BACKGROUND:
In the landmark case of Sunil Babu Pant v. Nepal Government (2007), the Supreme Court of Nepal recognized transgender persons and held that they have equal rights as citizens. It also recommended that sexual identity and gender orientation be added as prohibited grounds of discrimination.
In the first Constituent Assembly of 2008-12, Sunil Babu Pant, the petitioner in the case, was a member of the Fundamental Rights Committee. He helped secure LGBTQI+ rights in the Draft Constitution. However, this draft was not enacted. A second Constituent Assembly was constituted and some of the provisions carried over. The Constitution adopted in 2015 is written mostly gender neutral. It also has three Articles which explicitly provide for the rights of transgender persons.
THE ARTICLES:
Article 12 of the Constitution provides that a person who obtains citizenship in Nepal by descent can obtain a certificate of citizenship with their gender identity.
Article 18 provides for the right to equality. It says that no person shall be denied ‘equal protection of the law’ and that discrimination on protected grounds are prohibited. However, the proviso says that this shall not prevent special provisions for the ‘protection, empowerment or development’ of gender and sexual minorities.
Article 42(1) provides for the right to social justice. Specifically, it says that gender and sexual minorities have the right to participate in State bodies based on the ‘inclusive principle’.
SIGNIFICANCE:
Many Articles of the Constitution will be important for transgender rights, such as the rights to freedom, dignity, privacy, justice and socio-economic rights. However, the above three Articles make special and explicit provision for transgender persons. The provision regarding the certificate of citizenship enshrines the principle of self-identifying gender for the purposes of documentation in the Constitution, which transgender people have often struggled to obtain.
The proviso to Article 18 allows for special measures of affirmative action for gender and sexual minorities. Article 42(1) goes further to provide them a right to affirmative action with respect to State bodies. This imposes a constitutional duty on the Government to take transgender rights forward in Nepal. These provisions make the Constitution of Nepal, 2072 (2015) one of the most progressive Constitutions in principle for transgender rights.
Read the Constitution here.