Nepal’s Legal Limitations on Same-Sex Marriages: A Setback for Equality

Nepal Courts Refuse to Register Same-Sex Marriages: Implications and Challenges

Background

In a disappointing and concerning development, two lower courts in Nepal have refused to recognize the marriage of a same-sex couple, in direct contradiction to the Supreme Court’s recent interim order to register such marriages while awaiting legislative change. The couple, Maya Gurung and Surendra Pandey, are now considering seeking redress at the highest court in the land. This case highlights the ongoing struggle for equal rights and the need for comprehensive legislative reform to protect and recognize the rights of the LGBTQ+ community.

The Couple’s Journey

Gurung, a transgender woman legally recognized as male, and Pandey, a cisgender man, held a Hindu wedding ceremony in 2017. They first attempted to register their marriage in June at the Kathmandu District Court following the Supreme Court’s order. However, the court rejected their registration, arguing that it did not have to recognize a couple that did not consist of one legal male and one legal female. Undeterred, the couple then appealed to the Patan High Court, seeking justice and recognition of their union.

The Lower Courts’ Ruling

The judges at the Patan High Court, in their ruling, stated that the responsibility to change the law and allow for the registration of same-sex marriages lay with the federal government, as the Supreme Court’s order specifically named the Prime Minister and Council of Ministers. They argued that until the law is altered, the lower courts are unable to register such marriages, as Nepal‘s civil code presently only recognizes marriages between one man and one woman.

The Supreme Court’s Role

Nepal‘s Supreme Court has long been recognized globally for its progressive rulings upholding the rights of the LGBTQ+ community. In 2007, the court ordered the government to form a committee to study same-sex marriage, and in 2015, the committee recommended granting legal recognition based on the principle of equality. However, successive governments have failed to bring legislation to parliament, resulting in further court interventions.

Earlier this year, the Supreme Court ordered the government to recognize the marriage of a Nepali man who had married a German man. However, the refusal of lower courts to register same-sex marriages, despite the Supreme Court’s ruling, not only undermines Nepal‘s reputation as a legal leader on sexual orientation, gender identity, and human rights, but also risks violating constitutional protections for sexual and gender minorities.

Implications and Challenges

This recent setback raises important questions about the effectiveness of court rulings in advancing human rights in Nepal. While the Supreme Court has consistently upheld the rights of the LGBTQ+ community, implementation has been piecemeal and slow. The failure of the government to pass comprehensive legislation leaves the door open for lower courts to interpret the law in a manner that disregards equal rights.

Furthermore, this case underscores the urgent need for legislative action to rectify the existing legal limitations. Nepal‘s civil code, which only recognizes marriages between one man and one woman, is out of step with the country’s progressive stance on LGBTQ+ rights. The creation of an interim registry for nontraditional marriages was an important step towards rectifying this disparity. However, the refusal of the lower courts to register same-sex marriages until the law is changed exposes the limitations of the interim measure and highlights the urgency for comprehensive legal reform.

The Way Forward

For the couples who wish to register their same-sex marriages, swift clarity and equality are imperative. The government must take action to amend the civil code and remove the discriminatory provisions that restrict marriage to opposite-sex couples only. By doing so, Nepal can reaffirm its commitment to human rights, equality, and its standing as a global leader in LGBTQ+ rights.

In addition, it is crucial for civil society organizations, activists, and advocates to continue their work in raising awareness, promoting acceptance, and advocating for comprehensive legal protections for the LGBTQ+ community in Nepal. The continued engagement of the international community, including human rights organizations, can also play a vital role in supporting these efforts and holding the government accountable for its obligations to protect the rights of all its citizens, regardless of sexual orientation or gender identity.

Conclusion

The denial of recognition for same-sex marriages by lower courts in Nepal is a setback for the LGBTQ+ community and raises serious concerns about the implementation of court rulings in the country. It is imperative that the government takes immediate action to amend the civil code and ensure equal rights for all its citizens. Only through comprehensive legal reform can Nepal fully live up to its reputation as a global leader in LGBTQ+ rights and provide a safe and inclusive environment for its diverse population.

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