New Delhi: The only country in the Indian subcontinent to legalise same-sex unions, Nepal has for the first time recognised the marriage of a queer couple. This comes five months after its Supreme Court issued an interim order allowing the registration of same-sex marriages in June.
The couple, Maya Gurung, 35, and Surendra Pandey, 27, have reportedly been together for almost a decade and wed in a temple in a Hindu ceremony in 2017. They sought legal recognition of their union this year. Gurung is a transgender woman who has not changed her gender on official documents while Pandey is cisgender (one who identifies with the biological gender one’s born with) male.
Authorities in the Lamjung district in western Nepal formally registered their union Wednesday. While the country is yet to come out with a law on same-sex unions, the Supreme Court in its June order directed for registrations to begin without waiting for new legislation.
Nepal is among 36 countries in the world that allow same-sex marriages. The ball was first set rolling in 2007, when its apex court had ordered the government to end discrimination against the LGBTQ+ community, and guarantee them the same rights as other citizens. Then in 2015, Nepal’s new Constitution and civil code granted the queer community special protections and explicitly disallowed discrimination on the basis of sexual orientation, respectively.
In March this year, the court ordered the government to recognise the same-sex foreign spouse of a Nepali citizen, who had married in Germany. This was followed by the June interim order.
Despite the interim order, in the latest case, the couple’s journey to recognition was not easy. On 13 July, a district court in the capital Kathmandu rejected the union. The Kathmandu court observed that lower courts were not mandated to follow the order as it was only directed at the government.
According to LGBTQ+ rights activist and former MP Sunil Pant, Nepal’s first openly gay lawmaker, the country’s home ministry this week made changes in the process, enabling all local administration offices to register same-sex marriages.
Apart from Nepal, Taiwan is the only other Asian country that has legalised such unions. While India decriminalised homosexuality in 2018, it does not recognise same-sex marriage, ruling against its legalisation less than two months ago.
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Nepal’s history with queer rights
Over the past 16-odd years, Nepal has transformed its legal system after the Supreme Court’s decision in 2007, where the court repealed laws barring homosexuality and reformed numerous laws to explicitly protect “gender and sexual minorities”.
The bench had then also directed the government to legally recognise a third gender category, reform all laws that discriminate against LGBTQ+ individuals, and form a committee to study the legal recognition of same-sex relationships.
As a result, the Nepal government identified roughly a hundred laws that needed to be reformed to remove discrimination.
In 2010, the Election Commission of Nepal added the ‘third gender’ as an option on electoral rolls for individuals who do not identify as male or female. In the consequent year, Nepal became the first country in the world to include a third gender on its federal census.
By 2015, as part of its new Constitution, the government also began issuing passports and government documents in three genders. According to the new Constitution, members of the queer community could acquire a citizenship certificate recognising their gender identity. They were also eligible for special protections by law, and the right to access public services for gender and sexual minorities.
Nepal’s new civil code, introduced on 16 September 2015, consisted of several laws recognising LGBTQ+ rights and explicitly stating that ‘there can be no discrimination on the basis of sexual orientation’.
In early 2015, the government-appointed committee had also released a report recommending recognising same-sex unions as legal, based on the principle of equality. However, while Nepal’s new Constitution addressed LGBTQ+ rights as fundamental rights, it did not legally recognise same-sex marriage.
Over the last decade, subsequent Nepali governments did not form bills recognising same-sex unions, further delaying the process.
In 2017, a queer couple — Suman Panta, a Nepali, and Leslie Luin Melnik, an American — approached the Nepal Supreme Court when Melnik was denied a non-tourist visa. The court ordered the government to issue the visa, observing that if a Nepali citizen submits a marriage certificate confirming the marriage, then the visa cannot be denied to the foreign national.
In the landmark June 2023 ruling, Justice Til Prasad Shrestha directed the government that “although Nepal’s civil code currently describes marriage as being between a man and a woman”, it should place a transitional mechanism to ensure marriage registration of same-sex couples and other non-traditional heterosexual couples.
Building on judgments from 2007 and 2017, the Supreme Court ruled that failure to recognise same-sex spouses violates Nepal’s Constitution and its international human rights obligations.
The order recognised the marriage rights of people based on their gender identity and sexual orientation, and called for required amendments to be made within the provisions on marriage and registered marriages in the current Nepal Civil Code, 2017.
The ruling came on a Public Interest Litigation (PIL) filed by Pinky Gurung, president of the Blue Diamond Society and eight other applicants representing the LGBTIQ+ community, on 7 June 2023. Established in 2001, the Blue Diamond Society is an LGBTQ+ rights organisation in Nepal.
LGBTQ+ rights in Asia
While Nepal and Taiwan are the only Asian countries to recognise same-sex unions, numerous countries in the region have taken steps towards giving equal rights to queer individuals.
Last month, the Indian Supreme Court stated that it does not have the power to modify the Special Marriage Act — a secular law governing inter-faith marriages. A five-judge bench led by Chief Justice of India D.Y. Chandrachud shifted the responsibility to the Parliament to frame a law for extending institutional acknowledgement to queer relationships, adding that the current legal framework does not support such a union.
India decriminalised homosexuality in 2018, while Vietnam declared homosexuality as ‘not an illness’ last year. Singapore too repealed its law banning homosexuality, but amended its constitution to restrict marriage rights to only heterosexual couples.
Taiwan began registering same-sex unions this year and even extended full adoption rights to queer couples. Countries such as Sri Lanka are also moving towards decriminalising homosexuality.
A new survey by US think tank Pew Research Center found that roughly 1 in 2 (53 percent) Indians favour — either somewhat or strongly — the legalisation of same-sex marriages, while 43 percent oppose allowing queer individuals the right to marry.
In Asia, a median of 49 percent supported same-sex marriages from the 12 countries surveyed by Pew — Japan, Vietnam, Thailand, Hong Kong (a special administrative region in China), Cambodia, India, Taiwan, Singapore, South Korea, Sri Lanka, Malaysia and Indonesia.
Across these, an average 43 percent of respondents opposed same-sex marriages with the largest opposition found in Indonesia (92 percent), Malaysia (82 percent) and Sri Lanka (69 percent).
(Edited by Gitanjali Das)
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