London, 16 January 2008
On 21 December 2007 the Supreme Court of Nepal issued directive orders to the Government of Nepal to end discrimination against people of different sexual orientation or gender identity. The Equal Rights Trust considers the decision of the court - who use the term “teshro Linga” literally translated as “third gender” and commonly understood to represent lesbian, gay, bisexual, transsexual and inter-sexed persons – to be a progressive step in recognising the equal rights for those with different sexual orientations and gender identities. The decision is a significant victory for the lobbying efforts of the Blue Diamond Society, a local non-governmental organisation supporting people with different sexual orientation or gender identity.
The Court directive orders the Nepal government to ensure the same rights to people of different sexual orientation or gender identity as to other citizens. In respect to same sex marriage, the Court issued a further directive order for the establishment of a seven member committee to conduct an international and comparative study on practices in other countries regarding same sex marriages. The committee recommendations should be the basis of a governmental legislation on this issue.
The Supreme Court judgment represents the culmination of an eight month campaign by the Blue Diamond Society and other civil society groups for the equal rights of people of different sexual orientation or gender identity under Nepalese law.
The directive requires the Nepal government to end an abhorrent system of de jure discrimination which – on the basis of constitutional and other legal provisions being anchored to traditional male and female identity norms – prevented individuals who did not conform to these norms from obtaining basic citizenship rights. In effect, Nepalese law excluded people of different sexual orientation or gender identity from many areas of public life and from the enjoyment of public services, including education. People of different sexual orientation or gender identity could not hold public office, while those in civil service were subjected to degrading treatment.
The case leading up to the issuing of the directive orders was initiated on 18 April 2007 by petition filed by the Blue Diamond Society in the Supreme Court seeking non-discrimination provisions for people of different sexual orientation or gender identity, the nullification of discriminatory laws and the introduction of protective legislation.
Although the pattern of discrimination on grounds of sexual orientation and gender identity has not been comprehensively documented, the Blue Diamond Society has extensively reported the violence suffered by Metis (transgendered males) from law enforcement officers. For Metis, the provisions of the Interim Constitution and the failure to cover sexual orientation and gender identity under Article 13 meant a continuing violation of their right to equality. For example, Nepal’s citizenship card regulations have denied Metis basic civil rights on the basis of non-conformity to a male or female category.
On 21 November 2007, in a hearing before Justice Bala Ram KC and Justice Pavan Kumar Oiha, counsel for the Blue Diamond Society set out before the Court a corpus of international and comparative law supporting the equal rights of people of different sexual orientation or gender identity and the prohibition of discrimination on grounds of sexual orientation within international and national jurisdictions. Amongst the supporting materials counsel submitted the recently formulated Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity and other authorities on international law as well as the US Supreme court decision in Lawrence v Texas.
The judgment handed down on 21 of December 2007 noted the important influence of international law – particularly Article 2, 16 and 17 of the International Covenant on Civil and Political Rights – in concluding that a state should provide the right to one’s own identity. Significantly, the courts dicta emphasised the importance of the term “dignity” within Article 12(1) of the Interim Constitution, which it submitted should be interpreted in a manner consistent with the realisation of equal rights for people of different sexual orientation or gender identity and not in a manner which frustrates this goal.
The Equal Rights Trust welcomes the judgment of the Supreme Court in this case. ERT appeals to legislative and judicial authorities in Nepal to follow on this path leading towards a comprehensive, progressive and effective anti-discrimination law ensuring the right to equality and non-discrimination for all people in Nepal.