It's not all rainbows for Nepal's queer community

The Supreme Court of Nepal’s order to register same-sex marriages hides certain inconvenient truths

In early July this year, as digital content creator Parakram SJB Rana readied himself for a night out at a drag show in the heart of downtown Kathmandu, Nepal's vibrant capital, he wore a smile that reflected the optimism coursing through his veins. On the other end of the call with The Established, his voice resonated with palpable contentment stemming from the Supreme Court of Nepal's groundbreaking interim order. This historic directive had set a transformative legal mandate in motion, instructing the government to establish a transitional mechanism that would permit the registration of same-sex and other non-traditional marriages in the country. Notably, Nepal has officially recognised three genders—male, female, and other—effectively granting legal recognition to six distinct types of marriages.

The way forward

While this landmark order signifies a significant stride towards progress for the LGBTQIA+ community in Nepal, a lingering sense of disillusionment shrouds the celebration. Unfortunately, the protracted battle for marriage equality has remained mired in stagnancy for over 15 years within the nation. The Supreme Court issued a similar order in favour of equal rights in 2008, only to witness its implementation languish. Instead of tangible progress, the LGBTQIA+ community finds itself once again grasping for hope in the form of yet another court order, perpetuating a cycle of anticipation and uncertainty.

"We've all been celebrating here because it's a step in the right direction, but we know there's a long way to go before we can actually stake claim to this promise," Rana affirms, his voice laden with hope and apprehension. "Nepal has a long journey ahead before it fully embraces LGBTQIA+ members for who they are. In the past, I've faced online hate on platforms like TikTok and Instagram simply for being queer. I've endured concerted efforts to dismantle my social media presence and menacing threats meant to intimidate me."

A reality check

Rana acknowledges the sobering reality that the impending legal transformation, when eventually ratified, may be subject to misuse by individuals outside the LGBTQIA+ community as a means to seek refuge beyond Nepal's borders. This concern is intertwined with the perception that the country offers limited economic prospects for its queer citizens, further compounding the challenges faced by the community.

Tracing a journey

The struggle for marriage equality in Nepal traces its origins back to the pivotal year of 2007. During this time, a group of LGBTQ activists, under the stewardship of Sunil Babu Pant, a former Nepali lawmaker and a prominent LGBTQIA+ activist in the country, embarked on a quest for equal rights. Their impassioned efforts were, unfortunately, met with disillusionment as they faced the formidable challenge of securing anti-discrimination measures within the framework of a constitution being drafted in the aftermath of a turbulent power struggle.

This period marked a critical juncture in Nepal's history as the nation grappled with the transition from an authoritarian monarchy to a burgeoning democratic order. The protracted tussle for power between the monarchy and pro-democratic organisations had left an indelible imprint on the country's political landscape. Against this backdrop, a significant segment of the LGBTQIA+ community rallied in support of the democratic cause, aligning themselves with the broader republican movement that sought to usher in a new era of governance.

Speaking up

In retrospect, the journey towards LGBTQ rights in Nepal, as recounted by activist Pant, in an interview with The Diplomat began with a disheartening experience. In 2007, Pant's proposals faced an abrupt dismissal, leading him to approach the Supreme Court for redress. As Pant enthusiastically reflects today, the outcome of their 2007 petition can only be described as "fantastic." Not only did it pave the way for the formal recognition of a third gender, but also compelled the Supreme Court to issue a far-reaching mandate to the other branches of government. This mandate demanded the termination of all discriminatory measures against the LGBTQIA+ community and the formation of a committee that explored the feasibility of legalising non-traditional marriages in Nepal.

How is queerness viewed?

However, things in the past 15 years unfolded with hopeful beginnings and frustrating stagnation. As Pant succinctly states in the interview, "The committee was formed, and its members even embarked on a fact-finding mission to Norway to gain insights into the lives of same-sex married couples. In 2015, the committee submitted its comprehensive report to the government, unequivocally recommending the implementation of full marriage equality. Yet, since that pivotal moment, both the government and the parliament have remained eerily silent."

Despite the recent landmark verdict by the Supreme Court, Pant diplomatically characterises the positions of various parliamentary groups as displaying "lazy support" for the LGBTQIA+ community. He underscores that while none of the political parties openly oppose marriage equality, the subject is often suppressed, owing to the formidable challenge that non-traditional unions pose to the deeply ingrained Nepalese patriarchy.

Over the last two decades, Nepal has witnessed a shifting landscape, with other marginalised groups, most notably women, gaining prominence and recognition. This dynamic further complicates the discourse surrounding LGBTQ rights, as it navigates the delicate interplay of social progress, cultural norms, and the enduring influence of patriarchal structures in Nepalese society.

Opposing views

Rukshana Kapali, an impassioned transgender woman activist from Nepal, has emerged as a prominent figure on the frontlines of a multifaceted struggle. Her activism is a testament to her unwavering commitment to the causes she holds dear, particularly in LGBTQIA+ rights. Simultaneously, she has taken up the mantle in a heritage conservation movement deeply rooted in the indigenous Newa community of the Kathmandu Valley (her community), which seeks to preserve their unique culture and language—presently facing existential threats.

Kapali's perspective on legislative matters is profoundly informed by her lived experiences and ardent advocacy. She raises a crucial point, deeming the existing legislation as trans-exclusionary. "It's imperative to broaden the legal framework to encompass not just the binary concept of gender but also acknowledge the existence of the third gender—a distinct identity that is not contingent upon the process of transitioning. This nuanced perspective underscores the need for legal recognition and protection for individuals whose identities transcend the traditional male-female binary, thereby embracing the rich diversity of human experience within the LGBTQIA+ spectrum," she says. 

Kapali's activism is a compelling reminder of the myriad challenges faced by marginalised communities in Nepal and their determination to secure their rightful place within society. Her dual commitment to both the LGBTQIA+ movement and heritage conservation exemplifies the power of grassroots advocacy in preserving culture, fostering inclusivity, and reshaping the discourse surrounding human rights and identity.

The others

The recognition of gender identity is the cornerstone of a broader, more profound journey towards affirming and legally safeguarding one's identity. In the context of Nepal, transgender individuals encounter multifaceted violations that permeate every aspect of their lives, says Kapali. Astonishingly, the current legislative landscape offers little concrete protection to shield trans persons from the relentless and discriminatory treatment they endure solely due to their gender identity. 

"Nepal continues to enjoy a reputation as a transgender-friendly country, at least from a legal standpoint, as it purportedly recognises and secures all rights for transgender individuals," she says. However, this veneer of legal progressiveness masks a stark reality: a pressing need for a comprehensive overhaul of the legal framework and the language that informs it. This overhaul is essential to address the profound and enduring inequalities faced by the transgender and the broader PoMSOGIESC (People of Marginalized Sexual Orientations, Gender Identities, and Expressions, and Sex Characteristics) community in Nepal today.

The prevailing legal gaps and shortcomings highlight the urgent need for legislative reform as well as the ongoing struggles of transgender individuals and the broader LGBTQIA+ community in their quest for full acceptance, equal rights, and social justice. "Nepal has an opportunity to uphold its reputation as a trailblazing nation, but so far, it has failed to embody these principles in practice," says Kapali.

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