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SUNIL BABU PANT VS. NEPAL GOVERNMENT

Read the full judgement here
citation:

Writ No. 914 of 2007

court:

SUPREME COURT, DIVISION BENCH

judges:

Pawan Kumar Ojha J.

KEY FACTS: 

Representatives of the LGBTI community filed a case against the Government of Nepal for excluding gender and sexual minorities. They claimed that gender minorities lacked access to public benefits because they could not obtain citizenship cards on the basis of non-binary gender identity. They argued for legal recognition of LGBTI persons.

ISSUES: 

The Court deliberated on whether LGBTI identities are the result of mental perversions or occur naturally. Further, it considered whether depriving LGBTI persons of their constitutional rights amounted to discrimination and unequal treatment by the Government.

The Government argued that there were no laws which explicitly denied LGBTI persons of their constitutional rights. It stated that the present framework of laws was sufficient to protect their rights.

DECISION: 

In its judgement, the Court recognised LGBTI persons as equal citizens of the nation, eligible to enjoy all constitutional rights. It held that the State was responsible for providing identity documents which reflected a person’s self-declared gender identity. Relying on Nepal’s international obligations, the Court emphasized that LGBTI persons were entitled to the right to non-discrimination and equality.

The judgement outlined the basis of LGBTI identities. The Court defined “sex” as referring to genitalia, and “gender” as referring to the social roles assigned on the basis of sex. It defined “transgender persons” as those who do not conform to traditional notions of “male” or “female”. It also recognised gender fluidity by extending the definition to those who “combine or move between the two”.

The Court stated that gender non-conformity and same-sex orientation were not results of mental perversions or emotional or psychological disorders. Instead, it recognised LGBTI identities as natural. It stated that sexual relations between two adults were a private affair and that the fundamental right to privacy extended to LGBTI persons. It also held that same-sex relations must not be penalized for being “unnatural”.

The Court recommended that the Constitution of Nepal list sexual orientation are gender identity as prohibited grounds of discrimination. It also directed the Government of Nepal to form a committee to explore issues relating to same-sex marriages.

SIGNIFICANCE: 

This judgement was the first in South Asia to recognize the rights of the LGBTI community and introduce the category of “third gender”. International LGBTI community and human rights organizations held Nepal as a beacon for LGBT rights in Asia.