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A queer divide

Pratyush Nath Upreti

Recent news from Pokhara, where Parajuli Marg was declared a ‘Chhakka Prohibited Area”—with permission from the Kaski District Administration Office—have yet again brought to light the acceptance of sexual minorities in our society and showed that discrimination by the state continues.

In the case of Sunil Babu Pant & Others vs Nepal Government, the Supreme Court of Nepal made a historic decision, ordering the government to recognise a ‘third gender’ and protect the rights of sexual and gender minorities. Certainly the 2007 verdict gave the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community immense confidence to establish their identity in society. But despite legal recognition, they still suffer from societal discrimination and stigma.

A few weeks ago, I came upon an unread Facebook message from a Nepal-born Australian citizen, who commented on my previous contribution to The Kathmandu Post titled ‘Criminal Love’ (January 7). The ‘gentleman’ is not happy with the decision of the Court. Although he believes that the decision gave LGBTI people legal acceptance of being ‘homosexual’, he opposed the notion of ‘third gender’. If LGBTI people are third gender then who is first and second gender? Is male first and female second gender? Isn’t this another form of discrimination? Or, if ‘male or female’ would be established as first gender, who is second gender? And again, isn’t it discrimination to recognise the ‘homosexual group’ as third gender? What kind of equality is this supposed to be?

Legal matters

There has been strong opposition by LGBTI rights activists against the present Draft Criminal Code on the grounds that this draft attempts to recriminalise homosexuality. The Draft Code does get rid of some provisions that were against LGBTI people. However Article 223 prohibits ‘unnatural sex’. According to that section, any person who commits acts of ‘unnatural sex’ can be jailed for up to three years and fined up to Rs 30,000. The concern here is the use of the word ‘unnatural’. As the section applies to both heterosexuals and homosexuals, the interpretation of unnatural is open and the fear is that it could be used to describe non penile-vaginal sex, which would ultimately recriminalise homosexuality.

Similarly, in the rape chapter, the definition of rape has been narrowed down to only women, which is unacceptable to rights activist. In addition, there are provisions which differentiate between rape and unnatural sex, which again is an indirect attempt to criminalise homosexuality, not by explicit provision but by the inclusion of terms that are subject to biased interpretation against homosexuality.

However, under the present Draft Civil Procedure Code, same sex marriage is not recognised, but more importantly, it is not prohibited either. This is a major change, compared to previous drafts where any marriage other than that between a man and a women was punishable with up to two years imprisonment. So there actually are some positive changes, even while there still exist discriminatory provisions.

In the last Constituent Assembly, the preliminary draft of the Interim Constitution, under the Fundamental Rights and Directive Principles section, had expressly mentioned “equality to any and all persons regardless of colour, sex, race, caste, tribe, gender, sexual orientation or biological condition”. The provision aimed to remove existing societal discrimination, and there’s the hope that such provisions upholding the rights of the LGBTI community will be included in the upcoming constitution and will be effectively implemented. It’s very unfortunate that despite the obligation of the state under the Interim Constitution to not discriminate against citizens based on sex but also to prevent others from performing acts of discrimination, a state authority gave permission to declare Parajuli Marg a ‘Chhakka Prohibited Area’.

Societal acceptance

Last month, the US-based Williams Institute and Blue Diamond Society together released a survey of sexual and gender minorities in Nepal, which was conducted among participants from 32 districts, including individuals from 150 castes and ethnic groups. Sixty percent of the participants reported discrimination or harassment in public settings. Furthermore, the survey highlighted verbal harassment in stores and public transportation. Obviously, Nepal has problems with accepting homosexuality and sexual minorities. The biggest challenge for the community is not to ensure their rights, but to win the hearts and minds of family members and society.

The survey also reveals a ‘bullying culture’ on the basis of sexual orientation in schools, which is a major concern. As citizens—and this goes particularly for the youth—we seek to transform society’s understanding of gender in order to make our country safe for all people, regardless of gender identity or expression. We need to be open-minded enough to discuss this issue based on rational grounds, and not as arch-conservatives.

Eventually, ignoring or denying the issue is not going to change anyone’s identity, so to just hate people for their biology is to hate the human soul. Let everybody live their lives as humans and abide by rational social norms. I believe that a tragic drama like in Pokhara will only promote a culture of discrimination, distrust, and hatred, antagonising the harmonious society at large.

Upreti is a Kathmandu based lawyer
Source: "A queer divide", The Kathmandu Post, 18/11/2014

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