The Nepal Supreme Court’s decision to
repeal laws discriminating against lesbians, gays and transgender
people is momentous.
December 2007 brought some glad tidings for the South Asian gay,
lesbian, bisexual and transgender community. In a stunning decision,
the Nepal Supreme Court declared that all discriminatory laws against
LGBTI (lesbian, gay, bisexual, transgender and intersex) people must be
repealed by the government and provision be made for recognition of the
human person as not only male or female but also as third gender in
terms of citizenship rights based on government documents. The icing on
the cake, as it were, was the setting up of a committee by the court to
look into whether same-sex marriage would be appropriate taking into
account South Asian realities.
The decision of the Nepal Supreme Court is momentous (regardless of
whether LGBTI people finally will be allowed to marry in Nepal) because
it is at odds with the way courts have treated LGBTI concerns in the
kindred regions of South Asia.
Afghanistan, Pakistan, Bangladesh, Maldives, Sri Lanka, Bhutan and the
region’s socalled enlightened democracy, India. The only other country
in South Asia where the criminalisation of homosexuality and the denial
of equal rights to LGBTI people has been challenged is India. The
response of the Indian judiciary has been to procrastinate and has so
far failed to take a decisive stand.
In the context of South Asia, the larger significance of the Nepal
Supreme Court’s decision is the articulation of a deeper meaning to the
understanding of democracy. The court, by asserting that LGBTI people
are citizens within the meaning of the nation’s Interim Constitution,
has shown that it is primarily concerned with justice and fairness and
not afraid of the bugbears of ‘tradition’ and ‘values’. The Indian
government’s response to the petition challenging the anti-sodomy law,
Section 377 of the Indian Penal Code, has been to defend the law as
being vital to protect Indian culture from ‘foreign influences’. By
contrast, the Nepal Supreme Court showed greater willingness to
understand the developments in international law and jurisprudence in
protecting the rights of LGBTI people and even develop on international
law to suit the Nepali context.
PERHAPS THE central significance of the decision was the remarkable
insight and sensitivity, which the court demonstrated in extending
protection to the most discriminated section of the Nepali LGBTI
population — the metis (transgender). It is the meti community which
has been at the forefront of LGBTI struggles in Nepal and at the
receiving end of much State and societal violence. The court’s
prescience in articulating the rights of this community through the
notion of the third gender is important in the South Asian region where
the transgender community of hijras, kothis and metis have been at the
bottom of the socio-economic hierarchy. In the context of the West, it
has often been gays and lesbians who have been given protection by the
State through the notion of sexual orientation. By recognising a third
gender, the court has asserted that it will be particularly solicitous
of the rights of these people.
In fact, this message of the court is a contribution from the global
South to the way the LGBTI community will be shaped in the years to
come around the world. We are proud that South Asia has contributed
this very important aspect to the contours of queer struggle.
After decades of being told that lesbian, gay, bisexual and transgender
people are less than human and therefore do not have rights, Nepal has
shown a refreshingly new and enlightened position, one which must be
emulated by other nations in South Asia in general, and India in
particular, which holds itself out to be a beacon of democracy and
progress in the region.
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