(Note: Summary based on translation published in National Judicial Academy Law Journal, 2 NJA Law Journal 2008, pp. 261-286.)
Procedural Posture
In April 2007, the Blue Diamond Society, MITINI Nepal, Cruse AIDS Nepal, and Parichaya Nepal, all organizations representing lesbians, gays, and “people of the third gender”, filed a writ petition under Article 107(2) of the Interim Constitution of Nepal seeking recognition of transgender individuals as a third gender, a law prohibiting discrimination on the basis of sexual orientation and gender identity, and reparations by the State to victims of State violence and discrimination.
Facts
Under Nepal’s citizenship card system, all adult citizens with citizenship cards were given access to certain benefits, such as ration cards, passports, and residency cards. Officials frequently denied citizenship cards to individuals who wished to register as a third gender rather than as male or female. In addition, although not used to prohibit same-sex sexual relationships, Nepal’s Criminal Code criminalised “unnatural sexual intercourse”. People of the third gender (metis) frequently faced police violence and harassment because of their gender expression.
Issue
Whether LGBTI people were entitled to the full range of constitutional and international human rights.
Domestic Law
Interim Constitution of Nepal, 2063 [2007 AD]
Article 12 (guaranteeing the right to freedom, including the right to live with dignity and the right not to be deprived of personal liberty except in accordance with the law).
Article 13 (guaranteeing equal protection under the law and prohibiting discrimination on grounds of religion, sex, race, caste, tribe, origin, language or ideological conviction).
Article 32 (providing the right to file a petition before the Supreme Court under its extraordinary jurisdiction for the enforcement of fundamental rights).
Article 107 (conferring jurisdiction on the Supreme Court to review legislation as well as enforce constitutional rights; conferring locus standi on groups or associations in matters involving enforcement of fundamental rights).
Comparative Law
Constitution of Fiji.
Constitution of South Africa.
Corbett v. Corbett (Otherwise Ashley), Probate, Divorce and Admiralty Division, United Kingdom, 1970 (holding that sex was biologically fixed at birth and could not be changed by medical or surgical means).
Lawrence v. Texas, United States Supreme Court, 2003 (affirming that same-sex sexual conduct between consenting adults was part of the liberty protected by the substantive due process clause of the 14th Amendment to the federal Constitution and striking down Texas’ sodomy law).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (finding unconstitutional statutory and common law offences of sodomy).
SP Gupta and others v. President of India, Supreme Court of India, 1981 (clarifying the concept of public interest litigation and explaining the need for liberal standing doctrine in case of disadvantaged classes).
International Law
Convention on Elimination of all Forms of Discrimination against Women.
Convention on the Rights of the Child.
International Covenant on Civil and Political Rights.
International Covenant on Economic, Social and Cultural Rights.
International Convention on Elimination of All Forms of Racial Discrimination.
Universal Declaration of Human Rights.
Goodwin v. United Kingdom, ECtHR, 2002; I v. United Kingdom, ECtHR, 2002 (holding that classifying post-operative transgender persons according to their pre-operative sex violated Articles 8 and 12 of the European Convention).
Van Kück v. Germany, ECtHR, 2003 (finding that law requiring individual to prove medical necessity of sex reassignment surgery in order to be entitled to reimbursement violated Article 8 of the European Convention).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (finding that the sodomy laws of Tasmania violated the rights to privacy and non-discrimination under the ICCPR).
Reasoning of the Court
The Government of Nepal argued that the writ petition should be dismissed. According to the Government, it was based on hypotheses and assumptions and gave no specific examples. Anyone treated in a discriminatory manner or who had been the victim of violence had recourse to courts to enforce their rights. The Court should not make a separate law for people based on their sexual orientation and gender identity: the rights of the petitioners could be protected under the existing legal framework. The Interim Constitution already guaranteed the petitioners the right to be free from discrimination.
The petitioners argued that international instruments as well as the decisions of other national courts protected people, including those of the third gender, against discrimination on grounds of sexual orientation. People of the third gender (homosexual, transgender, and intersex people) had not been treated equally. It was the responsibility of the State to provide identity documents, including birth certificates, citizenship certificates, passports and voter identity cards, specifying sex in accordance with the identity of “gender minorities”. Without identity cards, people of the third gender were deprived of education and other public benefits and were dishonored and disrespected.
The Court considered the following questions:
- Whether the writ petition regarding the rights of homosexuals and people of the third gender, considered as minorities on the basis of gender identity or sexual orientation, fell under the category of public interest litigation.
- Whether homosexuals and people of the third gender were so naturally or because of some mental perversion.
- Whether the State had acted in a discriminatory manner with respect to the petitioners.
- Whether the order sought by the petitioners should be issued.
First, the Court found that the writ petition fell within the category of public interest litigation because it concerned a matter of social justice. It was a “constitutional duty and responsibility of the state to make the deprived and socially backward classes and communities” able to enjoy their rights as others did. Protection of the rights of disadvantaged groups fell within the realm of public interest litigation; the Court had previously widened locus standi under its extraordinary jurisdiction in cases of public interest litigation.
The Court next considered the origin of non-conforming sexual orientations and gender identities. It used the Yogyakarta Principles to define sexual orientation and gender identity and defined the terms lesbian, gay, bisexual, transsexual, homosexual, transgender, and intersexuality. The Court concluded that sexual orientation was a natural process rather than the result of “mental perversion” or “emotional and psychological disorder”. It rejected the notion that people of the third sex were “sexual perverts”. As for the question of whether the State had discriminated against citizens whose sexual orientation was homosexual and whose gender identity was transgender, the Court found that the petitioners and the people they represented did indeed face violence, stigmatization, and discrimination. It based this finding on the Yogyakarta Principles and reports of the Special Procedures of the UN Human Rights Council.
The Court addressed same-sex marriage, mentioning that Nepalese law criminalised same-sex marriage as “unnatural coitus”. The Court observed that it was an appropriate time to think about “decriminalizing and de-stigmatizing same-sex marriage by amending the definition” of unnatural coitus.
The Court reviewed the equality principles of Article 26 of the ICCPR and Article 13 of the Constitution. It noted that non-discrimination on the basis of sex was a fundamental right of every citizen. The Court then held that the fundamental rights of the Interim Constitution were enforceable rights guaranteed to all citizens of Nepal. These were rights: “vested in the third gender people as human beings. The homosexuals and third gender people are also human beings as other men and women are, and they are the citizens of this country as well.” The Court forbade discrimination on the ground of sexual orientation.
Regarding sexual activity, the Court relied on the right to privacy. It stated:
The right to privacy is a fundamental right of an individual. The issue of sexual activity falls under the definition of privacy. No one has the right to question how two adults perform sexual intercourse and whether this intercourse is natural or unnatural.
An individual’s choice of sexual partner thus fell within the right to self-determination. The Court concluded that the rights of homosexuals and people of the third gender were not protected under Nepali law. Although same-sex sexual conduct was not specifically criminalised, the State had contributed to discrimination and social prejudice. Medical science had already proven that “this is a natural behaviour rather than a psychiatric problem”. In the face of scientific evidence, old beliefs should be abandoned. Furthermore, the Court stated, the “fundamental rights of an individual should not be restricted on any grounds such as religion, culture, customs, values and the like”.
Since LGBTI people were “natural persons”, they could not be excluded from the full enjoyment of rights under international law and the Constitution. The Court emphasised that it was “the responsibility of the state to create an appropriate environment and make legal provisions accordingly for the enjoyment of such rights”.
The Court ordered the Government of Nepal to make the necessary arrangements, including making new laws or amending existing laws, to ensure that people of different gender identities and sexual orientations could enjoy their rights without discrimination. The Court further ordered that the new Constitution adopted by the Constituent Assembly should guarantee non-discrimination on the ground of gender identity and sexual orientation. Finally, the Court directed the Government to form a committee to study issues related to same-sex marriage.
Postscript
As a result of this decision, new citizenship cards have a separate column for the third sex. In November 2008, the Supreme Court directed the Government of Nepal to draft laws recognizing same-sex marriage.
Sunil Babu Pant and Others v. Nepal Government and Others, Supreme Court of Nepal (full text of judgment, PDF)
