Nepal has its first legally recognized same sex-married couple

27-03-2024

Pauliina Majasaari

Human Rights Researcher 

Global Human Rights Defence

On November 29th 2023, Surenda Pande, a Nepalese man and Maya Gurung, a Nepalese transgender woman, were officially registered for marriage in the district of Lamjung village council office.[i] They are the first sexual minority couple that has received legal recognition for their marriage in Nepal.[ii] According to Gurung, they will keep fighting for same-sex marriages and to bring equality for individuals of sexual minorities, so that others would not have to suffer like they did.[iii]

In 2007, the Nepal Supreme Court made a groundbreaking judgement pertaining to LGBTQ rights, on the basis of the Yogyakarta Principles (YPs), by ordering the government to form a committee that would study recognition of same sex relationships.[iv] The YPs are cornerstones to assess international human rights laws in accordance with sexual orientation and gender identity.[v] The aim of the YPs is to ensure that the human rights norms of universality and non-discrimination apply to the LGBTQ community in the same way as they apply to other individuals.[vi] In 2015, the committee advised the government to legally recognize same-sex marriages on grounds of the principle of equality.[vii] However, successive governments have failed to present legislation on marriage equality to this day.[viii] Even though the lawmakers have not taken steps towards the legal recognition of marriage for LGBTQ community, the Supreme Court gave an interim order in June 2023, based on which the government was instructed to create a separate register for marriages taking place between individuals of same sex, amongst others.[ix] The aim of the interim order was to grant temporary legal recognition while the Court gives its final judgement on a present marriage equality case.[x] However, evidence states that the officials of Nepal’s government have inconsistently applied the interim ruling of the Court, by refusing to register same-sex marriages as there is no legislation in force on the matter yet.[xi]

In accordance with article 2 (2) of the International Convention on Civil and Political Rights (ICCPR), the rights set within the convention shall apply equally to all individuals without any kind of discrimination, amongst others, based on other status that the individuals hold.[xii] Furthermore, article 23 (2) of the ICCPR sets out the right of all men and women to get married with legal recognition, as long as they have reached marriageable age.[xiii] In line with the aforementioned rights, Principle 1 of the YPs, reaffirms the right of individuals of all sexual orientations and gender identities to enjoy human rights to the greatest extent.[xiv] Additionally, Principle 2 of the YPs, further reaffirms that everyone should be able to enjoy human rights without distinction based on discrimination on sexual orientation or gender identity.[xv] Even though the YPs are not per say binding on the states, they are still derived from binding international human rights treaties and reaffirm the rights set within in relation to sexual orientation and gender identity, and thereby the obligations within the YPs should be highly respected by states of the international community.[xvi]

Therefore, Nepal is greatly working toward its international commitments within the ICCPR as well as the guiding principles within the YPs. Accordingly, the Supreme Court’s judgement and interim order on the legal recognition of same-sex marriages is a great stride towards bringing the rights of the LGBTQ community in line with individuals not belonging to sexual minorities. However, a stricter enforcement of the Court’s orders could be present, due to the lack of some Nepalese officials disrespecting the Court’s judgements. As the right to be married is an integral human right afforded to all within the ICCPR, the Nepalese officials should grant the temporary marriage licences to individuals of LGBTQ community in line with non-discrimination as set within ICCPR and the YPs.

Therefore, the government of Nepal is urged by international actors, such as the Human Rights Watch, to adopt legislation in relation to marriage equality as it would be possible based on the Supreme Court’s decision of 2007.[xvii] Additionally, the Nepalese officials are requested to comply with the interim order of providing temporary legal recognition to same sex couples for marriage.[xviii]

[i] Oliver Browning, ‘Nepal’s first same-sex married couple say next generation ‘will not suffer like we did’’ (Independent, December 1st 2023) <https://www.independent.co.uk/tv/lifestyle/nepal-lgbt-gay-marriage-campaign-b2456857.html>  accessed March 25th 2024.

[ii] ibid.

[iii] ibid.

[iv] Kyle Knight, ‘Did Nepal Achieve Marriage Equality? Not Quite Yet’ (Human Rights Watch, December 14th 2023) <https://www.hrw.org/news/2023/12/14/did-nepal-achieve-marriage-equality-not-quite-yet> accessed March 267h 2024.

[v]  Paula L Ettelbrick and Alia Trabucco Zeran, ’The Impacts of the Yogyakarta Principles on International Human Rights Law Development: A study of November 2007 – June 2010: Final Report’ (September 10th 2010), 2 <https://yogyakartaprinciples.org/wp-content/uploads/2016/10/Yogyakarta_Principles_Impact_Tracking_Report.pdf> accessed March 27th 2024.

[vi] ibid  4.

[vii] Kyle Knight (n iv).

[viii] ibid.

[ix] ibid.

[x] ibid.

[xi] ibid.

[xii] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1967) 999 UNTS 171 .

[xiii] ibid.

[xiv] ‘Principle 1’ (ARC International) <https://yogyakartaprinciples.org/principle-1/> accessed March 27th 2024.

[xv] ‘Principle 2’ (ARC International) <https://yogyakartaprinciples.org/principle-2/> accessed March 27th 2024.

[xvi] ‘Introduction to the Yogyakarta Principles’ (ARC International) <https://yogyakartaprinciples.org/introduction/> accessed March 27th 2024.

[xvii] Kyle Knight (n iv).

[xviii] ibid.