This article on ‘Nepal’s Supreme Court Orders to Register Same-Sex Marriages’ was written by Priyanka Jaipuria, an intern at Legal Upanishad.
Although these individuals have clearly been a vital part of human society from their inception, debates and deliberations over the conceptions, recognition, and privileges of the “third gender” are comparatively recent phenomena. Despite the fact that the Supreme Court of Nepal issued a ground-breaking ruling in support of homosexual and gender minorities in December 2007, it quickly acquired recognition for proclaiming that all “homosexual and gender minorities” (LGBTI) people had the same fundamental human rights.
Individuals who identify as third-gendered might speak up, stand out, and advocate for parity alongside other genders. The phrase “third gender” is employed in Nepal to refer to natural men who exhibit their gender in a “feminine” way and natural females who do so in a “masculine” way. The phrase “other” (anya), which has been accepted by campaigners and government representatives, will be applied to indicate this group on legal documents. In this paper, the author explores the Supreme Court of Nepal’s ruling on the registration of same-sex marriages.
REASONS LEADING TO GROUNDBREAKING ORDER
According to a landmark Supreme Court decision given in 2001, every member of the gay community now has the same rights, such as the prohibition of prejudice based on their sexuality or gender characteristics. It also directed the authorities to form a commission to look into homosexual marriage from the views of LGBTI people, their loved ones, and the community as a whole.
In 2015, the Constituent Assembly-appointed committee passed a resolution encouraging homosexual marriages in Nepal. However, the government did not pass legislation permitting this. Instead, it proceeded to define marriage in its Civil and Penal laws as happening between the different sexes of man and woman.
In 2006, an extremist, pro-democracy campaign was launched. Later, a petition submitted by the BDS movement’s leader, Sunil Babu Pant, and three additional human rights advocates led to the 2007 ruling.
Eight months after the case was filed, the court issued a precedent-setting ruling that made it quite apparent that LGBTI individuals are “natural” and that everyone should have their gender-specific identification noted on their passport and national ID. A commission should be established to examine the viability of homosexual marriage, and unjust legislation and regulations targeting LGBTI people should be repealed.
The most recent ruling was passed when Pinky Gurung and eight other petitioners lodged a case in court on June 7 in support of the “Blue Diamond Society” (BDS), the leading LGBTI rights movement in Nepal. The community was unwilling to wait eternally for the legislative body to devise legislation that followed the instructions issued by the court, according to the petition, which appealed for the court’s involvement.
FACTS OF THE CASE
The petitioners filed the petition because, despite a court order that allowed homosexual marriages 15 years ago, Nepalese law still prohibits such partnerships.
In May 2023, the newlyweds, who had married in Germany, learned that Nepal had not recognised their marriage.
The petitioners cited Clause-69(1) of the 2017 National Civil Code, which provides that everyone has the right to marry, as well as Clause-18(1) of the 2015 Nepalese Constitution, which states that everyone is treated equally under the law. The litigants have advocated for the official recognition of homosexual marriage.
POSITIVE IMPACT OF THE ORDER
Parallel registry of marriages: By issuing an interim ruling authorising the registration of same-sex marriages, the Supreme Court took affairs into its own domain. The administration has been ordered to create a distinct marriage record up to the time when the present Civil Code, which only enables marriage involving a male and a female, is amended to include the required requirements pertaining to marriage and acknowledged marriages.
Although Nepal’s recognition of the third gender has previously been acknowledged as a beneficial advancement, some favourable results of such recognition include:
- The ability to be recognised as an identifiable individual before the law requires official acknowledgement of one’s sexual orientation.
- The formal recognition of third-gender classification may put a stop to both public and private assault and abuse.
- The benefits of an acknowledged status for human rights are manifold.
The court recently utilised this case to stress that it is against Nepali Law to ignore same-sex weddings, but it failed to instantly authorise such unions. Rather, it gave the administration the go-ahead to act.
Even if the Court has periodically made its intentions known through a number of cases by favouring same-sex weddings or clearly designating third-gender individuals, there is an obvious need to include such provisions in the nation’s legislation.
Nepal is perhaps the best example of adopting a third gender classification for persons who do not fit into the male-female binary. The 2007 Pant judgement and its subsequent adoption highlighted the challenge to effectively identify and execute the gender disparity.
The example of Nepal demonstrates how it can be done while upholding human rights. It is unclear whether Nepal’s third gender will remain an official designation. Nonetheless, this categorisation appears to be an appropriate approach for securing equal laws for gender-variant people.
The article clarified that third-gender persons in Nepal are beginning to step outside of the dark and seek similar privileges on par with those of other sexes as a result of the country’s societal, cultural, and ideological changes. Even though the Supreme Court previously authorised same-sex marriage by an order 15 years prior, the stipulation could not be put into effect due to a lack of a particular statute, which prompted the Court to step in once more.
- Michael Bochenek and Kyle Knight, “Establishing A Third Gender Category in Nepal: Process and Prognosis” 26(1), Emory International Law Review 11-41 (2012).
- “Nepal’s Supreme Court Orders Govt to Register Same-Sex Marriage”, The Indian Express, 28 June 2023, available at: https://indianexpress.com/article/world/nepals-supreme-court-orders-govt-to-register-same-sex-marriage-8690988/ (Last visited on July 13, 2023).
- Binaj Gurubacharya, “In First, Nepal’s Supreme Court Allows Registration of Same-Sex Marriages”, The Diplomat, 29 June 2023, available at: https://thediplomat.com/2023/06/in-first-nepals-supreme-court-allows-registration-of-same-sex-marriages/ (Last visited on July 13, 2023).
- Dhamini Ratnam, “Nepal SC’s Order to Register Same-Sex Couples is Thanks to its Own Judgment, Passed 15 Years Ago”, Hindustan Times, 30 June 2023, available at: https://www.hindustantimes.com/education/news/nepal-scs-order-to-register-same-sex-couples-is-thanks-to-its-own-judgment-passed-15-years-ago-101688104654895.html (Last visited on July 13, 2023).