KATHMANDU, JUNE 23
Despite progressive constitutional and legal advancements, the National Penal (Code) Act, 2017 is not inclusive of all the individuals based on Sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC). In particular, it has no legislation for the protection of the LGBTIQ+ community against rape.
For instance, section 219 of the National Penal (Code) Act limits rape to an act imposed by 'men' on 'women' or 'girls,' specifying men as perpetrators and 'women' and 'girls' as victims. The act should include the terms that are inclusive of all SOGIESC.
Lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) still struggle to access legal protection, legal gender recognition and marriage equality along with battling various stigmas and forms of violence. The national survey by UN WOMEN revealed that four in five respondents from LGBTIQ+ communities had experienced at least one form of violence in their lifetime. The survey has also argued that there is a pervasive pattern of violence among LGB- TIQ+ people in Nepal.
The survey encompassed various forms of violence, including physical, emotional, sexual and economic violence. The result of the survey has indicated that a substantial majority of the LGBTIQ+ respondents (81 per cent) reported being a victim-survivor of at least one instance of violence based on s during their lifetime. It has revealed that out of 1,181 respondents, 71 per cent reported experiencing emotional violence, 46 per cent reported physical violence, 46 per cent reported sexual violence and 40 per cent reported economic violence.
Nepal has seen significant progress in LGBTIQ+ rights over the past two decades, making the country the 'global LGBTIQ+ rights beacon.' The Constitution of Nepal promulgated in 2015 recognises the rights of LGBTIQ+ people and explicitly prohibits discrimination on grounds of sexual orientation and gender identity. It also guarantees the right to privacy, freedom of expression and the right to live with dignity - all of which are critical for the protection of LGB- TIQ+ rights. Despite these legislation protections, LG- BTIQ+ people in Nepal continue to face significant barriers to experience these rights in practice. LGBTIQ+ people also face significant barriers in accessing healthcare and education.
"We are deprived of exercising our fundamental freedoms enshrined in the constitution due to discriminatory laws and poor implementation by the authority," said Manisha Dhakal, executive director of Blue Diamond Society.
"Rape law and other forms of sexual violence against LGBTIQ+ people must be criminalised. The right to marriage, right to obtain citizenship with identity, and effective and appropriate police response to violence against LGBTIQ+ people must be ensured," Dhakal said.
"I called the police for help, but their response was extremely negative. They told me, 'Who told you to go there? We only have a duty to help normal people and we have no responsibility towards those who are 'chhakka' or 'hijada','" said Rose Magar, a transwoman.
Talking to THT, advocate Dinesh Tripathi said, "There is a gap between the verdict of the apex court and the implementation of its verdict on the ground level." He further said, "The rape law in the National Penal Code needs to be amended. It also requires amending the definition of rape in section 219 (C) to include all forms of penetration in any orifice or any part of the body. Furthermore, all the laws, policies and mechanisms intended to address violence, including the Domestic Violence Act, 2009, the Human Trafficking and Transportation Act, 2007 and the Crime Victim Protection Act, 2018 should be amended to incorporate LGBTIQ+ inclusive provisions."
A version of this article appears in the print on June 24, 2023, of The Himalayan Times.
