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The Nepal Supreme Court Judgement
The landmark judgement of the Nepal Supreme Court
has directed the Government of Nepal to give gender and
sexual minorities in Nepal equal rights as any other person
and protect them from violations on the basis of them
being `natural persons'. Below are some excerpts from the
judgement as well as consequences that the judgment has
already had.
The Court has also ordered the government to set up a
committee to look into the issue of same-sex marriage, study
it, and follow the recommendations of the committee.
How did this happen?
Blue Diamond Society, Mitini Nepal, Crusaid and Parichaya
Samaj filed a writ petition with the Supreme Court of Nepal
on April 18, 2007 against the Government of Nepal, Office
of the Prime Minister and Cabinet, Ministry of Law, Justice
and Parliamentary Affairs, and Parliament of Nepal.
They wanted the government to end the violent, degrading
behaviour by State and society on the basis of sexual
orientation and gender identities; to give citizenship ID
reflecting the gender identity of `third gender' people; to
remove discriminatory laws and change the law by involving
sexual and gender minorities to ensure equal rights and
protections for them.
The case was heard three times in eight months and
on December 21, 2007 the Court passed its historic
judgement.
The Court said `Though, lesbian, gay, bisexual, third
gender and inter-sex or LGBTIs are not heterosexual man
and women in terms of sexual orientation and/or gender
identities, they are natural persons. The Articles from 12
to 32 of the Chapter Three of the Interim Constitution of
Nepal has bestowed each Nepali citizen all fundamental
rights. Though they are in minority, by virtue of being
Nepali citizens, to enjoy those rights on their own identity
are the fundamental rights of petitioners…'
It went on to say, `The fundamental rights set forth in
the constitution and the human rights enshrined in the
international human rights treaties in which Nepal is a
party, cannot be interpreted in a way that only heterosexual
men and women can enjoy it just because men and women
genders are mentioned in the constitution. Aside from the
heterosexual men and women, LGBTI are as well natural
persons and therefore LGBTI are entitled for enjoyment
of the rights provided by constitution, law and the
human rights conventions. The State has the obligation to
create such environment and formulate laws in that line;
interpretation cannot be made in such a way that only male
and female can enjoy those rights and being LGBTI they
cannot enjoy the same rights. The right to freedom has
been set forth in the Article12 (2). This Article should be
regarded as right to life. The terms woman and man have
not been included in this Article 12. The freedom provided
in this Article is for everyone. The term person refers to
natural person. As LGBTI also are Nepali natural persons,
they should be allowed to live in Nepali society with dignity
through enjoyment of all freedoms.'
The judgement refers also to relevant articles from the
International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil
and Political Rights (ICCPR) which Nepal is legally bound
to comply with.
The writ petition had also demanded the right to same sex
marriage. The Court took a more cautious view of this
and ordered that a seven member committee be formed to
learn about the practices and jurisprudence that has been
developed in other countries at the regional as well as the
global level.
The Government of Nepal will, after receiving the
recommendations of the committee, take the necessary legal
steps in line with the recommendations of the committee.
The Court also ordered that a copy of the report of the
committee be submitted to the Court.
So, what are the implications of the Supreme
Court's judgement?
Already, there is less violence and discrimination against
LGBTIs in Nepal. More people are open about their sexual
orientation and gender identity, and their self esteem
is improving. More political parties, leaders, and civil
society are openly advocating LGBTI rights and inclusion.
Representation of LGBTI in politics will increase and they
have begun to contest local elections. The UN gender policy
will be revised and third gender people will be included
and treated equally for all UN business.
Passport, visa forms and other forms will be changed to
recognise the third gender. Third gender people will be
allowed to travel with their passport freely. There will be
equal opportunities for jobs and access to public services
for LGBTI. This ruling can be a good example for other
countries in Asia to promote LGBTI rights in their own
countries.
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