When Nepal’s Supreme Court in June directed the government to introduce a third category on passports for people who identify themselves neither as male nor female, it handed yet another unopposed victory to the lesbian, gay, bisexual and transgender (LGBT) rights movement.
The country best known for Mount Everest and Lumbini, the birthplace of Lord Buddha, is fast gaining a reputation as the most gay-friendly nation in Asia as it continues its transition from a Hindu monarchy to a democracy.
LGBT rights first saw the light of the day just days before a parliamentary bill declared Nepal a federal republic, abolishing the Hindu monarchy in December 2007. The Supreme Court at the time called for laws granting equal rights to the LGBT community and for amendments to all laws that are discriminatory. Neither the government nor any social or religious group has challenged the court order to this day.
Heeding the 2007 court directive, the government formed a committee to draft a same-sex marriage bill. None of the three major political parties — the Communist Party of Nepal (Maoist), the left-of-centre Nepali Congress, and the Communist Party of Nepal (Unified Marxist-Leninist) — objected.
While the drafting of the same-sex bill is still not completed, the delay is not due to any conflict. Rather, Nepal’s transition to democracy has been bumpy because of power struggles and ideological disagreements among political parties.
The first Constituent Assembly (CA), which was given the job of promulgating a new constitution, was dissolved last May, after its tenure was extended four times. However, a parliamentary committee that the CA had mandated to propose fundamental rights in the draft constitution included protections for sexual minorities.
Meanwhile, government-run Nepal TV gave Sunil Babu Pant, the petitioner whose case led to the 2007 court order and an openly gay CA member, a prime-time slot for a weekly show called Pahichaan, or Identity, featuring Nepali celebrities who discuss human rights for the LGBT community.
However, there are some bureaucratic issues remaining to be resolved, said Pant, who heads the LGBT rights group the Blue Diamond Society.
Although the third category in passports was called for in the 2007 judgement, the foreign ministry said its machine-readable passport software did not support the third gender category.
“Hence we took the case to the court and we won,” said Pant, calling it “a huge victory”. “Now the third gender will be able to travel as who they are.”
Manjushree Thapa, the author of Forget Kathmandu, attributes the success of the LGBT movement to dedicated activists, in particular Pant and the others who work with the Blue Diamond Society.
“They have stayed focused on this basic civil rights struggle during a time when the state has been in free fall, and generally unresponsive to the aspirations of the Nepali citizenry,” she said.
Yubaraj Ghimire, a leading columnist in Nepal, said the acceptance of LGBT rights in one of the world’s poorest countries also reflects the large presence of donors and international NGOs, lobbying and the resultant awareness, unlike in other countries in Asia.
“Nepalese society appears indifferent, as it does not affect the rights of other people,” he added.
It’s not that the majority in Nepal is in favour of homosexuality, but whatever little opposition there is has not resulted in action for reasons unique to Nepal.
“Nepal is a land of minorities, and it’s easy for minorities to understand and support each other,” said Pant. “All political parties support LGBT rights, and the media are also very supportive.”
Pant added that sexual minorities were “lucky” that they had managed to educate society, political parties and the government about their rights, in time.
Kanak Mani Dixit, the editor of Kathmandu-based Himal South Asia magazine, said Nepal was “a relatively open society”. He agreed with Pant that the LGBT community was fortunate in terms of starting its activism at the right time, explaining that it had been “a time of chaotic political transition when social conservatives find it hard to organise”.
Deepak Adhikari, a Kathmandu-based journalist, said LGBT people were being accepted because this is “part of the issue of inclusiveness and mainstreaming the formerly marginalised communities” as the country makes its transition.
“Nepal is strange in that conservative and progressive elements go hand in hand,” he added.
Hindus and Buddhists alike support LGBT rights, Pant went on to say. A deeply religious country, Nepal was the world’s only Hindu kingdom for more than two centuries until recently.
Though it is seen as a tolerant religion, acceptance of sexual minorities is not intrinsic to Hinduism. In neighbouring India, for example, Hindu groups were quick to challenge a court order that decriminalised homosexuality about three years ago.
In Nepal, religious groups traditionally have not had much political space because the Hindu monarchy kept them under control, Pant explained. Besides, tantrism, which came to the country with Vajrayana Buddhism from the Indian state of Bihar, has influenced Hinduism in Nepal. Tantrism is more liberal, as it embraces the world rather than denies it. Many of the tantric Hindu deities are transgender, he added.
Pant also pointed to a popular Hindu belief in Nepal that marriage does not end with the death of a spouse, but lasts for seven subsequent births. “Is there a guarantee that one’s spouse will be born in the same gender in the subsequent births?” he asked rhetorically.
However, some Hindu leaders have asked that gay marriage be distinguished from conventional marriage, which involves traditional rituals meant only for marriage between a man and woman, by calling the former “gandarbha (love) marriage.”
While Muslim and Christian tenets clearly do not approve of homosexuality, these religious minorities feel insecure about their own rights in Nepal, and therefore cannot afford to protest against LGBT rights, Pant said. About 4% of Nepal’s population of 26 million people is Muslim, and Christians are only about 1.5%.
As the democratic culture grows in Nepal, the LGBT movement might face greater opposition in the coming years. But its supporters and activists are leaving no stone unturned in pressing for the implementation of the 2007 court order before that happens.
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Writer: Vishal Arora