of same-sex marriage was to be recommended by a committee after carrying out a thorough study and analysis of international human rights instruments, global values and practices, and its impact on the society.
In 2015, a committee formed to study the possibility of legalising same-sex marriage in Nepal submitted an 85-page report to the Prime Minister’s Office. It recommended that the government legalise same-sex marriage.
Today, over a decade after the Supreme Court’s verdict and four years after the committee’s report, same-sex marriage remains unrecognised, putting couples like Pant and Melnyk in limbo, with no decision in sight. Two years ago, the couple visited ministry after ministry to seek help for a spousal visa for Melnyk, before filing a case against the immigration office.
In their petition, the couple said that all they needed was a visa for Melnyk to live in Nepal as Pant’s wife. But due to a lack of laws, they were denied the visa solely because they were a same-sex couple. Seven months after they filed the court case, the couple won, and were able to secure the visa.
Pant and Melnyk’s case is not uncommon among homosexual couples in Nepal.
“I’m really confused why the government has still not legalised same-sex marriage,” says Laxmi Raj Pathak, coordinator of the committee that studied same-sex marriage. “Our report recommended that same-sex marriage be legalised in Nepal and according to the Supreme Court decision, the government needs to make legal provisions after considering the committee’s recommendations.”
Pathak’s report recommends that the state amend its civil and criminal codes in order to provide equal rights when it comes to same-sex marriage. It also concludes that legal language describing marriage be revised from the gender binary–‘male’ and ‘female’–to between ‘person’ to ‘person’.
Last year in August, three years after the committee’s recommendation, a new civil code came into effect, but with none of the anticipated changes. The new law explicitly states that marriage is to be deemed “concluded” if a “man” and a “woman” “accept each other as husband and wife.” The definitive use of gendered words, such as ‘man’, ‘woman’, ‘husband’, and ‘wife’, preclude the possibility of marriage between same sex individuals.
But Pathak says it is a contempt of court to ignore recommendations made by a Supreme Court-sanctioned committee. “The recommendations should have been upheld as high as the court order,” he says.
In Nepal, activists say discourse surrounding the LGBTIQ community has often been limited to the umbrella term ‘third gender.’ A lack of awareness about diversity within the community has meant that many in the government do not understand the difference between gender identity and sexual orientation.
“I am a woman and I am attracted to another woman. I am not confused about my gender but my sexual and romantic feelings are different from the hetero-normative majority,” says Laxmi Ghalan, founder and president of Mitini Nepal, an organisation that works specifically for the rights of lesbians.
The prevalence of this gender binary, along with the visibility of the LGBTIQ community as ‘third gender’, has even led some to ask same-sex couples to change their gender to ‘O’, says Ghalan.
For Ghalan, who has been in a live-in relationship with her partner Meera Bajracharya for 19 years, it is a frustrating battle. Although the law does not criminalise their sexual orientation, it does not legalise their civil partnership.
“The government is confused about our issue,” she says. “The LGBTIQ community has been acknowledged, but we continue to suffer. The whole queer movement seems to be transgender-driven, rather than by each initial in the LGBTIQ acronym.”
But for Pinkey Gurung, president of the Blue Diamond Society, it is not that legislators and bureaucrats misunderstand the LGBTIQ community–they are just regressive. She says the current parliament has been systematically attempting to hamstring all progress made towards LGBTIQ rights.
Furthermore, the Blue Diamond Society, Nepal’s leading LGBTIQ organisation, has been fighting for the entire queer community, not just transgenders, says Gurung.
The lack of awareness among lawmakers, bureaucrats, mediapersons and the general public about the diversity of the queer community has also led many to perceive queer rights as a one-dimensional issue.
In 2017, when a transwoman, Monica Shahi, and a cis-man, Ramesh Nath, registered their marriage at Parashurama municipality of Dadeldhura, many confused it with same-sex marriage–simply because a member of the LGBTIQ community was involved. But Shahi, who was the first person to obtain a citizenship with the ‘O’ gender marker, identifies as a woman. Hence, her marriage with a cis-man fits the criteria of the current legal definition of marriage as exclusively based on the traditional gender binary of male and female.
Pant and Melnyk too say just how blinkered the bureaucracy is when it comes to the LGBTIQ community.
“There were questions about who was the husband and who was the wife, whether we were third gender, and whether I should be applying for a new citizenship with ‘O’ as my gender,” Pant says. “I don’t think our answers about the difference between gender and sexuality were properly understood.”
Stories of stigma
The social stigma surrounding gay, lesbian and bisexual individuals continues to lead many to remain closeted. And even when they come out to their family and friends, they are often ostracised.
Bajracharya, Ghalan’s partner, attempted suicide in 2002 when her family attempted to force her to get married to a man. It was a dark time, says Ghalan, who couldn’t bear her partner losing all hope.
Their families knew of their relationship, but when they decided to elope, Bajracharya’s family filed a case against Ghalan and her father—who was a police officer—for kidnapping and trafficking Bajracharya. This led to her father’s arrest from his hometown in Hetauda.
Although Ghalan’s father had been aware of her sexual orientation, the incident made him bitter. He went to the couple’s apartment, grabbed Ghalan by her hair and beat her so badly that by the time he was done, she had a swollen face and large chunks of hair missing, she recalled in an interview with the Post. He then proceeded to arrest both Ghalan and Bajracharya, handcuffing them and taking them to Hetauda.
But on the way, the couple escaped and went on the run, says Ghalan. The case was only dismissed after Bajracharya testified that she had decided to live with Ghalan on her own.
Now, Ghalan’s family accepts their relationship but Bajracharya’s does not recognise her sexual orientation.
“You grow up with a lot of anxiety when you are gay,” says Diwas Raja KC, a gay filmmaker who has been in a relationship with his partner for 17 years. “I was always prepared for the worst to happen–what if someone comes to punch me?”
KC spent his college years in New York, where he was able to express his sexual orientation, he says. At first, he was hesitant to come out to his parents. He told his sister and eventually his parents. Although they were accepting of his orientation, his mother was worried for him.
“I think she was mostly worried about what it meant for me in the long term–was I going to be all alone?” he says.
Most of the same-sex couples the Post reached out to wanted to share their stories, but asked to remain anonymous, fearing social backlash.
Pant and Melnyk appear to be the exception. Since moving to Nepal, they said they have been quite surprised by society’s tolerance towards their relationship. “We have been open about our relationship with our landlords, and they were very accepting of us,” Pant says.
Even when the couple was pursuing their legal case, Pant says that they did not face much social discrimination. There were times when a lack of understanding from government authorities made things difficult for them, but they believe it was due to ignorance rather than malice.
“We thought that we may have to struggle for social acceptance, but we never really had any problems due to our sexual orientation,” Pant says.
Although people are not outright discriminatory, Pant and Melnyk feel that their relationship makes for an uncomfortable conversation.
“During my taxi rides, I am often asked if I am married, to which I reply that I am indeed married to a Nepali. It is then quickly followed by ‘tapaiko shriman ko naam ke ho?’ (what is your husband’s name?)” says Melnyk, who speaks some Nepali.
“And when I say ‘shriman haina shrimati’ (wife, not husband), most think that I still need to polish my Nepali. Others who understand what I mean swiftly move to another topic.”
Since Pant and Melnyk won their court case, they are legally recognised as a married couple in Nepal, unlike many other same sex couples in the country. In their case, the court had ruled that “under immigration laws, a foreign national who submits a valid marriage certificate establishing marriage with a Nepali citizen is eligible to obtain a NT (non-tourist) Visa as a dependent.” Their marriage was only accredited because they had been married in the United States.
In Nepal, marriage provides a person with certain rights and benefits in relation to their spouse. These include the right to sell and transfer jointly registered property, to be considered one another’s legal agents, share the same income tax bracket, open joint bank accounts, and avail of property rights upon the partner’s death. By denying marriage rights to same sex couples, the government is withholding these rights and benefits, say activists.
This has raised concerns among young homosexual couples, like Roshan and Zeewon, as they are protected by the law in expressing their sexual orientation but aren’t allowed to be legally bound to their partners in matrimony.
Roshan, from Morang, and Zeewon, from Biratnagar, are both in their early 20s and have been in a relationship for the past 15 months.
“We are madly in love with each other and we eventually want to get married. But we’re still young, so we want to wait,” says Zeewon.
They are, however, aware that unlike heterosexual couples, they will have to be a lot more patient–not just in terms of building chemistry, compatibility and respect for each other, but also for the state to respect their right to choose their own life partner.
But there are some within the LGBTIQ community who don’t even believe in the institution of marriage, reflecting diversity within the community. Niranjan Kunwar was 16-years-old when he realised he was gay, but he believes that the gay movement is against mainstream.
“Unlike many other gay couples, some may not subscribe to the idea of marriage, which conforms to the heteronormative society,” says Kunwar. “In a way, being gay is being different to everything.”
Kunwar, however, believes that those who choose to get married should have that right.
“Thinking in a progressive continuum, it would be nice to have same sex marriage legalised,” he says.
The legal dilemma
In the 2007 Supreme Court verdict, the court stated that “it is an inherent right of an adult to have marital relation with another adult with his/her free consent and according to his/her will.”
But the following sentence says: “Same sex marriage should be viewed from the view point of interest and rights of the concerned people as well as that of the society, family and all others.”
Following the verdict, the report by the court-sanctioned committee presented a detailed analysis of national and international practices regarding same-sex marriages–from social recognition to state obligation–to ensure the rights of such individuals.
“It is a detailed research report,” says Pathak. “We talked to the LGBTIQ community, human rights activists, religious leaders, police administration and sociologists regarding the issue and we came to the conclusion that there should be a clear law to defend the rights of the homosexual individuals.
Members of the committee even visited Norway to weigh legal and social aspects after that country’s legalisation of same-sex marriage. According to the report, when Norway legalised same-sex marriage in 1993, the legislation passed by a slim margin. The legal stand, however, was an indication of a broader socio-political change.
Many countries have since moved towards legalisation, with same-sex marriages being performed in over 25 countries, mostly in the West.
On September 6, 2018, the Supreme Court of India also decriminalised homosexuality by declaring Section 377 of the Indian Penal Code unconstitutional. The Indian Penal Code, introduced in 1864, cited sexual interactions between homosexuals as “against the order of nature.”
KC says that for a society to be progressive, the lawmakers need to be progressive. “If we waited for a progressive social structure, we would not have had the 2007 verdict,” he says. “The state enforced equal rights for the queer community and people gradually accepted it, leading to a more progressive society.”
Although her case could be seen as a step forward towards acknowledging same-sex marriage, there is still a long way to go, says Pant. She openly lives with her wife in Kathmandu, but is still careful when she is travelling outside the capital. “Would we outright tell people that we are a couple?” she asks. “Probably not.”
Source : Kathmandu Post