LGBTQ and Third Gender Rights in Nepal: Legal Protections Explained

In recent years, Nepal has made notable progress in recognizing and promoting the rights of the LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) community. Historically, Nepalese society has been deeply influenced by conservative cultural norms and traditional gender roles, which often led to widespread discrimination, social stigma, and exclusion of LGBTQ individuals. However, the democratic transition and the adoption of progressive legal frameworks have paved the way for greater visibility and advocacy for LGBTQ rights.

Nepal became one of the first countries in South Asia to constitutionally recognize the rights of sexual and gender minorities. The Constitution of Nepal, 2015 guarantees equality, non-discrimination, and the right to identity, laying a legal foundation for LGBTQ inclusion. Furthermore, the Supreme Court’s landmark decision in 2007 directed the government to formulate laws that protect the rights of LGBTQ individuals and legally recognize a third gender category.

1. Supreme Court Ruling: Sunil Babu Pant v. Government of Nepal (2007) – Detailed Explanation

The Supreme Court ruling in the case of Sunil Babu Pant v. Government of Nepal (2007) is considered one of the most significant legal decisions in the history of Nepal’s human rights movement. It marked a major step towards the recognition and protection of third gender rights and LGBTQ+ rights in the country.

Sunil Babu Pant, a well-known LGBTQ+ activist and the founder of the Blue Diamond Society (Nepal’s leading organization working for sexual and gender minorities), along with three other petitioners, filed a writ petition at the Supreme Court of Nepal. The petitioners argued that sexual and gender minorities in Nepal were facing severe discrimination, social exclusion, harassment, and denial of basic rights simply because of their gender identity and sexual orientation.

Demands of the Petitioners

1. Legal Recognition of the Third Gender:Petitioners demanded that people who do not identify as male or female should have their gender officially recognized by the government as "third gender."
2. End to Discriminatory Laws:They sought to remove laws that criminalized or discriminated against LGBTQ+ individuals.
3. Formulation of New Laws:The petitioners requested the development of new laws that would safeguard the rights of sexual and gender minorities and ensure their inclusion in all areas of society.

Supreme Court’s Historic Verdict

• The Court ordered the Government of Nepal to legally recognize the third gender and allow individuals to register their gender identity as "other" on official documents such as citizenship cards and passports.
• The Court stated that sexual and gender minorities should enjoy the same fundamental rights as any other citizen under the Constitution of Nepal, including rights to equality, freedom, and human dignity.
• The Court directed the government to review existing discriminatory laws and enact new legal frameworks that protect LGBTQ+ individuals from violence, discrimination, and exclusion.
• The Court emphasized that all forms of discrimination based on sexual orientation and gender identity are unconstitutional and must be eliminated.

Legal and Social Impact of the Ruling

• It opened the door for third gender registration on official documents.
• It laid the groundwork for the inclusion of third gender rights in the 2015 Constitution of Nepal.
• It empowered LGBTQ+ organizations to advocate more effectively for human rights and equality.
• It placed Nepal among the first countries in South Asia to legally recognize third gender identities.

2. Constitutional Protection of Third Gender Rights in Nepal (2015)

The Constitution of Nepal, 2015 is widely recognized as one of the most progressive and inclusive constitutions in the world in terms of gender and sexual minority rights. For the first time in Nepal’s history, the Constitution formally acknowledged the existence and rights of third gender individuals and guaranteed their equal protection under the law. The Constitution not only provides legal recognition but also ensures access to rights, protections, and opportunities for gender-diverse people. It represents a significant step toward eliminating discrimination and promoting dignity for all citizens, regardless of their gender identity.

a. Right to Equality (Article 18)

Article 18 of the Constitution guarantees the Right to Equality for all Nepali citizens. This provision clearly states that:

• Everyone is equal before the law.
• No one shall face discrimination based on origin, religion, race, caste, tribe, sex, physical condition, health status, marital status, pregnancy, economic condition, language, region, ideology, or sexual orientation and gender identity.

This article is crucial because it legally prohibits discrimination against third gender individuals in all aspects of life, including employment, education, access to public services, and social participation. By including sexual orientation and gender identity as protected categories, Nepal has made it constitutionally mandatory for both government bodies and private institutions to treat third gender individuals equally.

b. Right to Social Justice (Article 42)

Article 42 ensures the Right to Social Justice for marginalized and minority groups, including gender and sexual minorities. This provision mandates that:

• Gender and sexual minorities must be provided with special protection, affirmative action, and targeted benefits to address historical discrimination and social exclusion.
• The state is responsible for creating opportunities and ensuring fair access for these communities in areas such as education, employment, public participation, and social services.

This article recognizes that simply providing equality is not enough; special support and protection are needed to uplift communities that have been oppressed or excluded. For third gender individuals, this means the government must take proactive measures to improve their living standards, provide employment opportunities, and ensure full social inclusion.

c. Right to Citizenship Based on Self-Identified Gender (Article 12)

One of the most groundbreaking provisions for third gender rights is Article 12, which guarantees the Right to Citizenship based on self-identified gender. This means:

• Citizens have the freedom to choose their gender identity on official documents, including citizenship certificates, passports, and voter ID cards.
• Individuals are not required to undergo medical procedures or provide medical evidence to be legally recognized as third gender.

This article affirms the right to self-identification as a fundamental human right, giving third gender individuals legal recognition and identity without bureaucratic barriers. It also ensures that third gender people can fully access government services, travel rights, education, and employment, which were previously limited due to the lack of official recognition.

3. Legal Recognition on Citizenship and Passports in Nepal

One of the most important outcomes of the Supreme Court’s 2007 ruling was the Government of Nepal’s decision to officially recognize the third gender in citizenship certificates, passports, and other legal documents. This was a groundbreaking step that provided third gender individuals with legal identity and formal recognition by the state.

Inclusion of the Third Gender in Official Documents

After the Supreme Court directed the government to protect and recognize the rights of sexual and gender minorities, administrative procedures were amended to include a third gender option—commonly marked as "other"—on:

• Citizenship certificates
• Passports
• Voter ID cards
• Other official records

This change allows individuals who do not identify strictly as male or female to legally choose the third gender option on their identity documents. It has significant social and legal importance because citizenship and passport documents are essential for accessing basic rights and services in Nepal.

The Principle of Self-Identification

A crucial feature of Nepal’s approach is the principle of self-identification.

• Individuals can declare their own gender identity based on personal choice.
• No medical evidence, psychiatric evaluation, or surgical confirmation is required.
• The process is based entirely on what the individual says about their gender identity.

4. National Human Rights Commission (NHRC) and Protection Guidelines for Third Gender Rights in Nepal

The National Human Rights Commission (NHRC) of Nepal is an independent constitutional body established to promote, protect, and enforce human rights across the country. The NHRC has played an essential role in advancing the rights of marginalized groups, including third gender individuals and sexual minorities. Recognizing that third gender people face widespread discrimination and exclusion, the NHRC has taken proactive steps to safeguard their rights and improve their social status.

A. Monitoring Discrimination and Abuse

One of the key responsibilities of the NHRC is to monitor human rights violations. The Commission carefully tracks cases of:

• Discrimination in public institutions, workplaces, schools, and healthcare settings.
• Physical and emotional abuse faced by third gender individuals.
• Denial of access to public services due to gender identity.

B. Policy Recommendations to Government

Based on its investigations and findings, the NHRC often recommends policy changes to the Government of Nepal. These recommendations aim to:

• Strengthen legal protections for third gender individuals.
• Ensure that government offices, schools, and public service centers are inclusive and accessible to all genders.
• Promote gender-sensitive education, health programs, and employment policies.

C. Awareness and Advocacy

The NHRC also focuses on public awareness campaigns to reduce stigma and discrimination. The Commission organizes:

• Training programs for government officials, police, and teachers to improve their understanding of third gender rights.
• Community awareness programs that promote social acceptance of third gender people.
• Workshops and seminars to encourage respectful and inclusive behavior in public spaces.

D. Recognition of the Third Gender as a Vulnerable Group

The NHRC officially recognizes the third gender community as a vulnerable group that faces multiple layers of discrimination: legal, social, and institutional. This classification means that:

• The third gender community deserves special focus, protection, and additional support from both government and society.
• Human rights agencies and law enforcement authorities must give priority attention to complaints and issues raised by third gender individuals.

5. Anti-Discrimination Provisions in Nepalese Laws

Nepal’s progressive legal framework explicitly prohibits discrimination on the basis of gender identity and sexual orientation, ensuring that third gender individuals have equal rights and access across key areas of life. Several laws and policies aim to protect and promote these rights in employment, education, and healthcare.

a. Labor Act, 2017: Employment Non-Discrimination

The Labor Act, 2017 is a fundamental law governing employment rights in Nepal. This Act explicitly prohibits discrimination against employees or job applicants based on their gender identity or sexual orientation. Key features include:

• Employers cannot refuse to hire or unfairly dismiss someone because they identify as third gender.
• Third gender individuals have the right to equal pay, safe working conditions, and workplace dignity.
• The law promotes equal access to job opportunities and mandates employers to create inclusive workplaces.

b. Education Policies: Safe and Inclusive Learning Environments

Nepal’s education policies emphasize the need for a safe and non-discriminatory environment for all students, including those of diverse gender identities. Schools, colleges, and universities are required to:

• Prevent bullying, harassment, and discrimination against third gender students.
• Ensure that curricula and school environments respect gender diversity and do not reinforce stereotypes.
• Provide access to gender-neutral facilities where possible and promote respect among peers and staff.

c. Health Rights: Access to Gender-Sensitive Healthcare

Third gender individuals have the right to access healthcare services without discrimination under Nepalese law and policy. This includes:

• Equal access to physical and mental health services.
• Availability of gender-sensitive and affirming healthcare, recognizing the specific health needs of third gender and transgender people.
• Training healthcare providers to treat third gender patients respectfully and without bias.
• Protection against refusal of service or mistreatment in hospitals, clinics, and community health centers.

Nepal’s laws and policies explicitly forbid discrimination based on gender identity and sexual orientation, providing legal safeguards in employment, education, and healthcare. These protections are fundamental to promoting dignity, equality, and full participation of third gender individuals in society. While legal frameworks are strong, ongoing efforts to implement these protections and raise awareness are necessary to ensure third gender people can live free from discrimination in all areas of life.