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Nepal must not move backwards on trans rights

Author: Manisha Dhakal

As a trans woman at the helm of Nepal’s leading LGBTQ+ organization, I am proud of how far my country has come. But 20 years since the Supreme Court confirmed our rights and 17 years since the Court ordered the government to allow us our legal gender change, I fear the situation for our community is lurching slowly backward.

In 2004, the Nepal Supreme Court threw out a case attempting to shut down the Blue Diamond Society (BDS), Nepal’s oldest and largest LGBTQ+ rights organization. At the time, I was a volunteer at BDS. We had confidence in the court system, and in 2006, we took a case to the Supreme Court, pushing for our rights as people to be recognized by law. The Yogyakarta Principles—a document articulating how international human rights law related to sexual orientation and gender identity — had been published; we asked the Court to consider ordering the government to apply the Principles in Nepali law.

On the day of the final hearing, I sat in the chamber and listened to the lawyers present their arguments. At one point, one of the justices asked if there was anyone from the sexual and gender minority community in the chamber. I was nervous, but I stood up and told my story. I explained how our lives were difficult because the law didn’t recognize or protect us. I talked about how meaningful this case was for us. I said we deserved to have our rights protected by the government.

In 2007, the Court issued its landmark judgment. It ordered the government to audit all Nepali laws to examine how they discriminated based on sexual orientation and gender identity, to establish a committee to study same-sex marriage possibilities, and to let trans people declare their gender on legal documents. We had won. It was an enormous moment for us.

Today, as executive director of BDS, I travel across Asia and around the world, teaching people how we made changes in Nepal and using Nepal as an example of how litigation can impact social and political changes. But at the same time, at home, I am frustrated at how delays in implementing that decision and some others that followed it have meant that the reality for trans-Nepalis is very different from what the highest court declared it should be.

Nepal is a unique and beautiful country in many ways. One of the fantastic things about the Supreme Court’s action is that it reflected how Nepal had never been colonized by a foreign power. LGBTQ+ communities in other South Asian countries were struggling at the time – and many still do – against British colonial-era laws that criminalized aspects of their lives. India’s Supreme Court famously decriminalized same-sex relations in 2018, seventeen years after the case was filed. Because we didn’t have a colonial history, we could push forward with progressive court orders that led the region on LGBT rights.

But with implementation being so slow and haphazard, we still fight for our fundamental rights. In a new report[[we’ll link Advocate’s coverage]], Human Rights Watch finds that only a tiny number of Nepalis have been able to change their gender on official documents after undergoing medical exams – ones that included doctors touching their genitals to prove they had surgery. Disturbingly, this is all happening without a law or policy on how doctors do these medical processes – invading people’s medical privacy.

Since gender-affirming surgeries aren’t available in Nepal, this means these people have to save money and travel abroad. Our community is largely economically disempowered, so many will never have that opportunity. It also means that trans people who don’t want surgery or who can’t have it for health reasons will never be able to change their legal gender.

The Nepal government should follow the Court’s order and make an accurate, clear, and simple policy to enable trans people to use an administrative procedure to change their legal gender—to male, female, or other—as they see fit. We need to shift this process away from conversations about whether our bodies conform to some idea of what gender should look like and move toward a sense of dignity for us, taking pride in our country being a leader in the global LGBTQ+ movement once again.

Manisha Dhakalis the Executive Director of the Blue Diamond Society. Visit bds.org.np to learn more about the organization.

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Original Article on The Advocate
Author: Manisha Dhakal

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