The Supreme Court of Nepal Tuesday instructed the government to legally recognize same-sex marriage. They further recommended a five-step plan in order to allow same-sex couples and non-cisgender individuals to get married in line with a 2015 court-ordered report, which has not yet been acted upon by the government.
In the latest of many recent pro-LGBTI (the term most commonly used for the LGBTQ+ community in Nepal) rulings, the court found that failure to recognize same-sex marriage violates Nepal’s constitution and its international human rights obligations. Adheep Pokhrel, a Nepali citizen, and his husband, Tobias Volz, brought the case against the Department of Immigration after the department repeatedly rejected Volz’s application for a non-tourist visa.
Pokhrel and Volz’s marriage was legally registered in Germany because same-sex marriage was not yet legal in Nepal at the time. Therefore, Nepal’s application form for Marriage Visas did not recognize same-sex marriages–meaning Pokhrel and Volz’s relationship did not qualify. However, the Supreme Court in a similar case in 2017, which Pokhrel and Volz highlighted to the Nepali authorities in their second application, ordered the department to grant same-sex spouses the same rights as heterosexual spouses in the application for visas.
In Tuesday’s decisions, the justices upheld this precedent and urged the authorities to grant Volz a non-tourist visa. Furthermore, they wrote that:
Given this background, it appears that same-sex marriage should be considered a subject that is envisioned by the constitution and in accordance with the Constitution of Nepal, the report by the committee formed in accordance with the order by this Court, and the human rights treaties ratified by Nepal.
The Nepalese Constitution of 2015 was expected by some to include the right to same-sex marriage, but after much tumultuous debate, it was not included in the final draft ratified by the Constituent Assembly. It does, however, include multiple provisions pertaining to LGBTQ+ rights. Included among them are listing LGBTQ+ people as a recognized disadvantaged group, the right not to be discriminated against on the basis of gender, the inclusion of gender-neutral terminology, and the right to have citizenship ID that reflects their gender identity.
This last right has been subject to criticism, as in 2007 the Supreme Court ordered the addition of a third gender category of “Other”/”O” (“अन्य”) to represent all non-cisgender identities on official documents. However, the law only allows for gender markers to be changed from “M” (male) or “F” (female) to “O,” with no provisions for transgender people to alter their documents from an “M” to an “F” or vice versa. This, referred to as a “gender trinary,” has been criticized heavily.
Rukshana Kapali, a transgender woman, has been a leading advocate for this cause. Following her writ petition, the Supreme Court issued an order to Election Commission in 2021, ordering them to issue her a COVID-19 vaccination certificate and passport with female gender markers. This was the first legal recognition of transgender people within the gender binary. The Supreme Court is currently considering another case brought by her in which she is petitioning Tribhuvan University’s rejection of her exam registration form following a Nepal Education Board ruling that refused to change her gender on her School Leaving Certificate in line with her other documents.
The Supreme Court has been firm in its advocacy for the government of Nepal to live up to its reputation as a leader in LGBTQ+ rights, and they formally reiterated their recommendation for legal Marriage Equality in their decision Tuesday.
