Protect rights of LGBTI people, ICJ tells govt

Kathmandu, December 21

International Commission of Jurists has called on the Government of Nepal to fully implement the court’s ruling on the protection of the rights of lesbian, gay, bisexual, transgender and intersex people.

In 2007, the Supreme Court of Nepal had delivered a judgment directing the government to take necessary measures to ensure that people of diverse gender identities and sexual orientations could fully enjoy their rights without discrimination. However, 10 years after the judgment, LGBTI persons are denied equal protection of the law and their rights are still not fully protected.

“The SC’s 2007 judgment gave hope to LGBTI people in Nepal and inspired judiciaries in the region and the world,” said Frederick Rawski, ICJ’s Asia director. “Despite some positive measures, the government has much more work to do to implement the judgment and ensure that the rights of the LGBTI community in Nepal are fully respected.”

The SC based its findings on international human rights law and standards, particularly in respect of the right to non-discrimination and equality and the right to privacy. The court relied in particular on Nepal’s legal obligations under the International Covenant on Civil and Political Rights.

The court strongly rejected arguments that a person’s LGBTI status was the result of ‘emotional and psychological disorders’, and found that the petitioners faced violence, stigmatisation and discrimination because of their sexual orientation or gender identity.

Since then, some steps have been taken. The 2015 Constitution that was ultimately adopted contains provisions guaranteeing the right to equality for all citizens and establishing special provisions for the protection, empowerment and advancement of gender and ‘sexual minorities’. Pursuant to a subsequent Supreme Court ruling, transgender men and women can now change their gender markers to ‘O’ on official documents. However, to use ‘M’ or ‘F’, they still face prohibitive and unclear restrictions. A recently tabled bill would also criminalise unnecessary medical interventions and provide some, though incomplete, protections to intersex children.

Despite these developments, discrimination against LGBTI people remains rampant in the labour market, in schools and in hospitals. LGBTI people are mistreated and sometimes disowned by their families and singled out for physical attack – often beaten, sexually assaulted and subjected to severe physical abuse. Recent revisions to the Civil Code (2017), effective from mid-August 2018, do not recognise equality before the law related to family life, said the ICJ.

“These violations continue in the absence of a state strategy or political will to tackle them,” added Rawski. “The government should prioritise enacting reforms to ensure the protection of the rights of LGBTI persons.” The ICJ also called on the government to fully implement all aspects of the 2007 ruling and subsequent SC rulings affecting LGBTI communities.