Yawning Bread. 25 December 2007

Supreme Court victory in Nepal




Even for gay people, it can be hard to understand what's going on with the gay question in other countries. Differences in culture, political experience, law and justice systems get in the way.  A recent news report about a big victory in the Supreme Court of Nepal illustrates this quite well.

The public statement by Sunil B Pant, leader of the country's Blue Diamond Society, a gay rights group, reads:

Sunil B Pant

Supreme Court of Nepal issued directive orders to the Government of Nepal to end discrimination against LGBTI and ensure equal rights as heterosexual men and women in Nepal.

Four LGBTI organizations including Blue Diamond Society had filed a writ petition in last April 2007 demanding to defend and protect equal rights of lesbian, gay, bisexual, transgender and intersexed (LGBTI) people of Nepal. After having heard 3 times over the last few months, Supreme Court of Nepal has recognized LGBTIs today as natural persons.

It is believed that LGBTI will enjoy, today onward, all the rights according their sexual and gender identities as other genders enshrined by the Constitution of Nepal and human rights conventions in which Nepal is a State Party. The Court issued directive orders to Nepal government to ensure rights to life according to their own identities and introduce laws providing equal rights to LGBTIs and amend all the discriminatory laws against LGBTI's rights as well.

On the issue of same sex marriage, The Court has also issued directive order to form a 7 member committee (Doctor appointed by Health Ministry, one representative from National Human Rights Commission, Law Ministry, socialist appointed by government of Nepal, representative from Nepal police, representative from Ministry of Population and environment and one advocate as a representative from the LGBTI community) to conduct study about the other countries'/international practice on the same sex marriage. Based on the 7 member committee recommendation government will make appropriate law.

-- Press Release by Sunil B Pant for the Blue
Diamond Society, 21 Dec 2007

One is left wondering what are those "equal rights" the court said they should have? And what, in the third paragraph, does "according their sexual and gender identities" mean? It is not altogether clear, though I accept that a press release has to be concise and so cannot get into the details.

Nonetheless, it appears that instead of interpreting laws or striking down acts of parliament or administrative government as we normally expect courts to do, the ruling is a directive to the government to do something positive. Hence, it may be a while more before the decision is given form by further acts of government.

What was notable, however, was that there was no mention about the law that criminalises "natural sexual acts", punishable by up to 1 year's imprisonment and/or a fine of 5,000 Nepali Rupees (S$116); it doesn't seem to have been struck down.


A pattern of violence

Nepali sexual minorities (Pic from BBC/Blue Diamond)

To better grasp the significance of this court ruling, we should try to comprehend the situation in Nepal on its own terms and this includes avoiding the Western perspectives and vocabulary that we in Singapore have adopted. In fact, it is unfortunate that Pant's press statement uses terms such as "LGBTI" borrowed from the West, although it is understandable because he was addressing himself to Western media.

The key constituency that needs defending in Nepal is not the "gays and lesbians" we have in mind, drawn from the Western perspective. The one sexual minority that in Nepal has borne the brunt of discrimination and police brutality (which I will come to later) are the meti, a term meaning anatomical males who are effeminate and often cross-dress. Metis can be quite happy as cross-dressing males and may not wish to fully identify as female. Sex-change operations are, for many, not on the cards, either because of cost or because they may not want it. In fact those who do go for castration -- that's the term the Nepalis use -- are called hijra, a separate category from meti. (See box at right).

For identity cards however, the system requires a binary choice between male and female. Those seeing themselves as any other category will face a huge problem, due to the mismatch between their appearance and whatever is the stated gender. Issues concerning passport and travel, access to health services and job opportunities, for example, all depend on the stated gender. What the Blue Diamond Society has been fighting for is for the state to recognise additional classifications for gender on identity cards.

This may explain the statement that "The Court issued directive orders to Nepal government to ensure rights to life according to their own [sexual and gender] identities..."

Beyond discrimination, metis also face threats to life and limb. Inhabiting an in-between zone between masculinity and femininity, metis are seen as a threat to a rigid social order built around notions of male superiority and female submission. They face social ostracism and family violence, as well as gratuitous police brutality. The website globalgayz has documented numerous cases of the latter.

On the night of 3 July 2004, a truckload of police began by taunting 7 metis who were on their way to a disco. The policemen allegedly called out, "Hijras, chakkas, you all should be killed, dirty animal you have anal sex and oral sex, do this to us also." At first, the metis didn't react, knowing that they might be beaten, robbed or raped if they said anything in response. Yet, 5 minutes later, the police truck approached them again, stopped and about 25 30 policemen got out. They set to beating the metis, leaving them hurt on the ground. An hour later, another police van from Durbar Marg, a different police district, came by, but this time the Durbar Marg police took the metis to their police station. The metis were released after 3 hours, but the Durbar Marg officers said they couldn't follow up the case because the assaulters were from Police Headquarters.

A meti showing her injuries

The Durbar Marg team was itself responsible for another beating, on 13 April 2005. Eighteen metis walking at night towards the Thamel district for a New Year's celebration chanced upon policemen beating two other metis. They noticed that a police van parked nearby was from Durbar Marg Police Station, and a witness claimed she saw Inspector Prem Malla, commander of the Durbar Marg police station, giving orders and enjoying the scene from inside the police van. Unfortunately, the 18 were quickly spotted and the policemen came after them as well; in the end, nine were badly hurt and had to be treated at the Bir Hospital. Later, the metis attempted to report the incident at the station, but the police refused them entry.

A very deep problem

The Supreme Court's ruling notwithstanding, you would have surmised by now that the problem goes far deeper than merely the words of the law. Policemen taking things into their own hands to taunt and beat metis and anyone else not conforming to sex roles is not something that will stop just because someone high up says so. After all, assaulting someone was a crime even before the court's recent pronouncement. What Nepal has is really a problem of abuse of power and disregard of the law. As well, there is also a deep cultural issue that shapes how people see their own decisions and actions.

Consider this case: In early 2004, 22-year-old Meera was scheduled to be the bride in a marriage arranged by her family. When Meera refused to marry and attempted to run away with Laxmi, her same-sex partner of two years, Meera's family caught her, poisoned her with herbs, and brought her back home.

On their second escape attempt, the couple made it to the capital Katmandu and found shelter and protection at the Blue Diamond Society. Before long, however, the girls' families kidnapped them. Midway through the seven-hour journey back to the hometown, the women ran away a third time. It took three days on foot, but they made it to Katmandu again where they remain, but they continue to receive threats from family members and live in fear for their lives.

Nowhere in this story does the police make much of an appearance to protect the women.

What has to change before such things cease? Social attitudes certainly, including the whole idea of family control; police willingness to act against forced marriage and kidnap too; but also economic opportunities to liberate women from their families. It's a long, long road.

Yet we should not dismiss the significance of the writ petition and the resulting court ruling. The ever-present menace of police brutality called for immediate appeal to whatever bodies that can help in whatever way. It is still a remarkable achievement that Blue Diamond and associated parties persuaded the Supreme Court to rule in their favour, however difficult it may prove to be to realise the justices' directives in the months and years ahead.

As Sunil Pant himself said, "There were no specific laws to protect the rights of sexual minorities but the Supreme Court's decision has opened the doors to enjoy our rights."

He expects education, citizenship papers and jobs could now be given to people without them having to identify themselves as male or female. However, there was no immediate response from the government to Friday's ruling.

Still, what Blue Diamond has gained is not only a huge moral victory but a legal benchmark that the government and its agencies must answer to. It's a story worth watching.

Yawning Bread 





From this site, you'll find Sunil Pant explaining that sexual, minorities in Nepal identify themselves with a terminology different from that used in the West. For example, effeminate homosexual men are referred to as metis, singarus or kothis, whereas gay or bisexual men who are not necessarily feminine are known as dohoris.

Those who are born biologically male and wish to be female are called hijras. Some undergo castration and join the hijra community.

He added that the sexual partners of metis and dohoris are known as tas, who see themselves as masculine and mostly act like heterosexual males. In fact, they often consider themselves as heterosexuals.

As you can see, Nepalis use a more traditional way of distinguishing the groups. The delineation is based on outward gender presentation (masculine-like, feminine-like) and sex roles in intercourse (penetrator, penetrated). 

This is completely different from the modern way of seeing sexual orientation which is based almost entirely on erotic and romantic attraction -- who you are interested in, rather than what you do or what you look like.