Editor’s Note: The author has used the term ‘same sex acts’ as a colloquial reference to all those forms of sexual engagements that are interpreted as ‘unnatural’ under the criminal code of several post-colonial countries in Southeast Asia, including India and Nepal.
TW: Mention and description of transphobic violence
Nepal’s title as a queer friendly nation often shrouds the real struggles faced by queer people living in the country. The romanticization of Nepal being a safe abode for the queer community stems from the gender and sexuality recognition laws introduced in the New Constitution of the country in 2015. It is also the only South Asian country that has passed landmark reforms to guarantee safety to individuals from the LGBTQIA + community by outlawing gender and sexual discrimination way back in 2007. The glorification of the laws and policies surrounding queer rights in Nepal can be understood given how low the benchmark is in the context of South Asia. For example, India only decriminalized Section 377 of the Indian Penal Code in 2018. The decriminalization made private homosexual relations legal. On the other hand, countries like Pakistan, Bangladesh, and even Singapore have still not ousted the draconian law that criminalizes homosexuality. Sri Lanka with its Article 365 criminalizes same sex acts. Introduced way back in the era of British colonisation, such laws criminalizing same sex acts continue to haunt and dictate the lives of Queer individuals in many South Asian countries.
While Nepal may be the most progressive state, championing queer-friendly laws when compared to its South Asian counterparts, it is worth noting that the most marginalized sections of people within the queer community still do not have safety protections guaranteed to them. Often the voices within the community are those of cis-gender gay men; as a result, trans people and other marginalized gender identities are invisibilized in social as well as institutional spheres. The government has also not done anything to ensure safety of trans people, especially trans women, who are often on the receiving end of threats of different forms of harassment/violence. On top of that, trans-women also face institutionalized violence inflicted by the police, making them highly susceptible to police brutality. Elite, upper-caste cis-gender gay men often end up stifling others’ voices as well as experiences. Cis-gender gay men are mostly the ones who have or enjoy some kind of institutional power within the Queer community. Most of the laws are therefore made and proposed by cisgender people with little to no consultation from people within the community.
It was only in 2021, a group of 13 trans-women in Kathmandu were beaten up by policemen. They were taken into custody by the police, which came to the fore of media discourse only because of the videos that were circulated around on social media. The outpour of criticism from activists and people active on social media forced the Nepal Police to release a statement that ended up blaming the trans women for breaking the laws, when it was clear that they were just taken into custody and beaten up because of their trans-ness. Over the years, there have been numerous reports of the police harassing, attacking, and raping transgender people which are often successfully swayed under the rug because it is committed by the police.
Adding on, the gender recognition laws that proclaim to ensure dignity and rights to transgender people are also not as inclusive as they may first appear. The “others” gender category is an example of it. The Ministry of Home Affairs promulgated and implemented “Directive regarding issuance of citizenship mentioning ‘others’ in the gender marker to people of sexual and gender minority community, 2069 (2012)”. “Others” or the O gender category is included in identity cards such as passports and citizenships along with Census Data collection and Immigration Forms.
The ”others” gender category has been criticized and come under scrutiny from various queer rights activists for being limited and discriminatory towards trans people who cannot identify as male or female but are rather boxed as “others” that in turn isolates them from their own gender identity. The “others” gender category enlists all individuals from the queer community into the label, this sort of categorization of LGBTQIA + individuals as “others”, dismisses the idea that gender identity and sexual identity are two very distinct things. In 2012, the Ministry of Home Affairs had stated that all LGBTQIA + individuals will be boxed into the “others” category. It also completely erases the experiences and identities of non-binary, gender non-conforming, and intersex people who do not want to be boxed in any of the three choices – it in turn forces them to be boxed into a category that they do not identify with.
The inclusion of the O category has also made the process for trans people to secure citizenships and passports more difficult. On the other hand, cis-presenting queer individuals have it easier compared to trans, intersex and non-binary individuals who often face the brunt of the exclusionary law. While trying to obtain citizenship, individuals not only have to box themselves as “others” but also risk the uncertainty of using their chosen name on the identity card – citizenship or passport. A few trans people have said that they were able to change their deadname, whereas a lot of them still cannot use their chosen name on the identity holders and must resort to using an identity that they find dysphoric. Furthermore, providing citizenship also does not guarantee that all the documents of the person will be updated. This puts trans individuals in a position where there are so many discrepancies in their citizenship and other official, identifying documents. These kinds of discrepancies are the reason why there is such low representation of trans and other gender minorities in institutions – whether they are governmental or higher educational institutes.
Since 2020, there is a proposed bill that seeks to involve medical intervention from professionals, which also poses danger to the trans community. According to this bill, transgender people may have to obtain a medical certificate to prove gender identity. It would be integral to obtain a transgender medical certificate from Bir Hospital to secure a citizenship. In a country where medical professionals are often ignorant about the struggles of trans and gender minorities, subjecting individuals to this form of environment exposes them to medical discrimination and more transphobia. Gender minorities already face a lot of difficulties at bureaucratic levels while trying to secure citizenship.
Adding to this, Nepal recently had a census where the “others” category was created to account for queer people. According to the government the category was a way to find out the approximate queer population in the country. However, it is imperative to note that there are logical fallacies in adopting such a methodology. According to Rukshana Kapali, a prominent queer and transgender rights activist, the data from the results will give little information about the LGBTQIA+ community in Nepal. Given the fact that all queer people would need to mark their gender as “others” to be counted as queer, it is highly unlikely that it would give an accurate representation of the reality. Also given how a lot of people in the country are still not open about their sexual and gender identity, such provisions make it difficult for people to identify especially in an official census exercise. Another logical fallacy as mentioned before is treating the “others” category as a catchall for queer individuals regardless of their sexual orientation or gender identity. The logical fallacy is also affirmed when one looks back at the 2011 census where only 1500 individuals across all of Nepal identified themselves under the category of “third gender”.
Moreover, the ”others” category was only used in the first phase of the questionnaire. The category is limited to the first form that contains 25 questions. The first phase of the questionnaire contains house and household listing. Whereas the main and the most important questionnaire containing 55 questions from the census and has skipped the ‘others’ category in the queries it poses. Stakeholders claim that international standards, budgeting concerns, lack of extensive knowledge and vocabulary were some of the reasons for this oversight.
The Nepali governance system has a long way to go when it comes to ensuring safety of queer people especially transgender and gender minorities. In a country where sex work is illegal, decriminalization of sex work would be essential to ensure safety to sex workers. Since most transgender people are deprived of work opportunities and education, a lot of them especially transgender women turn to sex work for their survival and livelihood. However, due to its illegitimacy, transgender women often face institutional violence and neglect, making them even more vulnerable. Additionally, the rape laws in Nepal are also exclusionary. According to the 2015 Criminal Code, rape is described as a forceful act committed by a man on a woman. This excludes queer people and cisgender men who are survivors of sexual violence, from accessing legal redressal and protection by the law.
The veneer of Nepal being a safe haven for queer people completely dismisses the discriminatory nature of such laws that appear to be “progressive”. This may be the reason why there are very few organizations and groups that are organizing and pitching amendments to overturn the colonial-era laws of the Penal Code. A lot of the discourse and activism surrounding queer rights have mostly been hijacked by NGOs/INGOs that tend to have a saviour complex and mostly lobby within the machinery of the State. There are only few groups that are currently challenging these outdated laws, most of which are youth-led collectives or are led by groups that are the most marginalized within the larger queer community.