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The intricacy of legal gender recognition in Nepal

By Rukshana Newa – Wednesday, January 15, 2020

From national to global headlines and leads, Nepal is often potrayed as a one of the progressive countries to recognise rights of transgender, third gender and non-binary people. Homosexuality was never criminalized, transgender people have rights, the constitution metions ‘gender and sexual minorities’ as one of the marginalized groups of the population. These are some of the ways Nepal is also perceived as a queer friendly country. [1] [2] [3] I spent most of my teenage life thinking this way, until I had to deal with the superfluous complicated institutional system of the country, and all my notions got shattered under the burden of a quaint system. Compared to other countries, in South Asia, Nepal has systems in place and a ‘comparatively’ safer legal ambience for queer people. Criminalization was never in place and that there’s been several Supreme Court verdicts favouring the rights of queer people. The phrase ‘gender and sexual minorities’ was subsequently inscribed in the constitution. These are some instances that draw a narrative of Nepal’s portrayal as a heaven for queer people. While those instances are definitely the facts, the impression about queer rights in Nepal in these narratives do not give a picture about the complex reality in place that many queer people suffer to navigate. Before we begin, let’s take a crash course of the gender identity recognition movement’s history in Nepal. In 2007, for the first time the Supreme Court of Nepal ruled that a ‘third gender option’ be added;  discriminatory and exclusionary laws against queer people be repealed and a committee be formed to study ‘same-sex marriage’. The court also ruled the government should implement the finds of the study. In around a decade several other Supreme Court verdicts regarding the rights of consenting adults to live together (regardless of what gender they both are); allowing foreign nationals who got married with Nepali citizenship (of the same gender) to get a spousal visa; ruling gender identity to be self-determined and allowing change of gender markers on citizenship documents already acquired. While these verdicts were implemented, the Ministry of Home Affairs chose ‘Others’ for a new gender marker alongside Male and Female. The implementation began from the citizenship documents and went on to passports, sim cards, and many other settings where someone had to mention their gender. [4] Now let’s throw light on reality. Despite that the constitution mentions ‘gender and sexual minorities’ as a disadvantaged group, this group receives no attention to what it was constitutionally meant; such as disadvantaged groups have right to get separate acts and laws for their betterment, have right to inclusive representation, cannot be missed in the formulation of any law and order. It is not completly true that Nepal has a law that recognizes transgender and non-binary people. As soon as the court made the order about a new gender option, some individuals filed an application at their respective District Administration Office to acquire their citizenship. [5] It was the time when the citizenship certificates were handwritten. The first people to apply for citizenship under the new gender marker were mentioned as ‘third’. When Nepal started printing citizenship certificates digitally, the term ‘Others’ was chosen as a gender marker alongside Male and Female. The term ‘Others’ itself is a derogatory term and it is othering individuals who do not fit into the gender norms of society. Moreover, it is still ambiguous what range of gender identities this option covers. The most prominent interpretation is that it refers to people who identify as third gender. However, it isn’t completely accurate because binary identifying transgender people as well as people with intersex variations have also been provided with citizenship under this gender category. The Ministry of Home Affairs has another horrendous interpretation of the ‘Other’ gender marker. A directive on providing citizenship to sexual and gender minorities under the other gender category (2012) states that ‘other gender’ means, Lesbian, Gay, Bisexual, Transgender and Intersex-ed people. The most important problem in this is that the ministry has lumped sex, gender identity and sexual orientation into the same box when they are three different aspects of a person. Moreover, the text in Nepali has the term ‘third gender’ while its English translation has been placed as ‘transgender’. [6] Sex characteristics are determined by person’s genitila and chromosomes. Gender identity is determined by a person’s internal sense of being man, woman, neither or both. Sexual orientation is determined by a person’s sexual and romantic attraction to someone else. As mentioned in the directive Lesbian, Gay and Bisexual are sexual orientations and not gender identity. ‘Inter-sexed’ is an outdated vocabulary to refer intersex people and it is a sex characteristic. Intersex people have different gender identities. Similarly, third gender in concepts of South Asian Hindu and Muslim communities is that of a person who is neither a man nor a woman; while transgender people are those individuals who identify with gender that does not align their sex assigned at birth. Transgender men identify as men and transgender women identify as women, and do fall under the man and woman sprectrum respectively. The directive portrays a sense of insecurity amongst the government officials as it provisions that people registered under ‘other gender category’ shall be recorded in a separate document which will be reviewed periodically. Along with the problematic nature of this directive, the conversation completely ignores binary identifying transgender individuals and non-binary gender identities as genderfluid, gender non-conforming, and so on. Beginning from an insensitive nomenclature, to ambiguous and misleading definitions that are in place, the implementation is even more complicated. Most of the people who implement these laws do not understand the concept of SOGIE (Sexual orientation, Gender identity and Sex characteristics). Most of them assume that the ‘other gender’ means an ‘intersex person’ and therefore an application for citizenship in the ‘O category’ means they’d want to know why your birth certificate and school certificates mention you as either M or F. To apply for a citizenship certificate one needs to present their birth certificate and school certificates. For transgender, third gender and non-binary people they have their sex recorded either as Male or as Female in their birth certificates and continue with the same in school. It differs from person to person, at what age they realise their gender identity and come out to people. In such case, even if an individual went to amend their birth certificate and school certificates to reflect their gender identity, there is no provision for such. The Supreme Court verdict only speaks for citizenship. Despite the Supreme Court ruling gender identity to be self-determined, it hasn’t convinced people in the implementation. While some people manage to get their citizenship certificate recorded under the O gender marker, changing one’s legal name is near to unobtainable. In many cases, people in the implementation interpret the Supreme Court’s verdict of allowing change in gender marker to include their names that ‘name’ is an integral part of gender identity and the society of Nepal has names that reflect gender. However, many people in the implementation will not agree for a name change because ‘a name change’ hasn’t been specifically specified. With the aforementioned conversation being to people who haven’t acquired a Nepali citizenship in their life, for those individuals who already have and want to amend it, have almost no way to sort it out. Most of the people in power as implentors do not understand the queer diversity. Now that there is an option called ‘Other gender’, how would an other gender person be referred ? Mr. or Ms. ? Son of or daughter of ? Well, the government of Nepal opted for cancelling all the gendered vocabulary and replacing it with the term ‘others’. For instance, if a person with M gender marker has their certificate saying, “Mr. Abc, the son of xyz and zyx has passed Grade 10 examinations. He scored 90% marks in his terms” and a person with F gender marker has their certificate saying, “Ms. Abc, the daughter of xyz and zyx has passed Grade 10 examinations. She scored 90% marks in her terms”, a person with O gender marker will have their certificate as, “Others Abc, the others of xyz and zyx has passed Grade 10 examinations. Others scored 90% marks in others terms.” [7] This is one of the worst examples of dehumanization, lack of knowledge and sheer insensitivity. The introduction to ‘other gender category’ in citizenship necessarily did not mandate or guarantee the same rights in all other sectors and institutions of the country.  In 2012, the ‘O’ gender marker was added to the passport in a five year gap after it was possible in the citizenship. Those who had the citizenship as ‘others’ never got to travel abroad during the period. However, till today the computers in the immigration desk at Tribhuvan International Airport in Nepal cannot read Nepali passports with the ‘O’ gender marker. Such barriers not only exist in the passport different sectors due to lack of the gender option, but holding a citizenship with ‘O gender marker’ creates hurdles for equal access in many sectors such as employment, education, health, etc. The provisions of legal gender identity recognition in any of the legal documents apart from citizenship and passport, such as papers of house ownership, educational certificates, birth certificate, etc do not have any provisions in this regard. In fact, it again might depend on the interpretation of the person who is implementing. Nepal has very conservative, traditional and protectionist laws in place. All the details in whatever legal documents one holds,  should match and even a minor spelling error will cause a lot of trouble to people. Neither can you change any of your legal documents prior to applying for citizenship certificate so that you align all of them with your gender identity, nor can you do it later gaining citizenship based on your gender identity. Most people get stuck with this, and more complications develop. Meanwhile, there is a provision for individuals who have two different names in different legal papers of their to be certified by their ward office ( a local government body ) as the both names are of the same individual, that certificate of ward, but also which can be rejected or still be invalid in certain institutions. Contributing to all the issues, the State Affairs and Good Governance Committee of Federal parliament of Nepal has proposed a citizenship bill that will take legal gender identity recognition into further regression, allowing only ‘third gender people’ to have citizenship certificate after ‘showing  medical evidence’. [8] [9] The romanticized picture of Nepal being a country respecting rights of transgender, third gender and non-binary people is a veneer glimpse of the country. In reality transgender, third gender and non-binary people not only face challenges and discrimination in society, but are also tormented by labyrinthine laws and provisions.

Footnotes
  1. How Did Nepal Become a Global LGBT Rights Beacon? : https://www.hrw.org/news/2017/08/11/how-did-nepal-become-global-lgbt-rights-beacon
  2. Nepal: Asia’s Most Gay-Friendly Country? : https://www.huffingtonpost.co.uk/entry/nepal-asia-gay-friendly_n_3660792?ri18n=true
  3. Nepal is one of the most forward-thinking countries in the world for rights for transgender people https://www.theguardian.com/global-development-professionals-network/2016/feb/12/trans-rights-meet-the-face-of-nepals-progressive-third-gender-movement
  4. निर्णय नं. ७९५८ – उत्प्रेषण, परमादेश, प्रतिषेध लगायत जो चाहिने आज्ञा आदेश वा पुर्जी जारी http://nkp.gov.np/full_detail/2404
  5. In Nepal, people apply for a citizenship certificate at the age of 16. The provisions with Nepali citizenship can be read here : http://www.lawcommission.gov.np/en/archives/13046
  6. यौनिक तथा लैङ्गिक अल्पसङ्ख्यक समुदायको व्यक्तिहरूलाई लिङ्गको महलमा ‘अन्य’ जनाई नागरिकता जारी गर्ने सम्बन्धी निर्देशिका, २०६९
  7. Scroll to the section “Nepal Era 1139/8/30 (2 July 2019)” https://rukshanakapali.com/how-i-won-changing-provisions-for-trans-people/
  8. Citizenship bill of Nepal to retrogress legal gender recognition https://queermedianp.home.blog/2019/11/27/citizenship-bill-of-nepal-to-retrogress-legal-gender-recognition/
  9. Proposed citizenship bill http://hr.parliament.gov.np/uploads/attachments/8zpd7uhoplj4xcbi.pdf

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JAN GABRIEL CASTAÑEDA

Philippines
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Jan is passionate about seeing through the potential contributions of psychological sciences and human rights advocacy in LGBT people’s lives. He is currently Program Associate of ASEAN SOGIE Caucus and is a member of the LGBT Psychology Special Interest Group of the Psychological Association of the Philippines. He has written for various platforms and publications on a diverse range of topics from gender and sexuality to human rights experiences in different contexts. Jan’s desire is to engage in productive and meaningful work that bridges scholarship with practice rooted in people’s real experiences.

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She then pursued her studies to take up law in San Beda University in Mendiola, Manila. As a law student, she was still active in student organizations: She joined moot court competitions, she served as layout artist in 2 of San Beda Law’s Official Publications: The Barrister and San Beda Law Journal. In her last year in law school, she was the President of San Beda Law Human Rights Advocate (HRA), where she was later conferred Leadership Award by the Association of Law Students of the Philippines (ALSP) and her organization, HRA was awarded top advocacy organization.

She passed the 2019 Bar Examinations and became a full-fledged lawyer by 2020.

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Ronan passed the Philippines nursing licensure exam in 2022 immediately after graduating his Bachelor of Science degree in Nursing from the University of San Agustin. While juggling his academics, he was elected governor of his college’s student council (Nursing Student Council) in 2021 and board member in 2019 where he was awarded the leadership award and Agustino para sa Tao award due to his excellence in service. He is also a certified Safety Officer (SO1) after completing his training.

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Justin entered Youth Voices Count, Inc. in 2018 while studying in Thailand. He later took on the role of Executive Director beginning 2019 and successfully set up the legal registration of the organization in the Philippines under the Securities and Exchange Commission (SEC). Since then, he has been leading the organization in various programs and projects centered around LGBTIQ children, adolescents, and youth. Outside Youth Voices Count, Inc., Justin is active in other initiatives in the field of research and law. He was a law student fellow of the Legal Education Advancement Program (LEAP) of the Legal Education Board and the UP Law Center in 2022.

As an aspiring lawyer, he hopes to one day be instrumental in providing legal support for marginalized populations. Justin has also published reports, journal articles, commentaries, and book articles in the fields of law, HIV/AIDS, LGBTIQ, and Human Rights.

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