Sunil Babu Pant and Others v Nepal Government and Others, Supreme Court of Nepal, [2008] 2 NJA L.J. 261-286

The Supreme Court of Nepal issued a writ of mandamus stating that non-discrimination provisions on the grounds of sexual orientation must be introduced into the Constitution of Nepal. The court stated that all LGBT persons are ‘natural persons’ and that their sexual orientation, gender identity, and expression are all part of natural growing processes. Equal rights, identity and expression must therefore be ensured.

This case was filed by Sunil Babu Pant of the Blue Diamond Society and others on behalf of lesbian, gay, bisexual, transgender and intersex (LGBTI) people. The petitioners requested the issuance of an order of mandamus in order to recognise transgender individuals as third gender, the enactment of legislation prohibiting discrimination on the basis of sexual orientation and gender identity, and reparations for victims of State violence.

The petitioners argued that people of third gender had not been treated equally, in particular because they were not being provided with identity documents that reflected their identity. Consequently, there were deprived of rights and protections under international instruments as well as in national courts.

The court found that it needed to resolve the following questions:

  1. Whether or not the present writ petition filed in regards to the rights of homosexuals and the people of third gender, considered as minority on the basis of gender identity or sexual orientation, falls under the category of public interest litigation (PIL);
  2. What is the basis of identification of homosexual or third gender people? Whether it happens because of the mental perversion of an individual or such characteristic appears naturally;
  3. Whether or not the state has made discriminatory treatment to the citizens whose sexual orientation is homosexual and gender identity is third gender; and
  4. Whether or not an order as sought by the petitioners should be issued.

In regards to the first question, the court found that it did fall under the category of public interest litigation stating that ‘it is a constitutional duty and responsibility of the state to make the deprived and socially backwarded classes and communities able to utilize the opportunity and enable them enjoy the rights equally as other people do.’

With regards second question, the court found that ‘sexual orientation is a natural process in course of physical development of a person including self-experience rather than due to the mental perversion, emotional and psychological disorder.’

The court considered the third question, of whether or not State-sponsored discrimination and ill-treatment occurred against citizens with non-conforming sexual orientations and gender identities and found that such discrimination did occur. In its judgment the court considered the right to non-discrimination and equality enshrined in Article 13 of the Constitution of Nepal and Article 26 of the International Covenant on Civil and Political Rights. The court held that:

‘…the people other than ‘men’ and ‘women’ including the people of ‘third gender’ cannot be discriminated on the ground of sexual orientation. The State should recognize the existence of all natural persons including the people of third gender other than the men and women. And it cannot deprive the people of third gender from enjoying the fundamental rights provided by Part III of the Constitution.’

Finally, the court directed the Government of Nepal to enact legislation which allows people of different gender identity and sexual orientation to enjoy their rights as others do, without discrimination.

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