Law Gives Good Cheer To Queers

The Nepal Supreme Court’s decision to repeal laws discriminating against lesbians, gays and transgender people is momentous, say ARVIND NARRAIN and VIVEK DIVAN

DECEMBER 2007 brought some glad tidings for the South Asian gay, lesbian, bisexual and transgender community. In a stunning decision, the Nepal Supreme Court declared that all discriminatory laws against LGBTI (lesbian, gay, bisexual, transgender and intersex) people must be repealed by the government and provision be made for recognition of the human person as not only male or female but also as third gender in terms of citizenship rights based on government documents. The icing on the cake, as it were, was the setting up of a committee by the court to look into whether same-sex marriage would be appropriate taking into account South Asian realities.

The decision of the Nepal Supreme Court is momentous (regardless of whether LGBTI people finally will be allowed to marry in Nepal) because it is at odds with the way courts have treated LGBTI concerns in the kindred regions of South Asia.

Afghanistan, Pakistan, Bangladesh, Maldives, Sri Lanka, Bhutan and the region’s socalled enlightened democracy, India. The only other country in South Asia where the criminalisation of homosexuality and the denial of equal rights to LGBTI people has been challenged is India. The response of the Indian judiciary has been to procrastinate and has so far failed to take a decisive stand.

In the context of South Asia, the larger significance of the Nepal Supreme Court’s decision is the articulation of a deeper meaning to the understanding of democracy. The court, by asserting that LGBTI people are citizens within the meaning of the nation’s Interim Constitution, has shown that it is primarily concerned with justice and fairness and not afraid of the bugbears of ‘tradition’ and ‘values’. The Indian government’s response to the petition challenging the anti-sodomy law, Section 377 of the Indian Penal Code, has been to defend the law as being vital to protect Indian culture from ‘foreign influences’. By contrast, the Nepal Supreme Court showed greater willingness to understand the developments in international law and jurisprudence in protecting the rights of LGBTI people and even develop on international law to suit the Nepali context.

PERHAPS THE central significance of the decision was the remarkable insight and sensitivity, which the court demonstrated in extending protection to the most discriminated section of the Nepali LGBTI population — the metis (transgender). It is the meti community which has been at the forefront of LGBTI struggles in Nepal and at the receiving end of much State and societal violence. The court’s prescience in articulating the rights of this community through the notion of the third gender is important in the South Asian region where the transgender community of hijras, kothis and metis have been at the bottom of the socio-economic hierarchy. In the context of the West, it has often been gays and lesbians who have been given protection by the State through the notion of sexual orientation. By recognising a third gender, the court has asserted that it will be particularly solicitous of the rights of these people.

In fact, this message of the court is a contribution from the global South to the way the LGBTI community will be shaped in the years to come around the world. We are proud that South Asia has contributed this very important aspect to the contours of queer struggle.

After decades of being told that lesbian, gay, bisexual and transgender people are less than human and therefore do not have rights, Nepal has shown a refreshingly new and enlightened position, one which must be emulated by other nations in South Asia in general, and India in particular, which holds itself out to be a beacon of democracy and progress in the region.

Arvind Narrain is a lawyer with Alternative
Law Forum, Bangalore
Vivek Divan is a lawyer and queer activist