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.
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 Supreme Court of Nepal recognised LGBTI persons as equal citizens of the nation, eligible to enjoy all constitutional rights, including the right to non-discrimination and equality. It held that the State was responsible for providing identity documents which reflected a person’s self-declared gender identity. 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”.
Although the Government argued that there were no laws denying LGBTI persons of their constitutional rights, the Court recommended that the Constitution of Nepal list sexual orientation and 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.
This judgement was the first in South Asia to recognize the rights of the LGBTI community. The court differentiated between sex and gender, and also recognised gender fluidity. It introduced the category of “third gender”. Nepal is recognised as a beacon for LGBT rights in Asia.