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Following the signing of a major peace agreement, key political parties in Nepal are scheduled to conclude a constitutional reform process this month. The complicated drafting process and years of preceding negotiations have finally enabled longtime enemy factions, including Maoists, to come to the table together.
Now, the hard-won gains can serve as a regional and global model for inclusiveness.
In an unprecedented move, Nepal is set to recognize third gender individuals.
Thanks to the organizing efforts of a coalition of social movements, the draft constitution stipulates “citizenship rights for third gender individuals” and “bans discrimination based on sexual orientation and gender identity.”
It also calls for “government affirmative action in support of LGBT people” and asks for all legislation to include “gender-neutral language on the rights to work, health, education and marriage.”
In Nepal, inclusion of rights for third gender persons received backing from not only the LGBTI community but also peasant movements, workers’ groups, women’s organizations and indigenous communities.
Capitalizing upon Nepal’s transition from a Hindu state to a secular one in 2006, many long marginalized in Nepal came together in a pro-poor, inclusive movement for democracy.
Openly gay Nepali Member of Parliament Sunil Pant stresses that this popular support for equal rights for LGBTIs in Nepal came largely as a result of the active participation of queer groups, as well as women’s organizations, disabled people and sex workers, in the People’s Movements that brought down the feudal monarchy there.
In December 2007, Nepal’s Supreme Court declared that LGBTI people are “natural people” that “deserve equal rights and opportunities.” The decision directed the government to issue citizenship identification documents accurately stating gender identity, repeal or amend discriminatory laws and form a committee to draft a same sex marriage law.
The latest move towards inclusivity is a landmark step forward for third gender persons not only in Nepal but worldwide. Aside from Nepal, only India officially recognizes at the national level third gender persons - including an “other” category in addition to “male” and “female” in its census.
In Nepal’s May census earlier this year, for the first time people identifying themselves with a third gender were free to state this for the official record. The process revealed that most of the country’s 40,000 census workers still need training about gender identity and that shifts are still needed in attitudes, but inroads have been made.
Formal recognition for third gender persons is consistent with a diversity of gender identity that has always existed and been part of the cultural and social landscape across the South Asian subcontinent. Third gender persons, sometimes referred to as hijras, aravani and jogappa, have long been accorded a clear space in social and cultural life.
Contemporary exclusion and marginalization of third gender persons in South Asia is largely the result of the imposition of British norms and penal codes in the subcontinent during the century of colonial rule that ended in 1947, and the consequent stigmatization of the third gender and of same-sex relationships.
Recognition of third gender persons confirms what feminist and gender theorists have long been positing – that a two-gender system is neither biologically innate nor socio-culturally universal.
In spite of this history, third gender and LGBTI persons in Nepal and worldwide face violence and extortion by the police and general public, social and sexual harassment, cultural stigma, dismissal from their jobs and difficulties finding housing.
Given this, the constitutional call for affirmative action, in addition to legal recognition itself, is critical to achieving rights. For instance, in the past, the Nepali government has pledged to provide free education to boys and girls, leaving out anyone else. Also, previous laws have indicated that marriage is only permitted between a man and a woman.
This is set to change.
As MP Pant observes, "Nepal is going through tremendous transformation -- politically, socially, economically, legally -- so a lot of communities who had no space or voice before have emerged."
Masum Momaya, Srilatha Batliwala and Kathambi Kinoti contributed to research and writing.