Kathmandu, Nepal – “There‘s still a lot of discrimination out there. I‘ve been arrested and locked down in custody for 16 days because they thought I was a prostitute. I also had to face problems with the staff at Nepalgunj airport as they didn‘t believe I was the same person in my passport,“ said Sipha Choudari, a transgender Nepali, while showing the citizenship card of the man she‘s not.
Last year, Nepal became one of the world’s few countries to officially recognise a third gender in citizenship documents, following a 2007 Supreme Court decision. The small nation wedged between China and India has been providing more rights to gender and sexual minorities ever since.
The legal benchmark established self-determination as the sole criterion to identify one’s gender. But only a handful of people have so far been given a citizenship card with the new identity. Nepalese local and district administrations still request proof to certify one’s gender, while the central government only issues citizenship cards with the third category to new applicants.
“We have challenged district and local governments to the court again so that they don’t put obstacles to this law,” explained Asia’s first openly gay federal-level politician Sunil Babu Pant, who took the Nepalese government to court in 2007. The Supreme Court decision urged the government not only to include a third category in citizenship cards, but also to scrap all discriminatory laws against sexual minorities and to form a committee to study same-sex marriage.
The current civil and criminal code considers 'unnatural sex' illegal.
“The report about same-sex marriage is prepared, but the Ministry of Health is holding it. It only requires political will to submit it to the Council of Ministers and the Parliament,” said lawyer Hari Phuyal, who was involved in the first Nepalese case ruling in favour of a live-in relationship for two lesbians.
A model for the region?
Nepal’s advance towards legal recognition of sexual and gender minorities has been cheered by the international community, becoming a model in the region. However, the current interim government still has to draft an inclusive constitution for more than 100 different ethnic and social minorities.
Semanta Dahal, a prominent lawyer in Kathmandu, described the legal context: “The current civil and criminal code considers ‘unnatural sex’ illegal. And the legal provision – 2007 Supreme Court decision – is only a directive to find those laws that are discriminatory, but it did not declare any law unconstitutional, since there’s no constitution.”
Nevertheless, the Supreme Court decision set a precedent, and the Nepalese electoral commission as well as some banks and trekking agencies begun including anya, or “other”, as the third category in registration forms. Following these steps, Nepal’s 2011 census allowed citizens to choose the third category, but problems with recording details made counting impossible.
The unsuccessful census prevented Nepal from becoming the first country to officially count people self-identifying as a third gender. Budgets often take census data into account, and the absence of those identifying their gender as “other” on the census means that they will likely not benefit from government spending that could help to alleviate the discrimination many face in their daily lives.
Transgender Swastika Lama faces daily difficulties in opening a bank account, getting telephone cards, renting a room or applying for jobs because of physical appearance. “Sexual minorities, especially transgender, aren’t welcomed in any other jobs but prostitution. Everybody discourages you to apply and humiliates you by saying, ‘How did you ever think you can get a job like this?'” said Lama.
The marginalisation can have dire consequences: After the floods in Nepal’s Sunsari district in 2008, residents identifying as metis (male-bodied feminine people) reported discrimination, claiming they didn’t receive food supplies due to their appearance.
For me and many more other people in Nepal, you can't be identified as third gender.
But the 2007 Supreme Court decision has helped to bring sexual and gender minorities into the political spotlight, and many are now holding weekly demonstrations demanding a parliamentary seat of their own.
Political representation of sexual and gender minorities, they believe, would help fight stigmatisation and discrimination in Nepalese society. In 2013, New York-based Human Rights Watch denounced what it called arbitrary arrests and government harassment of the LGBTI (lesbian, gay, bisexual, transgender, intersex) community. The Nepalese Public Offences Act grants almost absolute power to chief district officers, allowing them to jail detainees without due process.
‘There’s no such thing’
Many Nepalis do not see the gender issue as a priority. “For me and many more other people in Nepal, you can’t be identified as third gender,” said Shiva Achariya, a human rights officer at the National Centre for AIDS and STD Control, a part of Nepal’s Ministry of Health. “There’s no such thing, as there’s no harassment. The government is struggling with the constitution, and the LGBTI issues are very insignificant for the government to look after.”
Political decisions in the near future will determine Nepal’s future as a regional model for sexual and gender rights. But Dr Mira Mishra, a professor of gender studies at Tribhuvan University in Kathmandu, highlights the need to change social attitudes as well. “There’s a need of mass awareness campaign. Young people should be the target because young people are relatively open, and want a more humane and just Nepali society.”
Transgender Barsha K C recognises the part his community must play in making the Nepalese society more inclusive. “People don’t understand our situation because of the lack of education, and it’s the duty of our community to make them accept us. I believe we all have to live with pride and respect to others’ feelings and identities.”
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