Marriage equality in Nepal: A long walk to freedom despite recent fillip by the Supreme Court

Nepal has been a pioneer in South Asia when it comes to recognising the rights of gender and sexual minorities, with the country's Supreme Court leading from the front in this direction. However, a slow-moving executive and anachronistic social prejudice have ensured that the full realisation of legal and constitutional rights is denied to the LGBTQI+ community. 

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NEPAL'S gender and sexual minorities have a right to love, but not a right to marry.

The Himalayan country has been a beacon of hope for the rights of lesbian, gay, bisexual, transgender, queer and intersex (more commonly referred to as the LGBTQI+) community in South Asia. It was the first South Asian country to give legal recognition to the third gender in 2007. Since then, it has progressively realised and enhanced the rights of gender and sexual minorities.

Last month, a division Bench of the Supreme Court of Nepal, comprising Justices Nepal Hari Prasad Phuyal and Tanka Bahadur Moktan, recognised marriage equality in Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration. The court has asked Nepal's Ministry of Law and Justice to prepare an equal marriage law or amend existing laws to accommodate the principles of equal marriage.

The court's consistent accommodation of rights of gender and sexual minorities through judicial pronouncements is indeed significant, especially in a region where all other countries except India continue to criminalise homosexuality. However, this progress is still mired in legal uncertainty pertaining to the grant of legislative recognition to marriage equality. There has been a consistent demand for such laws by gender and sexual minorities since 2007, and the government has not expressly opposed these demands.

Also read: Petitions on recognition of marriage equality to be heard by five-judge bench

What are the facts of the case?

The case concerned petitioners Adhip Pokharel (a Nepali citizen) and Tobias Volz (a German citizen), a gay couple that filed a writ of mandamus before the Supreme Court of Nepal against the Department of Immigration (DoI) for denying a non-tourist visa to Volz on the grounds that marriage equality is not recognised in the country.

The petitioners got married as per German law on October 19, 2018, and registered their marriage in Germany. However, when they came to Nepal, Volz's non-tourist visa was rejected by the DoI.

When Pokharel contacted the local government to obtain a marriage certificate, the authorities rejected his application, stating that the law only allows marriage between a male and a female.

Volz again applied for the visa, referring to Suman Panta versus Ministry of Home Affairs, DoI & Ors. (2017), a the significant judgment of Nepal Supreme Court.

Suman Panta concerned an American citizen, Leslie Luin Melnik, who married Suman Panta, a citizen of Nepal, in December of 2015 as per the laws of the United States. (This was the same year in which the United States Supreme Court recognised the fundamental right to marry for same-sex couples as per the United States' Constitution in Obergefell versus Hodges). Melnik then applied for a non-tourist visa as a dependent of Panta under Rule 8(1)(h) of Nepal's Immigration Rules, 1994, as per which a foreigner who has matrimonial relations with a Nepalese national and submits a certificate of registration of marriage can obtain a non-tourist visa in Nepal

Melnik's application was denied on the grounds that Nepali law does not recognise marriage equality.

Panta and Melnik approached the Supreme Court of Nepal against the DoI. The court's division Bench of Justices Ananda Mohan Bhattarai and Tank Bahadur Moktan held that a foreign national who submits a valid marriage certificate establishing a marriage with a Nepali citizen is eligible to obtain a non-tourist visa as a dependent. The Immigration Rules, the Bench pointed out, do not necessitate a foreign national applying for a non-tourist visa to be either of the same or opposite gender in order to be eligible for it.

However, even after relying on this precedent, Volz's application was rejected again. Consequently, both him and Pokharel approached the Supreme Court of Nepal under Article 133(2) of the Constitution of Nepal for the enforcement of their fundamental rights.

Also read: Supreme Court issues notice on petition by gay couple seeking registration of their marriage

What has the court ordered?

On March 20, the Supreme Court of Nepal issued a mandamus against the DoI for not issuing a non-tourist visa to Volz. It held that the equality and equal protection clause of the Nepalese Constitution ensures equal rights to everyone, including sexual and gender minorities.

The court criticised DoI for turning a blind eye to the grievances of the petitioners. It pointed out that the Constitution of Nepal recognises and acknowledges the identity of gender and sexual minorities, and includes their rights within the framework of the human rights of non-discrimination.

It also noted that its judgment issued six years ago in Suman Panta, which required the government to create new laws or amend existing laws to ensure equal rights for sexual and gender minorities, had not been implemented yet.

The Bench called out the DoI for using the binary terms 'male' and 'female' in their visa application form, which do not offer members of gender minorities their preferred choice. The court went on to say that the term "third gender" did not encompass all categories of sexual and gender minorities. Therefore, "sexual and gender minorities" was the appropriate term to use instead.

The court ordered the DoI to amend Entry 11 of Schedule 2 of the Immigration Rules, 1994, which describes the process for obtaining a non-tourist visa, in order to cover non-heteronormative marriages. It issued the directive order to amend the form accordingly as its current version deprives the petitioners of their identity and adversely affects their dignity, marriage and family life.

The court further noted that many federal Nepalese laws still use binary terminology such as 'male and female', 'husband and wife' and 'sons and daughters', which creates barriers for sexual and gender minorities in terms of accessing other rights, such as that to property.

It also observed that the use of the phrase "unnatural sexual intercourse" in Section 226 (prohibition of unnatural sexual intercourse) of the National Penal Act, 2017 was derogatory towards sexual and gender minorities. Section 226 does not define what unnatural sexual intercourse means, and it may be invoked against these communities. (Although, it has not been invoked against the community yet.)

The court concluded that binary classification of gender in the immigration form cannot be used as a reason to deny a non-tourist visa to members of sexual and gender minorities. It has ordered that all discriminatory provisions of existing legislation must be reconsidered through amendment, including in rape, marriage and inheritance laws.

Also read: A Spectrum of Pride: Recognising Same-Sex Marriage in India

What gains has the LBTQI+ movement secured in Nepal?

The judicial struggle began in 2004 when the Supreme Court of Nepal was asked via a petition if activities, including advocacy, by or on behalf of homosexual and third gender people and other gender and sexual minorities pursued by the Blue Diamond Society, a Nepalese LGBT rights organisation, could be banned. The petition alleged that the group is trying to make homosexual activities legal in Nepal.

The petition was rejected by the court. However, when another similar petition was filed, the Nepalese government responded that it had not framed any law to take action against homosexual persons and that there is no clear legal provision to take action against homosexual persons under the offence of bestiality in the penal code then applicable in Nepal.

Then, in Sunil Babu Pant versus Government of Nepal (2007), the Nepalese Supreme Court gave legal recognition to the third gender.

The judgment was the result of long-drawn advocacy in which Pant— the first openly gay Asian national-level legislator— and the Blue Diamond Society, founded by him, played a crucial role.

In this case, four petitions were filed by the Blue Diamond Society; Mitini Nepal, a women-led non-governmental organisation working on LGBTI+ rights and dignity; Cruise Aids Nepal, a non-government organisation (NGO) working towards preventing HIV/AIDS (acquired immunodeficiency syndrome, caused by the human immunodeficiency virus ); and Parichaya, an NGO working towards gender inclusion.

The petitioners represented more than six thousand people from gender and sexual minorities that were denied equal enjoyment of their constitutional rights and legal status in society, as the laws at that time did not give them any legal recognition and did not allow them to exercise civil rights. The existence of discriminatory laws subjected them to mental torture, they contended.

On the other hand, the affidavit submitted by the Office of the Prime Minister and Council of Ministers of Nepal stated that the rights guaranteed under the Constitution of Nepal and other relevant laws are equally applicable to all citizens. It countered the argument of the petitioner that they are not allowed to exercise their rights, and stated that the petition does not mention how these rights are obstructed.

The government submitted that making a separate law based on gender identity and sexual orientation is not necessary as the rights of gender and sexual minorities can be protected under the existing legal framework.

Interestingly, Justice Phuyal, who was on the Bench that delivered the judgment in Adhip Pokharel, represented the petitioners in Sunil Babu Pant as an advocate. He argued that the State has a mandatory responsibility to protect the human rights of its citizens, and relied on international human rights instruments like the Universal Declaration of Human Rights and the International Covenant for Civil and Political Rights (ICCPR) that guarantee the right to equality, equal protection of the law and non-discriminatory behaviour to all human beings. Nepal is a party to all major international human rights instruments, including the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Further, a reference was made to the landmark decision of the United Nations Human Rights Committee in Toonen versus Australia (1994), wherein it was held that criminalising private consensual sexual activities violates the right to privacy and the right to non-discrimination based on sexual orientation and gender identity.

In Sunil Babu Pant, the Supreme Court of Nepal observed that a matter concerning discrimination and differential treatment is also a matter of social justice and social interest.

The court recognised that traditional norms and values with regard to sex, sexuality and gender identity are gradually changing, and that the concepts of homosexuality and the third gender are not medical conditions that need treatment. The court also noted that medical sciences had evolved to a point where they recognised the categorisation of gender identities and sexual orientation beyond the traditional binary of male and female.

It went on to locate the rights of gender and sexual minorities within the right to privacy under the Interim Constitution of Nepal, 2063 (2007). It said that the issue of sexual activity falls within the definition of privacy, and no one has the right to question whether sexual intercourse between two adults is natural or unnatural.

This judgment's significance is underlined by the fact that it came at a time when homosexuality was a criminal offence in all South Asian countries.

Notably, Pant was a part of the international committee of experts that met in Yogyakarta, Indonesia, and came up with the principles on the application of international human rights law in relation to sexual orientation and gender identity, known as the Yogyakarta Principles. These principles recognise the right to self-determination in terms of gender and sexual identity and the right of all sexual and gender orientations to 'found' a family, among other human rights.

The Supreme Court of India was also inspired by Sunil Babu Pant when its five-judge Constitution Bench decriminalised consensual sex between same-sex adults in Navtej Singh Johar & Ors. versus Union of India (2017).

In fact, the Delhi High Court, which was the first court to decriminalise homosexuality in India in Naz Foundation versus Government of NCT Delhi & Ors. (2009), also referred to the legal jurisprudence laid down by the Supreme Court of Nepal in its judgment.

It is interesting to note that while Sunil Babu Pant gave rights to the third gender, it did not decriminalise homosexuality. It left it to the Parliament to make or amend laws favouring the rights of gender and sexual minorities.

So far, the Supreme Court of Nepal has been consistent when it comes to laying down progressive, liberal jurisprudence on the rights of gender and sexual minorities. This has been matched, to some extent, by the Nepalese government.

In 2011, Nepal became the first country in the world to include the third gender in the national census. In 2015, it started issuing passports to the third gender under the category 'o' (others). Manoj Shah, also known as Monica, was the first transgender to receive a passport under the 'O' category. This happened around the time when the Supreme Court of India also gave legal recognition to the third gender in the National Legal Service Authority versus Union of India (2014).

However, within the community, there is a disagreement on the validity of the 'other' category. According to some members of gender and sexual minorities, LGBTQI+ as an umbrella term refers to distinct gender identities and the same cannot be reductively subsumed under the 'other' category.

In 2012, the division Bench of Justices Kalyan Shrestha and Girish Chandra Lal of the Supreme Court of Nepal, in Premkumari Nepali versus National Women Commission, allowed a habeas corpus petition for a lesbian couple to cohabit on the grounds that the Nepalese Constitution does not prohibit one from spending a life with another person of the same gender identity.

Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar

What are some of the disappointments that the LGBTQI+ movement has dealt with in Nepal?

Interestingly, the Supreme of Nepal in Sunil Babu Pant had also held that the right to marriage is an inherent right of an adult based on their free consent and will. Despite this, Nepal still does not have any law regulating marriage equality or civil unions. This is reflected in the fact that the legal status of the first gay marriage that took place in Nepal in 2011 remains uncertain because of the lack of a legislative framework to recognise it.

An expert committee was formed by the Nepalese government in 2010 as a result of the 2007 judgment to study the feasibility of marriage equality. The committee, headed by former health secretary Laxmi Raj Pathak, in 2015 recommended changing existing laws to allow marriage between same-sex couples. It also asked the government to amend the criminal and civil laws that criminalise 'unnatural sex' and discriminate against gender and sexual minorities.

That is why the gender and sexual minorities community was expecting that the 2015 Constitution of Nepal would address this specific concern. Their hopes were to be dashed, as the government instead promised to bring specific legislation to regulate civil unions and other related rights for them.

In 2014, Narahari Acharya, Nepal's then Minister of Law, Justice, Constituent Assembly, Parliamentary Affairs and Peace and Reconstruction, said that a new Bill would allow marriage equality. Pant, commenting on the news of the new legislation, had said that the community was not consulted before drafting the Bill.

The recommendations of the committee were not adopted nor was the Bill tabled in the Nepal parliament. In fact, in 2020, Nepal's National Human Rights Commission has also underscored the need to amend laws but the government continues to sit on these recommendations.

In 2011, after Sunil Babu Pant, two drafting committees working for the Nepalese Ministry of Law and Justice and Parliamentary Affairs proposed criminalising consensual sex between same-sex adults as "unnatural intercourse".

However, these draft Bills did not make it to the parliament.

The 2015 Constitution of Nepal did afford protection to gender and sexual minorities under Article 18 (right to equality) read with Section 19 (discrimination not to be deemed where special provision is made) of the National Civil Code, 2017. Section 19 allows special provisions to be made by law for the protection, empowerment or development of citizens including "gender and sexual minorities". Article 12 of the Constitution of Nepal allows one to choose their gender identity in citizenship-related documents, whereas Article 42 gives gender and sexual minorities the right to public employment on the basis of the principle of inclusion.

But when it comes to the right relating to marriage, Section 67 of the National Civil Code and Section 4 of the Marriage Registration Act, 2028 (1971) strictly define marriage as a union between a man and a woman who accept each other as husband and wife. The rights of the LGBTQI+ community to adoption and to property are also restricted as the consequence of such gendered statutory terminology.

Also read: How constitutional courts can recognize same-sex marriage [Part II]

What is the social attitude in Nepal towards gender and sexual minorities?

As per Sunil Babu Pant, the Constitution of Nepal does not prohibit members of the LGBTQI+ community from exercising or enjoying their constitutional rights. But there has been a prolonged delay on the part of the government in the effective implementation of the judicial affirmations. This exacerbates the historical prejudice faced by gender and sexual minorities.

It has been widely reported that gender and sexual minorities continue to be harassed and attacked at the hands of police in Nepal. To give just one example, in early February 2019, police arrested four transgender women and charged them under the Nepalese Public Offence Act. As a result, they were detained for 25 days and a heavy fine was imposed on them.

Further, even though the government allowed gender and sexual minorities to get citizenship based on gender identity, applicants face constant bureaucratic hurdles due to lack of social acceptance. An absence of proper documentation deprives them of effective participation in the society and leads to the denial of public facilities such as healthcare services to them.

A 2014 report, Surveying Nepal's Sexual and Gender Minorities: An Inclusive Approach, by the United Nations Development Programme, the Williams Institute, a public policy research institute, and Blue Diamond Society, surveyed 1,200 third gender persons and found that almost one in four respondents reported being denied services or treatment by a hospital or healthcare clinic.

Almost 30 percent of those of the 'third gender assigned male at-birth' group reported denial of healthcare, followed by 15 percent of 'the third gender assigned female birth' group, 7 percent of 'the gay or bisexual' group, and 3 percent of 'the lesbian or gay' group.

Instances of deeply-rooted prejudice and stereotypes, coupled with historical discrimination, can only be dealt with by legislative action. It is not enough to say that the rights of gender and sexual minorities can be accommodated in the present framework.

For now, Nepal continues to go through an impasse created because of the dissonance between the judiciary and the legislature.

(Advocate Ravi Nayak, judicial law clerk of Justice Hari Prasad Phuyal of the Supreme Court of Nepal, contributed in the writing of this piece.)