Gender Question | A tale of two South Asian countries and same-sex marriage - Hindustan Times
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Gender Question | A tale of two South Asian countries and same-sex marriage

ByDhamini Ratnam
Feb 18, 2024 09:00 AM IST

India’s SC rejected petitions for marriage equality, but Nepal’s SC rebuked the state for not registering same-sex marriages. What explains this difference?

In December 2022, Laxmi Ghalan (41) and their partner, Meera Bajracharya (45) petitioned the Nepal Supreme Court’s constitution bench, challenging specific provisions pertaining to marriage in the National Civil Code of Nepal. These provisions, their petition said, were not in consonance with Nepal’s constitutional guarantees of rights to equality, social justice and citizenship. While Nepal’s landmark new Constitution in 2015 guaranteed these rights to persons of gender and sexual minorities, the Nepal Civil Code which was issued in 2017 recognised marriage as only between a man and a woman.

Maya Gurung and Surendra Pandey receive their marriage certificate after legally registering same-sex marriage, at Dordi Rural Municipality of Lamjung district in Western Nepal. Nepal registered the first female-female same-sex marriage, between Anju Devi Shrestha and Suprita Gurung in Bardiya district(PTI) PREMIUM
Maya Gurung and Surendra Pandey receive their marriage certificate after legally registering same-sex marriage, at Dordi Rural Municipality of Lamjung district in Western Nepal. Nepal registered the first female-female same-sex marriage, between Anju Devi Shrestha and Suprita Gurung in Bardiya district(PTI)

Other queer persons, including Maya Gurung, a cis-woman, and Surendra Pandey, who is the general secretary of a non-governmental organisation, Mayako Pahichan Nepal, also filed writ petitions in the Supreme Court seeking legalisation of same-sex marriage in Nepal.

In June 2023, the SC passed an interim order that directed the office of the prime minister and council of ministers of Nepal and other relevant ministries to establish a “transitional mechanism” to ensure the registration of marriages for “same-sex couples”.

By November 2023, Gurung and Pandey became the first queer couple to register their marriage. Earlier this month, Anju Devi Shrestha and Suprita Gurung, a lesbian couple, registered their marriage in the country. Same-sex couples finally have access to a legal document.

Last year, a constitution bench of India’s Supreme Court, headed by the chief justice, rejected a host of petitions seeking marriage equality for the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI+) community. Marriage was not a fundamental right, the bench found.

How do two countries with shared traditions, and social and cultural mores, diverge on the issue of same-sex marriage? The answer lies in the years between 2001 and 2015, and the people’s movement in Nepal that swept everyone up in a shared dream for equality.

A country in turmoil

In June 2001, several members of Nepal’s royal family, including the reigning King Birendra, were massacred by crown prince Dipendra. This cataclysmic event led to the fall of the monarchy and the institution of a political system — and a Constitution — that upheld the significance of individual rights at its core. What’s more, non-discrimination against same-sex persons was written into the newly-formed constitutional document.

At the time, Nepal was five years into a civil war as the Communist Party of Nepal (Maoist) fought with government forces to overthrow the constitutional monarchy, whose new titular king was the late Birendra’s brother Gyanendra, and establish a people’s republic. A short-lived ceasefire after the royal massacre saw the CPN-Maoists take up arms again.

“In 2003, an Emergency was imposed, and security forces descended on the streets. The third gender population faced a lot of violence, both from them as well as the Maoists. Even in Kathmandu, the situation was bad. I would go three or four times a week to bail out transgender persons who were detained by security forces under some pretext or the other. It was a special situation created by the state and the security forces had impunity,” said Sunil Babu Pant, who co-founded the gay rights group Blue Diamond Society in 2001, and became one of the country’s most well-known human rights activists.

By 2005, King Gyanendra had dismissed Nepal’s elected government, suspended the constitution and assumed direct rule, with the stated aim of ending the Maoist insurgency. The king’s action was met with fierce protests by people, political parties and the CPN-Maoist, leading to Gyanendra’s restoration of democracy by April 2006. But the monarchy’s days were numbered. The subsequent spread of the large-scale pro-democracy people’s movement beginning in 2006, ultimately led to the collapse of the monarchy.

Pant recalls the heady days of Nepal’s Jan Andolan. The 2006 pro-democracy protests were largely led by students’ unions, Pant said. “We went to all the protests. And that’s where we started building connections with other political parties and organisations.” Eventually, the people’s movement snowballed to include ordinary citizens and political parties, which eventually led to the fall of the autocratic monarchy and the setting up of an interim democratic government in 2007.

But the promise of those heady months did not translate into actual rights for Nepal’s sexual and gender minorities, Pant said. When the political parties invited suggestions for an interim Constitution for Nepal, Pant’s suggestions for inclusion of specific LGBTI rights “were thrown in the dustbin”. “The same people we marched with on the streets refused to meet us,” he said.

This prompted Pant to petition the Nepal Supreme Court in 2007 for social and legal recognition of sexual and gender minorities, including transgender persons. He was joined by Mitini Nepal, the organisation started by Ghalan and Bajracharya, as well as two others. The resulting Nepal Supreme Court order in 2007 was far-reaching and path-breaking.

What did the SC order state?

The Supreme Court in its order recognised the legal identity of transgender persons and on the issue of same-sex marriage, held that it was the inherent right of adults to marry whom they wish to. The SC at the time also directed the government to form a committee to study the issue of same-sex marriage and prepare a report.

“We all rejoiced at the order — it was unbelievable,” Ghalan recounted. “We thought we had won all the rights – to marry, adopt, everything.”

Yet, when Ghalan approached the Chief District Officer’s office to get their citizenship certificate — according to Nepal Citizenship Rules (2006) prevalent at the time, a citizen of Nepal who has completed the age of 16 years and intended to obtain the certificate of citizenship of Nepal by descent, had to make an application with specific documents — they were told that they cannot be given a document in their chosen gender identity. Ghalan and Bajracharya also tried to get their marriage registered in a court, but they were turned away.

“We were asked, who among us was the man, and who was the woman,” Ghalan recalled.

A gay lawmaker, a new democracy

If the years between 2001 and 2006 were cataclysmic for Nepal’s citizens, the years that followed the institution of a democratic government were no less eventful. In 2008, Pant became the first openly gay lawmaker in the newly formed democratic government. The main task of this government was to come up with a new constitution for the country. The SC had clearly stated in 2007 that the new Constitution must guarantee non-discrimination on the grounds of gender identity, as well as sexual orientation.

“I had this readymade presentation on my laptop that I took to the Parliament and spent at least 3-4 hours every day talking to [members of the Parliament], orienting them on gender, sexuality, human rights and all those things that they may have questions about,” said Pant. He was also part of the committee tasked with drafting the Fundamental Rights.

In September 2015, Nepal’s new Constitution was ratified, turning the constitutional monarchy into a federal democratic republic. Its fundamental Right to Equality, under Article 18, prohibited the state and judiciary from discriminating against gender and sexual minorities. Article 42, or Right to Social Justice, enshrined the right of gender and sexual minorities to participate in state mechanisms and public services. Lastly, Article 12 affirmed the right of citizens of Nepal to choose their preferred gender identity on citizenship documents.

The same year, the government committee mandated by the Supreme Court in 2007 to inquire into the possibility of same-sex marriage in Nepal, issued its report. It highlighted the work carried out by the Ministry for Women, Children and Social Affairs (now the Ministry for Women, Children and Senior Citizens) in ensuring marriage equality for members of the LGBTI community, by amending specific words in Nepal’s draft Civil Code and making them gender neutral. “For recognition of same-sex marriage and resulting liabilities related laws needed to be amended. Especially, it is necessary to include such provisions in Bills of Criminal Code and Civil Code,” the report stated. However, Nepal’s new civil and criminal codes that were released in 2017 continued to refer to marriage as being between a man and a woman.

It was this anomaly between the Civil Code and Constitutional rights that led the petitioners to approach the Supreme Court.

Way forward

Within two weeks of the apex court’s June 2023 order, the Kathmandu District Court refused to register a marriage because both applicants were of the same gender, the Press Trust of India reported. It thus fell to Lamjung district to register Nepal’s first interim same-sex marriage, in November 2023. The marriage was between a transgender woman and a man, both of whom had been born male.

This past week, Ghalan and Bajracharya’s hopes of legalising their 24-year relationship got a big fillip when Nepal registered the first female-female same-sex marriage, between Anju Devi Shrestha and Suprita Gurung in Bardiya district, per a PTI report.

How soon can these marriages move from the temporary register for nontraditional marriages ordered by the Supreme Court, into full-fledged legal marriages once Nepal amends its civil code, time will tell.

Dhamini Ratnam, HT Premium editor in-charge, writes about gender, sexuality and our blind spots

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