KATHMANDU, JULY 28

The Supreme Court has ruled that a person should be allowed to change his/her gender on grounds of self-realisation different from the sex assigned to the person at birth.

A division bench of Chief Justice Bishowambhar Prasad Shrestha and Kumar Chudal delivered the landmark verdict in response to a writ petition filed by Rukshana Kapali, 27, against the government on November 6, 2023, the full text of which was released by the top court today.

The top court also said that the right to live with dignity also signifies one's right to live with the gender identity he/she feels other than the gender assigned at birth. The court said that not allowing transmen and transwomen to identify their gender on grounds of their self-relisation would violate Article 16 which guarantees people's fundamental right to live with dignity.

The court also ruled that Section 8a (3) of Nepal Citizenship Act allowed one to obtain Nepali citizenship with gender identity. The SC also said that Tribhuvan University's decision to refuse registration of Rukshana Kapali on the basis that her identity documents had not been amended to confirm her female identity violated her rights relating to education as guaranteed by the constitution and international human rights instruments.

Previously, Tribhuvan University and Pokhara University did not give Kapali a registration number for her Bachelor of Arts exams because her gender and name did not match on her School Leaving Certificate (SLC) and Higher Secondary +2 certificates. She was denied the opportunity to take exams and have her certificates changed.

Stating that the constitution and prevailing laws allow people to have their personal details protected, the top court ordered the concerned authorities to protect the gender related identities of Rukshana that were maintained earlier without revealing her previous gender identity. The court ordered the concerned authorities not to give details relating to petitioner Rukshana Kapali's previous gender identity to anybody without the court order and the written consent of the petitioner.

The court said denying anybody right to education leads to violation of other rights, including right to live with dignity, right to employment, and the right to health.

The petitioner stated in his petition that she was denied admission, abused, harassed, and mistreated for seeking to live as a transwoman.

When asked to comment on the verdict, Kapali said, 'I am very glad and happy that this verdict has finally put an end to the discrimination and stigmatisation I faced everywhere I went,' Rukshana told THT. 'My life is going to be easy from now on. I hope the situation I faced at the university will not remain the same after this verdict.'

She further added, 'I read each and every word of the verdict from top to bottom. Its uniqueness is that it has recognised the transgender word. This is the first Supreme Court verdict that has clarified all aspects, such as right to privacy and other fundamental freedoms, and I hope this ruling is going to positively impact other verdicts.'

She hopes that the verdict would be implemented immediately.

Executive Director of Mayako Pahichan Nepal, Sunil Babu Pant who is also a former MP, congratulated Kapali on the landmark verdict but said it was an evolving issue that demanded more discussions towards the complexity, confusions and conflicts that could surface while implementing this verdict.

'The verdict is in her favour. She tried very hard, Congratulations to her,' Pant told THT.

The Executive Director of Forum for Women, Law and Development, Sabin Shrestha, said that it was part of the Supreme Court recent verdicts that aimed to protect the rights of sexual and gender minorities. Shrestha said that the verdict not only allowed the petitioner to change her identity documents, including her passport, but also her academic certificates. He said many transmen or transwomen who were unable to assume the gender on grounds of their self-relisation would now be able to change their gender and it was thus a historic judgement for sexual and gender minorities.