The future of the rights of Nepal’s sexual minorities looks uncertain if the government goes ahead with the draft of the bill to amend the Citizenship Act in its current form.

Provisions in the proposed bill state that people need to present a proof of sex change if they want to change their gender identity on the citizenship card. The current provision allows people to choose ‘male’, ‘female’ or ‘others’ as their sex on government-issued documents. Members of the LGBT community in Nepal say the new provision is wrong and is an unnecessary burden on them which could jeopardise the lives of sexual minorities who are already on the fringes.

“Self-determination is the only thing that should matter when it comes to identifying one’s sexual identity because not everyone can afford or would want to undergo a sex change surgery,” said Pinky Gurung, president of Blue Diamond Society (BDS), which works for LGBT rights in Nepal.

And even when some people would want—and could afford—to go under the knife, some may have health complications that could prevent them from undergoing such a complex procedure. Gurung, for instance, says her thyroid level and high blood pressure wouldn’t allow her to change her sex surgically even if she wanted to.

The Supreme Court’s ruling in 2007, which said citizens were entitled to select their gender identity based on “self determination”, paved the way for people to choose “others” as their sex in government-issued identification cards. Nepal has since been lauded for its efforts to strengthen the rights of sexual minorities and even considered a safe haven for sexual minorities from other South Asian countries.

The court’s most recent decision two years ago reiterated the 2007 ruling. It states that the right to amend one’s citizenship card details needs to be legally secured because it takes people a lot of time to identify and assert their gender identity, during which period they might already have been issued citizenship cards based on their sex assigned at birth.

Forty-year-old Gurung is among the several hundred people, a small fraction of Nepal’s transgender community, who were able to assert their identity to a certain extent because of the 2007 ruling.

Gurung was assigned male at birth but identifies as a woman and prefers to be called Pinky, a name she gave herself in 2003. When she applied for a new copy of her citizenship three years ago, she changed her picture to one that reflects her identity as female, got the check mark on “others” box for sexual identity, but she couldn’t replace the given name to Pinky. Nepal doesn’t have provisions for people to change their names based on whom they choose to identify as. So her official identification papers still have her given male name.

And this is exactly what lawmaker Rajendra Man Shrestha wants to change through amendments to the proposed bill.

Shrestha from the Sanghiya Samajbadi Forum-Nepal is among the handful of lawmakers who have vehemently objected to the new provision which would make things difficult for sexual minorities. He has proposed amendments to the current draft of the bill which would allow people to change their names and sex on the citizenship card depending on how they want to identify themselves as.

“The Supreme Court has repeatedly said people can select their gender identity based on ‘self determination’, and whatever an individual feels comfortable identifying as should be enough,” said Shrestha.  

But there are lawmakers like Prem Suwal who say there is no room for self-determination and medical record is the only way to prove one’s gender. Suwal of Nepal Majdoor Kisan Party is concerned that they could be in a tight spot if people questioned the lawmakers’ decision to let people slot themselves in the gender category—without medical proof—of their choice.

“We can't start assigning people their gender based on what they say; just because they feel a certain way,” said Suwal. “We need science to prove people’s gender, individuals’ claim doesn’t count.”

More than a decade after Nepal recognised “third gender” and assured equal opportunities for sexual minorities, the new clause in the proposed citizenship amendment bill regarding sex change could reverse whatever little Nepal has gained, activists say. The vaguely worded clause in the bill leaves room for authorities to interpret changing one’s sex on paper from “male” to “others” or “female” to “others” as “sex change”. This could complicate things for people who identify differently than what they have been assigned at birth and on their citizenship card.

“What is the proof in such cases, right?” wondered Rukshana Kapali, a transgender woman of Queer Youth Group. She said the clause leaves plenty of room for implementing bodies to interpret it as they see fit. “Some officials might ask you to even strip to prove your sexual identity if you ask to change the details,” said Kapali.