KATHMANDU, JULY 18
On June 28, the apex court legalised same sex marriage with a landmark verdict making Nepal the first South Asian Nation to legalise same sex marriage. However, word play by the courts has hindered social justice to the LGBTIQA+ community.
The SC verdict was a shot in the arm for the LGBTIQA+ community, However, that happiness was short-lived.
On July 13, Kathmandu District Court Justice Madhav Prasad Mainali refused to register the same sex marriage of Maya Gurung and Surendra Pandey, the SC verdict notwithstanding.
Judge Mainali, in outright defiance of the recent SC decision that allowed same sex marriage and other non-traditional heterosexual marriages, refused to register the same sex marriage of Maya Gurung and Surendra Pandey stating that they were not a heterosexual couple.
The LGBTIQA+ community representative called this move of KDC a 'word play'. As it used legal jargon to quash the Supreme Court verdict. "Despite the SC decision, Kathmandu District Court Judge Madhav Prasad Mainali refused to register the marriage by playing with legal words," said Sunil Babu Pant, former lawmaker and founder of Blue Diamond Society.
Similarly, legal experts have been commenting that the legal provisions and terminology regarding LGBTIQA+ need to be amended and redefined. So, the court cannot use them as its shield to prevent LGBTIQA+ from getting social justice.
"Legal hypocrisy regarding LGBTIQA+ began after the Supreme Court coined the word sexual and gender minorities back in 2007. Later, when the home ministry framed the directives for citizenship, it identified these categories as sexual and gender minorities," said advocate Sujan Panta.
He elaborated: "However, when the final draft of the constitution of Nepal 2015 was submitted. The word sexual and gender minorities was replaced with gender and sexual minorities in Article 18.
This legal terminological nuance of lawmakers and legal experts proves that they are not positive towards sexual orientation. They have put the phrase 'gender identity' first and overshadowed the term 'sexual orientation'."
According to him sexual orientation was mentioned in the initial draft of the constitution. But it was replaced when the final draft was promulgated. And only gender identity was mentioned in the constitution.
This clarifies that the lawmakers are more positive towards gender identity and less progressive where sexual orientation is concerned. That explains why they are very progressive about gender identity issues and have plenty of laws related to it.
"Same sex marriage has been in limbo due to their negative approach towards sexual orientation. They are not positive towards the term same sex marriage or marriage between people with the same gender. They have been playing the word game for a long time now," Panta added.
For example, technically, the KDC decision is right because it was not part of the verdict of the Supreme Court. So, the next hearing of the court will be important to clarify this more explicitly.
The verdict of the Supreme Court allows to register the marriage of defendant parties of the writ petitioners and KDC was never a defendant.
Therefore, the right words need to be used to represent them, because there have been so many varieties of LGBTI but now it is LGB- TIQA+. So, this needs to be defined legally by a responsible institution. Till date only the Ministry of Home Affairs has addressed LGBTI issue and there is no official definition. So, the new terminology LGBTIQA+ needs to be legally redefined.
According to him, there are no clear legal definitions apart from the Supreme Court decisions and directives of the home ministry. We need to redefine terms like sexual orientation, gender identity, new terminologies, gender dimensions, gender fluid, queer for social justice.
He further said that the situation shows drastic discrepancy when one compares our acts and laws with those in the West. Western laws and acts are more progressive towards sexual orientation than towards gender identity.
A version of this article appears in the print on July 19, 2023, of The Himalayan Times.
