A move by lower courts threatens the country’s promising record on marriage equality.
DONALD PADGETT
OCTOBER 16 2023
Two lower courts in the Himalayan country of Nepal have defied the country’s Supreme Court and refused to issue a marriage license to a couple.
The couple, a transgender woman and a cisgender man, is considering appealing the decision to the Supreme Court, according to Human Rights Watch.
The case involves Maya Gurung, a trans woman who is recognized legally as a man in Nepal, and Surendra Pandey, a cisgender man. The pair were married in a traditional Hindu ceremony in 2017 but have been unable to register their marriage legally at the Kathmandu District Court. The lower court refused the request, stating the marriage exists only between a male and female. Since Gurung is still recognized as a man on legal documents, they couldn't get the registration.
The lower courts have been at odds with an earlier Supreme Court ruling that ordered an interim register for same-sex and non-traditional marriages in the country.
“In their ruling, the high court judges said that because the Supreme Court order named the Prime Minister and Council of Ministers, it was the responsibility of the federal government to change the law before the lower courts could register such marriages,” Human Rights Watch said in a statement. “Nepal’s civil code currently only recognizes marriages between one man and one woman. The Supreme Court attempted to rectify that by ordering the creation of an interim registry for nontraditional marriages until parliament changes the law. The two lower courts are now reversing the logic by claiming that the national law must be changed first.”
Human Rights Watch has noted the Supreme Court of Nepal has been on the leading edge of bringing recognition of marriage equality and protecting the rights of the LGBTQ+ community in the country.
“For about a decade now, Nepal has been a beacon for LGBT rights progress in Asia and globally, due to a series of achievements that started with a resounding 2007 Supreme Court decision in Pant v. Nepal in which the bench ordered the government to legally recognize a third gender category, audit all laws to identify those that discriminated against LGBT people, and form a committee to study legal recognition of same-sex relationships,” Kyle Knight, senior researcher, of HRW’s Lesbian, Gay, Bisexual, and Transgender Rights Program, said in an interview in 2017. “In response to the court’s order, the government identified over 100 laws that needed to be changed to eliminate discrimination against LGBT people.”
Nepal’s civil code still recognizes only binary marriages between a male and female. HRW said the conflicting ruling threatens Nepal’s reputation as an affirming and tolerant country for the LGBTQ+ community.
“By refusing to register same-sex marriages, in spite of the Supreme Court ruling, lower courts are undermining Nepal’s reputation as a legal leader on sexual orientation, gender identity, and human rights, and risk violating the constitutional protections for sexual and gender minorities,” HRW said. “Swift clarity and equality will benefit the couples who want to register their marriages.”
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