Nepal SC’s order to register same-sex couples is thanks to its own judgment, passed 15 years ago

Nepal SC’s order to register same-sex couples is thanks to its own judgment, passed 15 years ago

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On June 28, the Nepal Supreme Court passed an interim order directing the Office of Prime Minister and Council of Ministers (OPMCM) and other concerned ministries to establish a transitional mechanism to ensure the registration of marriages for non-heterosexual couples, thereby reiterating the right to marry granted to the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community granted by the top court of the country in 2007.

The Nepal Supreme Court directed the government on June 28 to establish a separate interim register of marriages for same-sex and non-heterosexual couples. (File)
The Nepal Supreme Court directed the government on June 28 to establish a separate interim register of marriages for same-sex and non-heterosexual couples. (File)

The court also issued a show cause notice to the government and sought a response within 15 days explaining why its directives issued 15 years ago had not been followed. It directed the government to establish a separate register of marriages till necessary amendments were made to the provisions related to marriage and registered marriages within the existing Civil Code that only permits marriage between a man and a woman.

The latest order emerged after Pinky Gurung, president of Nepal’s flagship LGBTI rights organisation, Blue Diamond Society (BDS), together with eight other applicants filed a petition in the court on June 7. The petition pleaded for the court’s intervention stating that the community could not wait indefinitely for the Parliament to formulate laws that were in accordance with the orders passed by the court.

In 2001, the Supreme Court passed a landmark order granting equal rights, including the right to non-discrimination on the basis of sexual orientation and gender identity, to all members of the queer community. It further directed the government to form a committee to study same-sex marriage from the viewpoint of not only LGBTI persons, but also their families and society at large. In 2015, a committee set up by the Constituent Assembly put out a report recommending same-sex marriage in Nepal. However, the government did not come up with any law permitting this. On the contrary, its Civil and Criminal codes went on to ascribe marriage as existing between the binary genders of man and woman.

The 2007 judgement was the result of a petition filed by BDS founder Sunil Babu Pant as well as three other human rights activists.

We speak to Pant, who was elected to the Nepal Parliament between 2008 and 2012, making him the first openly gay lawmaker in South Asia, to break down the journey of same-sex rights in Nepal:

What does the latest Supreme Court order mean for same- sex couples in Nepal?

Pant: For the sexual and gender minority communities, the June 28 order is huge. It has great value and gives a sense of pride of being a Nepalese citizen. It appears that the Supreme Court is a bit frustrated with the Parliament and the government for not implementing the order they gave 15 years ago. The Court understood well the argument we made that the Parliament cannot take forever to provide the citizens right.

What was the order that the court passed 15 years ago?

Pant: In 2007, when I was heading Blue Diamond Society, a few organisations got together and petitioned the Supreme Court demanding the end of state-sponsored violence against members of the LGBT community, particularly transgender persons. We also asked the court to direct the government to scrap or amend discriminatory laws, recognise the gender identity of transpersons [as well as recognise our rights including] marriage equality. This was the time when Nepal was going through a political turmoil and a state of emergency.

The court gave an amazing order asking it to scrap all the discriminatory laws and policies, recognised that there are more gender identities than man and woman. It also ordered the government to set up a committee to study the feasibility of same-sex marriage in Nepal, and the impact it would have in society. A committee was set up and it was headed by the chief secretary from the Health ministry. It submitted a report in 2015 recommending granting full marriage rights.

The committee didn’t have any member of the LGBT community. It talked to all religious leaders here, members of other marginalised communities, including LGBTI persons, scholars, the professors, ordinary householders, politicians: the whole the range of social actors. And they also visited countries where same-sex marriage was legal.

Were there any detractors at that time to this idea of same-sex marriage?

Pant: Fortunately, not the sort of very strong opposition like we see in India. We have very few right-wing leaders or parties. Probably smaller [in number] than the LGBTI community itself, but unfortunately these kinds of people give the Hindu religion a very conservative image which we are not.

You were talking about discriminatory laws and violence that LGBTI people were facing that compelled you and others to file a petition in 2007. Could you talk a little bit what the community was going through before that, since the time you started Blue Diamond society in 2001.

Pant: 2007 was a turning point for us because we were, you know, going through such turmoil. In 2001, when we registered the Blue Diamond Society, the first LGBTI rights organisation in Nepal, the royal family was massacred and the country became an autocracy. The Parliament was dissolved. In 2003, Emergency was imposed, and security forces descended on the streets. The third gender population faced a lot of violence, both from them as well as the Maoists. Even in Kathmandu, the situation was bad. I would go three or four times a week to bail out transpersons who were detained by security forces under some pretext or the other. It was a special situation created by the state and the security forces had impunity. When you don’t have democracy, this is what happens.

A populist, pro-democracy movement started in 2006, which we joined and this helped us make connections with a few political parties who were quite welcoming of us. After the peace accord was signed in New Delhi, an interim Parliament was created and they sought suggestions on what to include in the Constitution. We asked that LGBTI rights be included in the Constitution, but our suggestions were not even tabled.

That’s when we decided to move the court. Within eight months of our petition, we received a fantastic decision that stated clearly that LGBTI people are “natural”; all persons should have their own gender identity marked into the citizenship ID and passport; discriminatory laws and policies against LGBTI persons should be scrapped; and a committee to study the feasibility of same-sex marriage should be set up.

What was the need for the current petition if you’d already received a judgment, and the committee recommended same-sex marriage?

Pant: In 2015, the Constituent Assembly promulgated a Constitution in which several provisions ensured equality and non-discrimination of gender and sexual minorities. For example, Article 12 talks about citizens being identified based on their gender identities; Article 18 guarantees equality to all citizens before the law. The term “sexual and gender minorities” appears repeatedly in the Constitution. Nepal is one of a handful of countries in the world where LGBTI persons are guaranteed equality, rights, and non-discrimination by its Constitution.

But, in 2017, the Parliament passed a Civil Code and Criminal Code, which together had 21 laws that specifically discriminated against LGBTI persons. For instance, Civil Code Article 67 and 76 defined marriage between men and women, and husband and wife. There are articles that discriminates on ancestral property and adoption. The rape law does not recognise that a male or a third gender can be raped. So that was quite unbelievable for us. By then I had left the Parliament and nobody from this community had been elected. So there was a political vacuum as well. We repeatedly approached the ministries [to amend these Codes] but we were not a priority. We couldn’t ask anyone to fight our fight. So we went back to the Supreme Court.

The court has now ordered the registrar to include same-sex couples. What are the kind of material benefits that this registration will have in their lives?

Pant: The first is the boost this will give to their mental health. Once people have a secure mind, they become more productive, they are healthier and happier. So the economic productivity also becomes better. This will definitely boost the tourism to Nepal too.

It wouldn’t automatically translate, of course, to same-sex couples actually receiving the same benefits and there will need to be more interventions in the court. The Registrar registering marriages will push the government to deal with the legal consequences and make changes. But what it means is that our marriage is now recognised and valid and equal like other heterosexual marriages. Couples can now have joint bank accounts and own properties together the way that heterosexual people do.

Is there enough knowledge and sensitivity and awareness according to you within the administrative units down to the junior-most officer, who is actually the one handing out/receiving the form?

SP: I mean, they have heard [of LGBTQ persons] repeatedly, but it is still very confusing [for many people]. You know, sometimes they think gay men are same as transgender persons. Or, trans men are lesbians. Very many still believe that transgender persons are intersex persons. It’s not a huge problem. Out here, you are either wise or you’re ignorant. And ignorant can always can learn and become wise.

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