The reality of transgender rights in Nepal

In the last decade, an image of Nepal—that of an LGBTQIA+ friendly country—has been promoted and disseminated through various national and international media outlets. This claim is widely reported, and many people believe that queer people in Nepal have been afforded all possible legal rights. It is common to hear Nepal referred to as “a beacon for LGBT rights”, or that “Nepal has some of the most progressive laws regarding LGBT rights”. It is also believed that Nepal is especially progressive when it comes to addressing the rights of transgender persons. 

How did this image of Nepal—as a country friendly to the queer community, in particular, to the transgender population—become so prominent, considering the reality of numerous bureaucratic and administrative hurdles and the lack of inclusive legislative measures. 

The most dominant narrative regarding transgender persons in Nepal today is that the Constitution has awarded them the right to self-determine and record their preferred names and gender markers in all official identity documents (often referencing the landmark 2007 case Sunil Babu Pant vs The Government of Nepal). Let us take a look at the realities behind this assumption. 

Please note: for the rest of this piece, we will be using the term PoMSOGIESC (‘People of marginalized sexual orientation, gender identity and sex characteristics), instead of the more commonly used LGBTQIA+. The term PoMSOGIESC was coined by Nepali activists because it’s a broader umbrella term than LGBT, LGBTI, LGBTIQ, etc.

 Identity documents

From registering a new birth to obtaining a citizenship certificate, the process of obtaining any identity document is complicated, and a number of rules must be followed for them to be issued. 

In order to issue a birth certificate, each new birth in Nepal has to be registered at the ward office within 30 days of the child’s birth. This birth certificate is then required while enrolling the child in school. The child is thereafter registered in all educational institutions they attend under the name and gender that were assigned to them at birth and recorded on the birth certificate. 

For example, the Basic Level Examination, BLE (previously the District Level Examination), taken at the end of Grade 8 requires students to present their birth certificates when they are registering for the exams. Furthermore, when the certification is awarded, it must reflect the exact personal information that is in the student’s birth certificate. 

Similarly, this process is repeated when students register for the Secondary Education Examination, SEE (previously SLC), the High School Certificate (previously +2 studies), and any further undergraduate, graduate, and post-graduate studies. The personal information in all education certificates must be congruent with the personal information in a student’s birth certificate and also with the personal information in preceding certificates.

Read also: How visibility is changing the lives of LGBTIQ+ people in Nepal

A citizenship certificate is also needed to access services like buying and owning a piece of land, a house, and other fixed assets; to own a vehicle; to apply for a passport or a driving license; to open a bank account; and to even own a SIM card for your phone. In Nepal, one can apply for a citizenship certificate at the age of 16. The application for the citizenship certificate also asks for an applicant’s birth certificate and the details in both of these documents must be identical for a citizenship certificate to be issued. These personal details are set by the parents or guardians within 30 days of a child’s birth and policed by the local registrars. 

But there is no universal age range or an assigned time when transgender persons realise their gender identity and come out. So for every trans person in Nepal, the number of documents they hold that reflect the correct personal information, including their gender identity, is highly dependent on the possibility of these documents (birth certificate, educational certificates, citizenship certificate, etc.) being amended. 

To make matters more problematic, the State Affairs and Good Governance Committee of the Federal Parliament proposed that while people can apply for citizenship as a male, female, or others, people identifying themselves as others must present an authorised doctor’s recommendation in order for the awarding authorities to approve the application. 

Amending identity documents

What provisions exist then in the law that allow for or support the amendment of identity documents? 

The National Identity Card and Vital Registration Act of 2076: Clause 25 of this Act has to do with amending the details in a birth certificate. It allows for amendment requests within one year of birth registration; there is no provision to allow for a change at a later age. It is unreasonable to expect trans persons to self-determine their gender identity or come out at such a young age, and there is nothing written into this Act that actually supports the amendment of the birth certificate for transgender persons.

The Correction of Age, Name, and Surname Rules of 2017: Although this regulation does mention that people can apply for a name change, it also gives absolute power of authority to the Chief District Officer and limits the time frame for amendment requests to within one year of the issuance of a national identity card. This regulation also makes no mention of any provision to allow people to change their gender marker. As one can apply for a citizenship certificate/national ID at 16, it is again unreasonable to expect all trans persons to determine their preferred name and gender marker by this young age.

The Directive on Operation and Management of Secondary Level Education of 2068: This directive states that one can change the details in a Grade 10 certificate only if they are different from the details in the exam registration form—the details in an exam registration form are expected to be identical to the details in the birth and Grade 8 certificates. This directive also mentions that Grade 12 certificates can only be amended if the details are incongruent with one’s Grade 10 certificate. 

Many young transgender students have appealed to the National Examination Board, requesting an amendment to the directive and to their educational certificates. Their appeals have so far been denied by the board, and thus thousands of transgender students have been denied opportunities for higher education. 

The Nepal Citizenship Act of 2063 (2006): This act governs the citizenship certificate and all related procedures. Clause 17 of the Act addresses the amendment of the details on the birth certificate—it states that only “trivial mistakes” such as spelling mistakes (aakar, ikaar) and the removal or addition of typical middle names like Bahadur, Kumari, Prasad, etc. are permitted, and only in the case that one is able to prove that their educational documents also have the addition or removal they are demanding. Apart from these changes, the clause also allows for women who get married or divorced to change their surname and address.

The reality for most transgender persons in Nepal is that none of these laws actually supports or allows for amending their official documents to reflect their preferred identities. 

What about the landmark case of 2007 Sunil Babu Pant and Others vs The Government of Nepal?

It is said that the PoMSOGIESC movement and community in Nepal gained widespread visibility, legitimacy, and certain legal victories because of the 2007 case Sunil Babu Pant and Others vs The Government of Nepal. This case, which was decided by the Supreme Court in December 2007, is considered historic for its contribution to the rights of the PoMSOGISEC population, including the people of the third gender, tesrolingi. 

According to the Supreme Court ruling, “The state should recognize the existence of all natural persons including the people of the third gender other than the men and women”. A report by the International Court of Jurists states that “the supreme court devoted the majority of its opinion [on this case] to the exclusion of metis (men who dress and identify as feminine) from almost all civic rights.” 

Two highly problematic narratives stemmed from this decision: firstly, the absence of a universal legal definition of people of the third gender meant that people were quick to declare that transgender persons were now recognized as people of the third gender (tesrolingi); and secondly, that Sunil Babu Pant and Others vs The Government of Nepal was a landmark case that established gender recognition for transgender persons in Nepal. 

The reality is that the 2007 decision by the Supreme Court failed to address the concerns, struggles, and rights of a large portion of the transgender population in Nepal. It has established rights and recognition on paper to only those individuals who identify as a person of the third gender. It ignores the fact that there are many trans men who want to select the Male gender marker and many trans women who want to select the Female gender marker in official forms and documents. Similarly, it also ignores the fact that there are non-binary persons who want more gender marker options than just Male, Female, and Others to address the diverse range of non-binary identities, including gender-fluid, gender non-conforming, agender, bi-gender, demigender, etc. 

Pant and Others vs The Government of Nepal comes with a very complex legacy. It is praised both nationally and internationally for forwarding PoMSOGIESC rights in Nepal, but its failures and the adverse effects it has had on the wider PoMSOGIESC community do not get a space for discussion in the media.

Other, transgender, tesrolingi, and third gender

One of the consequences of the Supreme Court’s ruling in 2007 was the inclusion of Others (Anya) as an option for stating one’s gender identity in official documents. 

In 2012 (BS 2069), following the court’s initial 2007 ruling, the Ministry of Home Affairs promulgated a directive on issuing citizenship certificates to people from gender and sexual minority communities–they were to be able to state their gender marker on official documents as Others. This directive states that Others should be understood as gender and sexual minorities who are neither male nor female. It goes on to define gender and sexual minorities as lesbian, gay, bisexual, transgender, and intersex. 

The directive also presents the terms transgender (in English) and tesrolingi (in Nepali) interchangably, conflating the vocabularies and adding to the narrative that transgender and tesrolingi are the same. There is no consideration for the differences in sexual orientation, gender identity, and sex characteristics—all of these have been defined as Others. This 2012 directive is considered the main basis on which people can apply for a Nepali citizenship as a person of the Others gender. 

Read also: How to write about queer issues: Some lessons for journalists

Earlier this year, the headline that Nepal’s next census would count PoMSOGIESC people for the first time got splashed across the media. The narrative of Nepal as a progressive nation in terms of queer rights continues to be propogated in the public consciousness, but in reality, this has proven to be far from true. Like Nepal’s legal recognition of the rights of PoMSOGIESC people, the step taken by the Central Bureau of Statistics to include a ‘third gender’ category was glamourised for being a move inclusive of the PoMSOGIESC population. But a mindset that views all PoMSOGIESC people as third gender is deeply problematic and invisiblises a diverse spectrum of gender and sexual identities. CBS first decided to include a third gender option in 2011, but their attempt failed due to the lack of training and sensitisation of enumerators on the social dynamics of gender identification, among many other reasons. Anecdotal evidence reveals the distress caused to PoMSOGIESC people during the census process. In Bara, for example, a census enumerator demanded that a child be stripped naked when a family reported that their household included a third gender child. The census of 2021 plans to include the term Others in the gender list, but with neither any research nor prepared guidelines on the sensitivity of the issue.

While a second ruling by the Supreme Court in 2016 (Sunil Babu Pant vs The Government of Nepal) defines gender identity as one’s personal experience of gender and that gender identity should be self-determined and self-feeling and as such should not be arbitrated by bureaucrats, the law, society, or state, it still fails to address a large portion of the transgender population by limiting self-determination to only the third gender or tesrolingi, and the ambiguity in the language of the ruling leaves room for any implementing agent or bureaucrat to self-interpret the ruling. 

People of the third gender (tesrolingi)

Third gender is used to refer to people who do not identify as being entirely male or female. In certain religions and cultures of Nepal, the third gender is an identity that also finds its roots in Hindu mythology. Hindu texts make many references to the third gender: The Mahabharata, references, for example, Arjun’s transformation into Brihannala for a year; and Shikhandi, a prominent character in the epic, is born female but is raised as a man and later becomes male due to divine grace. Similarly, other texts like the Manusmriti and other Vedic literature highlight a tritiya prakriti (third nature). Religion’s deep influence on discourses means that third gender or third nature is considered as encompassing all those persons who do not fall under cisnormative definitions. Nepali activists have gone as far as to coin the term trinarist (tritiyabaadi) to denote this stance, which has prompted, encouraged, and propagated rampant fear and transphobia within and beyond the third gender community in Nepal by prescribing that anything beyond a Hindu-centered third gender identity is a threat to the community. The establishment of the monolithic third gender narrative also stems from the predominant tritiyabaadi ideology.

The PoMSOGIESC movement in Nepal

PoMSOGIESC activism in Nepal began as early as 2001. The first wave of the movement self-identified itse as a samalingi/tesrolingi movement, and its efforts were predominantly reflected in the 2007 and 2016 landmark cases mentioned above. 

The second wave of the PoMSOGIESC movement began in 2017-2018. The second wave emerged out of the dissatisfaction of those voices that felt suppressed and excluded by the first wave of the movement. It has also lent itself to broader discussions about queer rights and how language and vocabulary can shape the narrative of what it means to be queer and who falls under this identity. 

The second wave has also led to the creation of a wide range of neologisms in Nepali and Nepal Bhasa (Newa), and that has allowed for a more inclusive and expansive discussion and discourse of queer issues within the country. This second wave has also introduced the Nepali term paralaingik to refer to transgender persons. Earlier, there was no Nepali term for transgender persons, and they would be referred to as a third gender person even if they did not identify as one. The term paralaingik caters to transgender men and women who do not relate with a third gender identity.

The future of transgender rights in Nepal

In late 2019, mostly young transgender men and women across all seven provinces of Nepal came together to conduct an almost six-month-long discussion over social media platforms to discuss gender recognition of binary trans men and trans women. These discussions culminated in the creation of the National Transgender Demand Sheet on 31 March 2020—on the occasion of the International Transgender Day of Visibility. The demand sheet highlighted several salient points: a) trans men and trans women should have the right to select the M and F gender markers, respectively, on official documents; b) trans individuals should be allowed to change their name and gender marker; c) those trans individuals who have been compelled to identify as Others according to current provisions should have the right to amend their gender marker and/or name; d) privacy and data privacy should be a basic right of all persons; e) amendment of gender or name should be based on self-determination and not be dependent on any medical requirement.

Following this demand sheet, on 17 May 2020—on the occasion of the International Day against Queerphobia—the National Charter of Demands on Legal Recognition of Gender Identity was published with the consolidated efforts of 11 national organizations and groups, 33 individual activists, and four international organizations. This demand sheet rejects the Others gender option and the 2012 Directive by the Ministry of Home Affairs, and demands that it  be scrapped from the law. This was one of the first public documents that raised the issue of gender recognition beyond just the third gender and demanded inclusion and recognition for transgender men and women, intersex, and non-binary persons.

 It also demands that the gender options Male, Female, X (non-binary), and T (third gender) be included in all official documents, and that an option to opt out of a  gender marker also be made available. It asks that all changes to name and gender be allowed on the basis of self-determination and without subjecting anyone to requirements that violate a) their self-esteem and dignity; b) their basic human rights; c) their bodily integrity and autonomy, and/or under obligation to make irreversible changes to their body. This demand sheet also highlights the urgency and importance of education and the need to establish legal definitions of Sexual Orientation, Gender Identity, and Sex Characteristics (SOGIESEC) without conflating the definitions. 

On the same day (International Day against Queerphobia), Rukshana Kapali, a trans rights activist, renounced her citizenship/identity card, which identified her as an Others gender, and applied for an amendment to reflect her gender marker as Female—taking the first tangible action to challenge the forced third gender law.

Gender recognition is only the most basic step to affirming and legally establishing one’s identity. Transgender persons in Nepal face violations in each and every sphere of their lives, and yet currently, there are no concrete legislative measures to protect trans persons from the violations they endure simply and specifically because they are trans persons. Despite this lack of real and functioning legislative measures, Nepal still enjoys the reputation of a transgender-friendly country and that “at least legally” Nepal has secured all rights for transgender individuals. There is still a need for an extensive overhaul of the law and the language of the law in order to address the inequalities faced by the trans and broader PoMSOGIESC community in Nepal today. 

Moreover, as phrases like gender and sexual minorities are circulated in the Constitution and court rulings and celebrated by some PoMSOGIESC people, there is also a need for legal definitions and to differentiate all identities that fall under these umbrella terms so as to ensure that transgender rights are neither conflated nor confused with the rights of other minorities.