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LGBTIQ: Are they living their life with dignity?

By Ratna Keshari Maharjan on Sat Sep 12 2020

“So long as people face criminalization, bias and violence based on their sexual orientation, gender identity or sex characteristics, we must redouble our efforts to end these violations.”- António Guterres, Secretary-General of United Nations. [1]

LGBTIQ are sexual and gender minorities who are treated across the globe as criminal or untouchable or abnormal, and have been victim of discriminatory provisions depriving them from enjoying their fundamental right to live with dignity. Even people holding master’s degree in social sciences have misconceptions about LGBTIQ such as having sex with same sex partner is western influence, it is nurture behavior, it is a mental disease, providing equal rights to them might promote homosexuality which is against Nepalese culture, criminalizing homosexuality is a good idea, being around LGBTIQ people endangers the wellbeing of children, all LGBTIQ people have HIV/AIDS, being LGBTIQ is a choice or phase etc. and many more.

Who are they?

LGBTIQ, the initialism which stands for Lesbian, Gay, Bisexual, Transgender, Intersex and Queer, generally refers to the people who are attracted to the people of same gender or people with gender identities that differ from the sex assigned to them at birth or people with non-binary identities or people whose sex characteristics do not fit typical definitions of female or male.[2] Terms used for LGBTIQ community in Nepal are mostly derogatory and include hijra, metis, kothis, tas, third gender etc.

Born free and equal in dignity

Constitution of Nepal has guaranteed that everyone has the right to live with dignity as a fundamental right. Similarly, Universal Declaration of Human Rights, 1948 has stated, “All human beings are born free and equal in dignity and rights”. No one can derogate this right. Right to live with dignity, with one’s own identity, is fundamental human right which is of utmost necessity to enjoy other fundamental rights. Also, the right cannot be enjoyed if interference are made in any   access to enjoy other fundamental rights including right to social justice, right to equality and right against discrimination.

Homophobic violence and abuse targeting LGBTIQ occur on a regular basis. Based on their voice, appearance and sexuality, they face tremendous difficulties growing up in our society as they are disregarded and treated as unacceptable by their family, friends and society. Transgender individuals are forced for conversion therapy by their family members which is a violation of their human rights. A majority of LGBTIQ people are compelled to suppress their gender identity and sexual orientation because they fear sexual harassment and verbal harassment, non-acceptance by family and friends, hate speeches, losing job etc. In addition, LGBTIQ people face prejudice when accessing health care, housing, education and employment opportunities.

Hearing a ‘law graduate’ say “LGBTIQ are well recognized in Nepal compared to that in other nations as they have been recognized and shown in movies playing comic roles, what more they need?” shows how the misconception of people have framed LGBTIQ as funny character or character who provides entertainment to our society. Playing comic roles in movies or series is not a bad idea but defining LGBTIQ and limiting their recognition only as entertainer is fallacious. LGBTIQ have equal right to social, cultural and political aspects of life as that of male and female. They have equal right to participate in state mechanism and public services.

People mock them for their appearance. The derogatory term “chakka” is commonly used in friend circles to taunt male displaying feminine nature. Furthermore, social media has become a platform where LGBTIQ are targeted and attacked with demeaning comments and messages.  With all these hatred and discriminatory treatment in the society, can we claim LGBTIQ are enjoying their right to live with dignity in our society?

Pinky Gurung, the chairperson of Blue Diamond Society, in one of her interview said, “Someday we will be able to live a dignified life.”[3] You and I, we are equally responsible for the deprivation of their right to live a dignified life. We must literate ourselves that gender identity is each person’s own experience of gender which may or may not correspond with the sex assigned at birth. Some individuals may identify with a non-binary gender or with no gender at all. Likewise, we have to understand that the sexual orientation of a human beings is not a choice. Sexual orientation is one’s self-identification and a natural process rather than a result of “mental, emotional or psychological disorder”[4] and homosexuality emerges for most in early adolescence with no previous sexual experience.[5]

Born free and equal in rights

Nepal is the world’s first country to include third gender on its federal census[6] and has become the world’s 10th country to specifically protect LGBTIQ people in its constitution.[7] Constitution of Nepal has guaranteed right to equality and social justice which has extended to sexual and gender minorities. Supreme Court of Nepal has pronounced landmark decisions to ensure right to live with dignity of every people with their own identity. The court held that “every person with their own experience/feeling have right to self-determine their identity.”[8] Despite the constitutional provisions and landmark decisions of the Supreme Court for the protection of LGBTIQ rights, discriminatory provisions against LGBTIQ still prevail in Nepal.

Same sex marriage has not yet been legally recognized in Nepal. In Sunil Babu Pant v. Government of Nepal, 2007 the Supreme Court of Nepal has pronounced the verdict to revoke laws discriminating against LGBTI, to legally recognize third gender and has directed to establish a committee to study same sex marriage. The committee was formed and it submitted its report to the parliament. But, the status of the report is unknown. Additionally, in Rajani Shahi v. National Women’s Commission, the Supreme Court has stated, “it is up to the individual to decide whether to live with homosexual or heterosexual either separately or in partnership, with or without solemnizing marriage.”[9] Thus, progressive decisions on the acceptance of same sex marriage and partnership has been pronounced by Supreme Court. However, Civil Code of Nepal which was enacted in 2017 defines marriage as legal bond between male and female only.  Many LGBTIQ couples have got married to each other but their marriage has no legal recognition. The lack of legal recognition of same sex marriage has deprived LGBTIQ people from enjoying their right to marriage, right to have family, adoption right and property rights.

Rape is a heinous crime which may be perpetrated against any person irrespective of their gender. However, the rape provision in Criminal Code 2017 fails to incorporate gender neutrality. The code has defined rape as a crime perpetrated only against female whereas LGBTIQ people have also been a victim of rape.[10] This provision has restrained LGBTIQ people from accessing justice in the situations where they become victim of rape.

Nepal, being one of the most progressive country in Asia in its treatment of LGBTIQ rights and being party to various international human right instruments, has obligation to revoke all these discriminatory provisions against LGBTIQ to ensure their right to live with dignity.  The obligation has to be extended to guarantee civil, political, social, economic and cultural rights of LGBTIQ as equal to that of its cisgender heterosexual community.

Conclusion

International Covenant on Civil and Political Rights, 1966 in its preamble has enshrined that civil and political rights of people are derived from the inherent dignity of human person. The stigmatization, discrimination, hate speech, assaults and attacks on LGBTIQ community have been breaching their right to live with dignity. Despite of their legal recognition and guarantees of fundamental and constitutional rights in Nepal, LGBTIQ people still face physical and verbal abuses from family members, state agencies, private corporations and individuals merely on the basis of their gender identity and sexual orientation. Thus, until and unless LGBTIQ people feel safe and secure to enjoy their right to live with dignity, with one’s own identity we must redouble our efforts to end these violations as said by António Guterres, Secretary-General of United Nations.

 

(Author is a B.A.LL.B. final year law student at Nepal Law Campus.)

 

 

[1] https://www.ohchr.org/Documents/Publications/Born_Free_and_Equal_WEB.pdf

[2] https://www.ohchr.org/EN/Issues/LGBTI/Pages/index.aspx.

[3] https://therisingnepal.org.np/news/23500.

[4]http://www.icj.org/wp-content/uploads/2012/07/Sunil-Babu-Pant-and-Others-v.-Nepal-Government-and-Others-Supreme-Court-of-Nepal.pdf.

[5] https://www.apa.org/topics/lgbt/orientation.

[7] https://www.hrw.org/news/2015/10/14/how-nepals-constitution-got-queered.

[9] http://supremecourt.gov.np/nkp/full_detail/426.