Nepal might have made progress when it comes to queer rights but it still has a long way to goAlthough the constitution enshrines equal rights regardless of gender, sexual identity or orientation, same-sex marriage is still not legal.
Niraj and Aashik met on Facebook two years ago and started talking to each other as friends. Slowly, they fell in love and eventually, decided to get married. With the support of their families, the two young men got married in a church a few months ago.
“Our family supports our love and treats us with respect,” said 24-year-old Aashik, who lives with 20-year-old Niraj in Chitwan. “Our families and friends welcomed our union with open arms and heart.”
Aashik and Niraj might have gotten married but in the eyes of the law, their marriage has no legal merit. Despite being hailed as a progressive bastion for LGBTIQ rights in the region, Nepal’s Civil Code still acknowledges marriage as when “a man and a woman accept each other as the husband and wife”.
Nepal does have a number of progressive laws when it comes to queer rights, especially when compared to the rest of South Asia. But for many members of the LGBTIQ community, these laws don’t go far enough and sexual and gender minorities still find it difficult to get equal treatment before the law. Furthermore, these laws have not translated into changes in larger society, which still remains highly conservative.
“The conversation regarding queer rights has not gone beyond the 2007 verdict. We are still treated like third-class citizens,” said Rukshana Kapali, a queer rights activist.
In 2007, following a Supreme Court ruling, the constitution recognised LGBT rights as fundamental human rights, ensured protection for gender and sexual minorities, and legalised homosexuality. This legal recognition paved the way for more laws, including recognition in the most recent 2015 constitution, building Nepal’s image in the international community as a queer-friendly country and leading individuals to even settle here.
But the ground reality is darker. Members of the queer community are still denied equal rights to marriage, property rights, and education. And they continue to face constant harassment and attacks, sometimes even culminating in murder.
One major step forward for LGBTIQ rights to translate on the ground would be to ensure same-sex marriage, say queer rights activists.
In 2015, a committe formed to study ‘same-sex’ marriage submitted a 85-page report to the Prime Minister’s Office recommending the legalisation of same-sex marriage. But that recommendation never translated into law.
“Our laws do not abide by the constitution, which strictly says that no one can be discriminated against on the basis of their gender,” said Sujan Pant, an advocate and assistant professor at Mid-Western University.
According to Bibek Suling Magar, programme officer at the Federation of Sexual and Gender Minorities Nepal, by preventing queer communities from getting legally married, the government is prohibiting them from availing of all other rights that a married couple can exercise. In Nepal, marriage provides rights and benefits for spouses to sell and transfer jointly registered property, open joint bank accounts, and property rights upon the death of the spouse.
Magar says that the government’s failure to acknowledge same-sex marriage paints a larger picture of how queer communities are deprived of many fundamental rights.
Many LGBTIQ individuals still find it difficult to get jobs, leading them to resort to sex work, which comes with both health and safety hazards.
As sex work remains illegal in Nepal, it opens workers up to many more avenues of harassment, especially at the hands of the police, which in turn means that queer community members are reluctant to seek help from the police when they actually need it.
“The situation in Province 2 is really alarming as most of the authorities and police personnel lack understanding and empathy for our community,” said Nagma Khan, queer rights activist at Pahichan Nepal who oversees queer issues in Province 2. “When someone from our community seeks help from the police they are instead questioned and sometimes blamed as well. At government offices, we have to put up with homophobic and transphobic slurs.”
Queer sex workers are often doubly at risk of physical and sexual assault, but Nepal’s rape laws, according to the 2015 Criminal Code, describe rape as a forceful act committed by a man to a woman, failing queer citizens and cisgender male citizens who might suffer rape.
“The rape laws are discriminatory and fail to address the crime perpetrated to the queer community,” said Sujan Pant, an advocate. “Because of this provision, the queer community cannot easily seek legal help if they face problems.”
The LGBTIQ community also suffers from a deeper problem wherein all individuals from across the spectrum are treated as one. Many government officials still consider all members of the LGBTIQ community as “third gender”, as they are the most visible members.
After the Sunil Babu Pant vs Government of Nepal case, the Supreme Court-mandated an ‘other’ gender category in all government documents, leading to the widespread awareness of a ‘third gender’. And as per a 2012 directive by the Home Ministry, the ‘other’ category encompasses those who identify as lesbian, gay, bisexual, transgender, and intersex, regardless of the fact that gender identity and sexual orientation are two different things.
This year, on the occasion of May 17, the International Day against Homophobia, Biphobia, and Transphobia (Queerphobia), rights activist Kapali, along with members of Queer Youth Group, a network of youth activists, will be publishing a demand sheet regarding the legal recognition of gender identity and asking for an elimination of all discriminatory provisions.
“We’ve raised the issue of gender identity in the past too but now, we are doing it in a systematic and organised way through a demand sheet,” said Kapali. “There’s confusion among people about sexual orientation and gender identity. Trans people are compelled to use derogatory gender options like ‘others’, which they may not necessarily identify as.”
The queer movement is multifaceted and the government needs to acknowledge the diversity of its members, say rights activists. That is the only way for the queer movement in Nepal to progress, the government needs to do its part.
“Until the government acknowledges that all are equal in the eyes of the law, and ensures equal legal rights and protection to us, our community will be severely affected, as well as the nation,” said Pinky Gurung, president of Blue Diamond Society, Nepal’s oldest queer rights organisation.