The Battle for Equality: Nepal Courts Deny Recognition of Same-Sex Marriages

Nepal Courts Refuse to Register Same-Sex Marriages

Background

Two lower courts in Nepal have recently denied a couple the recognition of their marriage, defying the Supreme Court‘s recent interim order to register same-sex marriages while legislative change is pending. This raises concerns over the protection of LGBTQ+ rights and the adherence to constitutional protections for sexual and gender minorities in Nepal.

The Case of Maya Gurung and Surendra Pandey

The couple, Maya Gurung, a transgender woman legally recognized as male, and Surendra Pandey, a cisgender man, held a Hindu wedding ceremony in 2017. After the Supreme Court‘s order to register same-sex marriages, they attempted to register their marriage in June at the Kathmandu District Court, but their application was rejected. The court argued that it did not need to recognize a couple that did not consist of one legal male and one legal female. The couple then took their appeal to the Patan High Court, which also rejected their registration, stating that the national law must be changed first before such marriages can be recognized.

Supreme Court‘s Attempts for Change

The Supreme Court of Nepal has a globally-recognized track record of upholding the rights of LGBTQ+ people. In 2007, the court ordered the government to establish a committee to study same-sex marriage, and in 2015, the committee recommended legal recognition of same-sex marriage based on the principle of equality. However, successive governments have failed to bring legislation to parliament, leading to further court rulings. Earlier this year, the court ordered the government to recognize the marriage of a Nepali man who had married a German man.

Undermining Nepal‘s Reputation as a Legal Leader

The refusal of the lower courts to register same-sex marriages, despite the Supreme Court‘s ruling, undermines Nepal‘s reputation as a legal leader on sexual orientation, gender identity, and human rights. It also risks violating the constitutional protections for sexual and gender minorities in the country.

Philosophical Discussion

Equality and Rights

The case in Nepal raises important questions about equality and the rights of LGBTQ+ individuals. The concept of equality suggests that all individuals should be treated fairly and without discrimination. Denying same-sex couples the right to register their marriages contradicts this principle of equality and infringes upon the basic rights of LGBTQ+ individuals to be recognized and protected by the law.

Changing Cultural Norms

Cultural norms and attitudes towards same-sex marriages vary greatly across different societies. While some countries have made significant progress in recognizing and legalizing same-sex marriages, others continue to uphold traditional norms that limit marriage to heterosexual couples. In Nepal, the Supreme Court has taken steps towards recognizing same-sex marriages, but the resistance faced from lower courts highlights the ongoing cultural and societal challenges in accepting and embracing LGBTQ+ rights.

The Role of the Judiciary

The judiciary plays a crucial role in safeguarding the rights of all individuals and upholding the principles of justice and equality. In the case of Nepal, the Supreme Court has been at the forefront of advocating for LGBTQ+ rights. However, the resistance faced from lower courts raises concerns about the implementation and enforcement of these rights. It calls for a more cohesive and coordinated approach within the judiciary to ensure consistent protection and recognition of LGBTQ+ rights.

Editorial

The recent decision by two lower courts in Nepal to defy the Supreme Court‘s order and refuse the registration of same-sex marriages is not only a setback for LGBTQ+ rights but also a blow to Nepal‘s reputation as a legal leader on sexual orientation, gender identity, and human rights. The lower courts’ insistence on changing the national law before recognizing same-sex marriages goes against the spirit of equality upheld by the Supreme Court.

It is crucial for Nepal to maintain consistency and unity within its judicial system to fully protect and recognize the rights of LGBTQ+ individuals. The lower courts must adhere to the Supreme Court‘s decisions and implement them effectively and without delay. This will not only uphold the principles of justice and equality but also send a strong message to society that LGBTQ+ rights are fully respected and protected in Nepal.

Advice

To ensure the protection and recognition of LGBTQ+ rights in Nepal, it is essential for the following steps to be taken:

1. Legislative Action

The government must prioritize legislative action to bring about comprehensive legal reforms that recognize and protect the rights of LGBTQ+ individuals. This will require introducing bills in parliament that address same-sex marriage and other related issues. The laws should respect the principles of equality and non-discrimination.

2. Coordination within the Judiciary

There needs to be better coordination and communication among different levels of the judiciary to ensure consistency in the interpretation and implementation of the law. Lower courts should carefully consider the precedents and orders set by the Supreme Court and uphold them without hesitation.

3. Education and Awareness

Efforts should be made to promote education and awareness about LGBTQ+ issues across society. This will help challenge discriminatory attitudes and foster acceptance and understanding. Educational institutions, civil society organizations, and the media can play a vital role in driving such initiatives.

Nepal has made significant strides in recognizing LGBTQ+ rights through the actions of its Supreme Court. However, it is crucial that this progress translates into concrete and consistent change on the ground. The government, judiciary, and civil society must work together to ensure that all individuals, regardless of sexual orientation or gender identity, are treated with dignity and respect under the law.

Swift clarity and equality will benefit the couples who want to register their marriages and contribute to the overall inclusion and progress of Nepal as a society.

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