Summary

Since the founding of the Blue Diamond Society in 2001 and a groundbreaking victory for fundamental rights at the Supreme Court in 2007, Nepal has been recognized globally for advances for lesbian, gay, bisexual, and transgender (LGBT) rights. A significant focus of Nepali civil society organizing and legal advocacy has been human rights violations against transgender people, and the fight for trans people’s recognition before the law. Activists have used creative strategies that draw on local cultures and international frameworks to gain a foothold in the Nepali legal system and in society.

While early gains, such as Nepal’s pioneering recognition of a third gender category based on self-identification, have garnered widespread praise and made Nepal an important touchpoint for LGBT rights movements elsewhere, implementation remains piecemeal and inadequate. There is no explicit legal option in Nepal to change one’s gender marker to “male” or “female,” and even the procedure for the third (or “other”) gender option is unclear and ad hoc. In addition, as this report shows, interactions between transgender people and the state have become particularly fraught with discriminatory, ill-informed, and harmful medicalized practices.

Following the resounding victory at the Supreme Court in 2007, activists used the judgment to push government agencies to respect their rights. Much of this came about through advocacy for administrative recognition of the third gender category on official documents and in data sets. There was significant progress in this regard, including the recognition of the third gender category in the national census, on citizenship cards, and on passports, among other advances.

But each gain was also met with challenges. The definition of who was included in the third gender category differed across systems and lacked clarity. And when it came to perhaps the most important instance of the state’s recognition of legal gender—the nagarikta or citizenship card—the government ordered local administrative offices to implement it without providing a clear procedure. As a result, a haphazard and para-official process for transgender people to change their legal gender has emerged. This process has no official basis in policy, but rather is carried out according to stereotypes and assumptions by bureaucrats, physicians, and other people in positions of power.

Some people have been able to obtain documents reading “third gender” or “other”; others have been denied entirely, or wrongly told they must have surgery to be eligible. A small number of people have been able to change their documents from “male” to “female,” but doing so invariably involves an invasive and humiliating physical exam in a medical setting. As documented in this report, the process for obtaining legal gender recognition contains troubling elements of medicalization and inappropriate bureaucratic scrutiny of physical characteristics as markers of gender identity; trans people’s experiences of the ad hoc process reveal it is too often confusing, slow, and rife with human rights violations.

International human rights law and medical best practices support the complete separation of medical and legal processes with regard to gender transition. In other words, individuals attempting to access transition-related medical interventions should not face legal barriers, and people attempting to change their legal gender and name should not be required to undergo any medical procedures. The World Professional Association for Transgender Health (WPATH)—an international, multidisciplinary professional association composed of more than 700 members worldwide—“opposes all medical requirements that act as barriers to those wishing to change legal sex or gender markers on documents.” The organization stated that “[m]edical and other barriers to gender recognition for transgender individuals may harm physical and mental health.”

The Supreme Court has been an important venue for advancing the rights of transgender people in Nepal. The Court in Pant v. Nepal (2007) and subsequent cases, including Pant v. Nepal (2017), made significant strides in recognizing the rights of transgender people. Nonetheless, as illustrated by Kapali v. Nepal, a case before the court at time of writing, implementation of the court's decisions has been uneven and fraught with missteps, and the process for obtaining and updating identity documents is in urgent need of clarification and revision. In Rukshana Kapali’s petition to the court, she is asking that the principle of self-identification (or as the court said, “self-feeling”) expressed in Pant v. Nepal (2007) in relation to a third gender category also now be applied to transgender people who want to change their documents to a binary male or female legal gender.

In 2007 when the court issued its first judgment on LGBT rights, it ordered the government to take three steps: audit all laws and scrap those that discriminated against LGBT people; form a committee to study same-sex marriage legislation; and legally recognize a “third gender” category based on an individual’s own self-identification. The judgment in Pant v. Nepal (2007) has been cited by courts around the world, including the Supreme Court of India, courts in the United States considering third gender passports, and the European Court of Human Rights, as a positive example. However Nepali authorities continue to lag in implementing the court’s order to recognize gender identity on the basis of self-identification.

The court’s emphasis on self-identification has echoed through subsequent judgments, which are discussed in this report. In practice, however, trans people in Nepal have met significant barriers when attempting to change their legal gender according to their identity. These barriers include instructions to undergo surgeries that are not available in-country, invasive medical exams to confirm the appearance of their genitals and breasts, and other forms of humiliation and violations of their privacy by government officials.

The principle of self-feeling should be consistently applied, and its application should not allow medical practitioners or bureaucrats to confirm or deny an applicant’s self-declared gender identity. The lack of a clear procedure for self-declaration of gender identity has led to decisions based on the prevailing perceptions among officials rather than the “self-feeling” of the individual concerned. As the accounts in this report demonstrate, trans people who approach different administrative offices are given different advice and instructions, which sometimes contradicts what their peers are told while undertaking the same process elsewhere. One trans woman interviewed for this report said: “The state just throwing in medical steps is a way they think they’re stabilizing something that was confusing, whereas we experience it as yet another barrier and yet another way in which we have to beg for our rights.”

Legal gender recognition is an essential element of a range of fundamental rights—including the right to privacy, the right to freedom of expression, the right to be free from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely.

The Yogyakarta Principles—compiled by a group of experts, including Nepali LGBT rights activist and former member of parliament Sunil Babu Pant—state that each person’s self-defined sexual orientation and gender identity is “integral to their personality” and is a basic aspect of identity, personal autonomy, dignity, and freedom. The principles are clear that gender recognition may involve, “if freely chosen, modification of bodily appearance or function by medical, surgical or other means.” Put simply, the process for legal recognition should be separate from any medical interventions. But if an individual’s personal transition process requires medical support, those services should be available and accessible.

Implementing the right to legal gender recognition is important for transgender people to leave behind a life of marginalization and enjoy a life of social equality and dignity. A shift toward allowing people autonomy to determine how their gender is expressed and recorded is gaining momentum. The law should not force people to carry an identity marker that does not reflect who they are. It should also not force transgender people to undergo unwanted medical procedures to be recognized or achieve any of the other associated rights.

The Nepali government should urgently follow the Supreme Court’s judgments and implement a transparent and quick administrative procedure to change their legal gender on citizenship certificates and all other legal documents and registers.

 

Glossary

A note on terminology:

In English, “transgender” is often used as an inclusive or umbrella term for anyone whose sex assigned to them at birth does not conform to their lived or perceived gender. It refers to people for whom the designation as “female” or “male” on their birth certificate does not align with the gender that they are most comfortable expressing or would express if given a choice. In Nepali, there are several terms that refer to people whose gender identity and expression differ from their sex assigned at birth. This glossary explains them—as widely-recognized English terms—in an attempt to clarify where terms differ or overlap.

Cisgender: The gender identity of people whose sex assigned at birth conforms to their identified or lived gender.

Gender: The social and cultural codes used to distinguish between society’s conceptions of “femininity” and “masculinity.”

Gender Expression: The external characteristics and behaviors that societies define as “feminine,” “androgynous,” or “masculine,” including such attributes as dress, appearance, mannerisms, hairstyle, speech patterns, and social behavior and interactions.

Gender Identity: A person’s internal, deeply felt sense of being female or male, both, or something other than female and male, such as third gender or non-binary.

Gender Non-Conforming: A person who does not conform to stereotypical appearances, behaviors or traits associated with sex assigned at birth.

Intersex: An umbrella term that refers to a range of variations in chromosomes, gonads, and/or genitals that vary from what is considered typical for female or male bodies. A former medical term, “intersex” has been reclaimed by some as a personal and political identity. Intersex is not the same as transgender, which describes individuals whose gender differs from the sex they were assigned or presumed at birth.

Sex: The biological classification of bodies as male or female based on such factors as external sex organs, internal sexual and reproductive organs, hormones, and chromosomes.

Third Gender: A term referring to the gender identity of people who do not identify with male or female gender categories. Third gender categories exist throughout history and across cultures around the world. In Nepal, the term first entered legal and political discourse following the Supreme Court judgment in Pant v. Nepal (2007).

Meti: A term that is believed to have originated in Darjeeling, India, which refers to people assigned male at birth who develop a more feminine gender identity. It has sometimes been used in reference to people who identify as transgender women or third gender.

Hijra: An identity category for people assigned male at birth who develop a feminine gender identity, which has long been recognized culturally, if not legally. Hijras’ traditional status, which included bestowing blessings at weddings, had provided some protection and a veneer of respect. But rather than being viewed as equal to others before the law, they were regarded as marginal.

Transgender: The gender identity of people whose sex assigned at birth does not conform to their identified or lived gender. A transgender person usually adopts, or would prefer to adopt, a gender expression in consonance with their gender identity but may or may not desire to alter their physical characteristics to conform to their gender identity.

Transgender Men: Persons designated female at birth but who identify and may present themselves as men. Transgender men are referred to with male pronouns.

Transgender Women: Persons designated male at birth but who identify and may present themselves as women. Transgender women are referred to with female pronouns.

Recommendations

To the Ministry of Home Affairs

• Consistently oppose the introduction of “medical proof” clauses in drafts laws and policies related to citizenship.
• Issue a clarifying directive, in line with international human rights law and global medical best practices, that no medical proof should be required for Nepalis to change their legal gender.
• Work with civil society groups to create a transparent and quick procedure for processing paperwork related to legal gender change, which would end extreme delays, as an interim measure while appropriate and rights-respecting legal gender recognition policy is created.

To Members of Parliament

• Develop a law, with the input of civil society groups, that enables transgender people to be recognized according to their self-defined gender identity and to change their legal name and gender without any medical requirements.
• Ensure that transgender children are not excluded from the possibility of applying for legal recognition of their gender identity, in recognition of the fact that it may be in the best interests of some transgender children to change their legal gender before the age of majority.
• Design the relevant procedures in line with Nepal’s obligations under the Convention on the Rights of the Child to acknowledge that, as children grow and acquire capacities, they are entitled to an increasing level of responsibility for and say in the regulation of matters affecting them.

To the Ministry of Health

• Update all healthcare policies that affect transgender people so they align with the World Professional Association of Transgender Health (WPATH) Standards of Care-8,[1] which were set by international health and medical experts for healthcare systems to provide the best possible care for transgender people.
• Publicly support the creation of procedures through which transgender people in Nepal can change their legal gender on the basis of their own self-declared identity. The ministry should clarify that according to international health and human rights standards, medical evidence is not required for legal gender recognition.
• Ensure that transgender people have access to the medical and psychological assistance and support they need, regardless of whether they pursue medical steps or a legal gender change, and that such assistance and support is affordable and available within a reasonable time.
• Ensure, in consultation with transgender people and civil society groups, that health insurance schemes cover all medical interventions related to gender transition.
• Provide training to health service professionals, including psychologists, psychiatrists, general practitioners, and social workers, regarding the specific needs and rights of transgender persons and the legal and ethical requirements to respect their dignity.
• Conduct a rigorous and independent investigation into human rights abuses in the ad hoc legal gender recognition process in various parts of the country, including violations that take place in medical settings such as Bir Hospital.

To the Nepal Medical Council and Nepal Medical Board

• Work with WPATH to adopt the WPATH Standards of Care as the Nepal Medical Council’s care standards, and train providers on these standards.
• Undertake consultations with transgender community leaders and endocrinology experts to discuss and understand how to provide hormone therapy to transgender people in a manner that supports their access to desired therapies and to ensure safe and effective monitoring of these medications.

To the National Human Rights Commission

• Working with civil society groups, the National Human Rights Commission should launch a rigorous and independent investigation into human rights abuses in the ad hoc legal gender recognition process in various parts of the country, including violations that take place in medical settings such as Bir Hospital.

 

Methodology

Human Rights Watch conducted the research for this report between August and December 2022. A researcher interviewed 18 transgender people who had attempted to change their legal gender or had not undertaken the process due to various barriers, as well as activists who help others undertake the legal gender recognition process. In addition, the researcher accompanied a trans woman during her “medical verification” visit in a hospital in Kathmandu, at her request and after a thorough discussion about comfort and security considerations with her and another activist accompanying her for the procedure.

Interviews were conducted in English and Nepali, with an interpreter when necessary. All interviews had the full informed consent of participants who were informed that they could stop the interview at any time or decline to answer any questions they did not feel comfortable answering. All interviews were conducted in private, except for one group interview with interviewees who had indicated they preferred to speak in this manner. Most of the names in the report are pseudonyms, unless interviewees explicitly asked Human Rights Watch to use their real names because they are already well-known and their experience was shaped in part by their public profile.

Human Rights Watch reimbursed transportation costs of interviewees who traveled to meet researchers in safe locations outside their homes or offices. No compensation was paid to any interviewees.

Human Rights Watch wrote to the Ministry of Health and Population, and the Ministry of Home Affairs regarding the findings in this report, in May 2023. The letters are included as appendices to this report. At the time of publication, we had not received a response.

Background: Nepal’s LGBTI Rights History

In a 2009 report about LGBT rights movements globally, Human Rights Watch wrote that Nepal’s early successes were inspiring activists across South Asia. It lauded the tenacity, creativity, and effectiveness of the first eight years of organized Nepali LGBT rights activism:

Nepal’s leading LGBT group negotiated the thickets of HIV/AIDS funding, found its own path from service provision to political advocacy, and changed the country. ‘We started with health intervention,’ they recount, which was ‘a way to reach out to the larger society in a non-threatening manner.’ With the information collected through outreach they began documenting and publicizing human rights abuses, ‘letting the world know what kinds of violations sexual and gender minorities faced.’ Political interventions grew out of that, as they ‘took to the streets, began to lobby political parties, and even participated in elections,’ as well as ‘took the government to court.’ They persuaded the country’s Supreme Court to mandate protections in law for sexual orientation and gender identity—and the group’s founder [from 2008 to 2012] served in parliament.[2]

In celebrating the successes of LGBT rights activists in Nepal, Human Rights Watch joined dozens of other global institutions in holding the country up as a success story.[3] However, legal progress has stalled. Astraea Foundation, a global donor organization, cautioned in a 2022 report that “Nepal cannot rest on praise from the international community promoting it as a bastion of progress on LGBTQI+ rights.”[4] Continued advancement of LGBT rights remains crucial, however, as the Prevention Collaborative and UN Women-Nepal explained in 2020: “Translating the Supreme Court rulings into a legal framework that guarantees inclusion and protections is slow-paced and hindered mainly by bureaucracy and dominant patriarchal institutional and social culture.”[5] Legal scholar Mara Malagodi observed in a 2023 paper: “Legal reforms towards greater gender inclusion are often resisted by [Nepali] state authorities in the name of protecting the nation’s autochthonous social values and religious traditions to legitimize patriarchal and heteronormative forms of exclusion.”[6]

Among other unrealized promises, Nepal lacks a comprehensive and rights-based procedure for transgender people to change their legal gender. A third gender, or “other,” category is available to trans persons, but in some cases applicants for the third gender category are requested to provide medical evidence of transition. There is no explicit legal option to change gender markers to “male” or “female” without undergoing a full surgical transition, and even then, the administrative procedure is unclear and ad hoc.

In addition, as this report shows, interfaces between transgender people and the state have become particularly fraught with discriminatory, ill-informed, and harmful medical practices. The history of gender and sexuality activism—as well as legal progress and regress—in Nepal sheds light on the potential for further change and underlines the actions the government should undertake to fulfill its international human rights obligations. As Bhumika Shrestha, a leading trans advocate in Nepal, said: “After 20 years of LGBTI rights advocacy in Nepal, we are just spreading our wings now—we have really just started.”[7]

Claiming Space for LGBT Rights Groups

In the 1990s, some queer people held informal discussion groups about sexuality in Kathmandu, but their efforts were unfunded and ultimately ephemeral in terms of organizing.[8] It was not until 2001 that human rights activism focusing on sexual orientation and gender identity began in earnest in Nepal with the founding of the Blue Diamond Society (BDS).[9] According to Sunil Pant, BDS’s founder, “The clerk at the office looked at the papers and said he could only register the organization if its goal was to convert people back to heterosexuality.”[10] Because of this BDS was registered as a “sexual health” nongovernmental organization (NGO).[11]

At the time, the country was embroiled in an increasingly violent civil war, which began in 1996, and Kathmandu was frequently under curfew. For sexual and gender minorities, including gay and trans sex workers, this meant increased policing of public spaces where they typically gathered.[12] In 2005 and 2006, Human Rights Watch documented repeated attacks on trans and queer people by security forces, calling the pattern a “sexual cleansing drive.”[13]

BDS came into existence a decade after the 1990 reinstallation of multi-party democracy, which had increased space for civil society and introduced a constitution that would become a battleground for minority rights.[14] And it gained its foothold in a rapidly changing civil society sector, influenced by changes in donor priorities in the 1990s and the international apparatus responding to the civil war.[15]

The decade saw international donors shift away from supporting the government’s work on social services and poverty alleviation to supporting NGOs that took up the mantle.[16] Like elsewhere, Nepal received an influx of HIV/AIDS funding. While there were 114 known cases of HIV in Nepal in 1992, the American Foundation for AIDS Research, a major donor, received applications from more than 80 Nepali NGOs that wanted to work on AIDS.[17] Anthropologist Stacey Pigg wrote: “Attention to AIDS therefore [came] to mean, in a very practical sense, an attention to the sexual activities and sexual consciousness of Nepalis in the name of disease prevention.”[18]

Judicial Victories for LGBT Rights

As BDS and its HIV-related activities grew, its formal status as an NGO coupled with public visibility provoked legal challenges and opportunities.[19] On June 18, 2004, a private lawyer petitioned the Supreme Court to shut down BDS. The petition accused the group of trying to “make homosexual activities legal” and demanded it be banned because the lawyer claimed that same-sex conduct was criminalized in Nepal under a vague provision in the law.[20] However, the Supreme Court registrar rejected this claim and the petition because:

From a study of relevant legislation and documents, in relation to the registration of this petition, it did not seem that the sexual activities conducted by adult homosexual persons, in private or personal locations, could become a subject for criminal law. Against Nepal’s current legal scenario, the issue raised by the petition is not found to be a matter of public concern....[21]

But the lawyer refiled the petition immediately, arguing that Nepal’s National Code (the Muluki Ain, which is a combined civil and criminal code re-issued in 1963) did indeed criminalize same-sex conduct.

The Muluki Ain of 1963 referenced aprākṛtik (unnatural) sexual acts and outlaws them, but it does not enumerate those acts. The petitioning lawyer contended that the clause covered same-sex conduct and that BDS’s activities therefore promoted illegal behavior. The court accepted the second petition and asked the government to clarify whether the phrases in the Muluki Ain included same-sex conduct.[22]

The government entities named in the petition responded. The Ministry of Home Affairs denied the petitioner’s argument, saying “there is no clear legal provision to take action against homosexual persons under Number 4 of Bestiality.”[23] The Kathmandu District Administration Office responded with identical language. The cabinet secretary wrote on behalf of the Prime Minister and the Council of Ministers: “The writ petition is worthy of annulment.” The Ministry of Law, Justice, and Parliamentary Affairs said that in no way had the ministry or this law violated the petitioner’s rights, so the petition should be dismissed. After several delays and as the country plunged into increased political tumult, including the then-king declaring martial law, the court ultimately refused to entertain the petition in 2006, setting the stage for BDS to return to the court with proactive demands.

In Sunil Babu Pant and others v. Nepal, filed in 2006, LGBT rights activists exercised a new and important tool: the Yogyakarta Principles.[24] These principles—formally the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity—had just been published, and one of the co-authors was BDS’s founder, Sunil Babu Pant. The Yogyakarta Principles are an interpretation of International Human Rights Law as it applies to sexual orientation, gender identity and expression, and sex characteristics. Sunil Pant and his co-litigants petitioned the Supreme Court to recognize the Yogyakarta Principles in Nepali law.

The case was novel and complex for everyone involved. Advocate Hari Phuyal (now a Supreme Court justice) represented the LGBT groups with advice from two Indian lawyers, Arvind Narrain and Vivek Divan. On the day of the final hearing, the lead justice, Bala Ram KC, asked the chamber if there was anyone who could speak from personal experience about being a sexual or gender minority. A young trans woman, Manisha Dhakal, shared her story, as chronicled in a magazine article:

“I was born male and have a male body and a male name from my family, but that is not how I feel.” She spoke about police abuse and the humiliation of carrying citizenship documents that listed her [sex assigned at birth]. She talked about LGBTI people being harassed at school and dropping out, resulting in [economic marginalization]. “You can see my hair is a little bit long and some of my clothing is for me and some for women,” she said. “This is because my family does not know about my identity. I leave my house in the morning looking like a son, but when I get to the office I wear a shawl and put on a little bit of make-up and I let my hair down like this. This is my reality.”[25]

The court’s final judgment, written by Bala Ram KC in 2007, required the government to legally recognize a third gender category based on the self-identification of the individual, audit all laws to identify those that discriminated against LGBT people, and form a committee to study legal recognition of same-sex relationships.[26]

In response to the court’s order, the government identified more than 100 laws that discriminated against LGBT people. A government-appointed committee then issued a report in early 2015.[27] While it contained some regressive analysis of the nature of the family and sexuality, it effectively recommended the legal recognition of same-sex relationships. But such post-judgment efforts did not gain as much prominence or traction as the court’s order that the government legally recognize a third gender category.

Within weeks of the Court’s ruling, Richard Bennett, the representative of the Office of the High Commissioner for Human Rights (OHCHR) in Nepal at the time, called the judgment “truly a ground-breaking decision on gender identity and sexual orientation in South Asia and perhaps worldwide.”[28] Courts around the world have referenced the case. For example, courts in the United States[29] and India,[30] as well as the European Court of Human Rights,[31] have cited Pant v. Nepal (2007) in their consideration of comparative law on how to recognize transgender people’s rights.

By 2010, the Election Commission had added the third gender option to voter rolls,[32] and a third gender box was added to immigration forms for tourists soon after.[33] In 2011, Nepal became the first country to include a third gender option on its federal census. In the end, some who wanted to were not allowed to identify as third gender, [34] and because the number of third gender entries was so small  the Central Bureau of Statistics processed no data from people who reported as third gender.[35] And in 2015, the government started issuing passports that recognized three genders.[36] That same year, Nepal became the world’s tenth country to specifically protect LGBT people in its constitution.[37] Dhakal, who spoke up that day in court in 2007, became the executive director of BDS in 2015 and is an internationally-recognized human rights campaigner.

Legal scholar Mara Malagodi noted:

In Nepal, the women’s and queer movements have concentrated their efforts first on strategic constitutional litigation anchored in international standards to unhinge deep-seated forms of legal discrimination. They have succeeded in building an impressive body of pro-women and pro-SGDP case law since the early 1990s.[38]

Nepal promulgated a new constitution in September 2015. Article 18 explicitly prohibits discrimination against “gender and sexual minorities,” but this phrase is not defined anywhere in the constitution. Article 42, on the right to social justice, states that “gender and sexual minority groups” have the right to employment in state entities. Article 12 of the 2015 constitution also includes a provision for issuing citizenship documents “by descent on the basis of gender identity.”

Citizenship and Gender in Nepal

Nepal’s constitution guarantees equal rights to men and women and prohibits gender-based discrimination. It also contains provisions that discriminate against women by limiting their ability to confer citizenship to their children.[39] According to Article 11(7) of the constitution, Nepali men can automatically confer citizenship to their children by descent, but Nepali women must prove that her child’s father is Nepali or declare he is “unidentified.” If such a declaration is proven false, the woman would face prosecution.[40] This issue has been embattled through successive governments, in particular around the much-debated Nepal Citizenship Act (Amendment) Bill in recent years.[41]

As significant as the changes to include a third gender category were, the lived experience of trans people in Nepal by and large remains a struggle unsupported by government entities. Definitions of the “third” or “other” gender vary from one ministry or policy to another, and trans people seeking to change their documents have often had their experiences dictated more by the personal preferences and biases of the officials they interacted with than by the letter of the law. Meanwhile, the emphasis of the Supreme Court on the third gender category and related implementation do not accommodate trans people who want to change their gender to “male” or “female”, and not “third” or “other.”

While the Supreme Court has continued to issue judgments that set out procedures for legal gender recognition, the implementation of legal gender recognition for trans people across the country has instead been influenced by contested and confusing definitions, loose accountability, and some high-profile cases in the media.

Over time, authorities began deferring to medicine and medical practitioners to “verify” the sex and gender of trans people even though this process was never explicitly written in policy. Dipeksha M., a trans woman in Kathmandu, described to us why these issues emerged and persist:

Some of the misunderstanding and confusion we’re seeing from officials is the fallout from the early activist emphasis on the third gender category. It opened up space for discussions and rights gains, but it also really cemented that trans people aren’t male or female, and it can be hard to undo that. And so the government, when confused and under pressure, just defaults to medicalization because it’s perceived as neutral and prestigious. And if a doctor says I’m a woman, then the state can just shrug and say it’s not their fault.[42]

This creeping medicalization has created an ad hoc and harmful pathway to legal gender recognition in Nepal. This para-official process where trans people are subjected to the scrutiny of bureaucrats and physicians to “prove” they are transgender is antithetical to the Nepal Supreme Court’s orders, international human rights law, and international medical best practices, which center self-identification; this processneeds urgent reform and regulation. Clarity around definitions and procedures, as well as explicit protections against human rights violations are needed to guide what is already a difficult and fraught process for trans people.

Dipeksha M. attributed the challenges faced by trans people to the lack of governmental accountability and patriarchal systems:

I don’t think the government is actively trying to harm us, but there’s very little accountability in the administrative state. And it’s steeped in patriarchy…. Marginalized people just feel it more because we need these profoundly dysfunctional systems to actually function or we can’t live our lives.[43]

Intersex Rights Advocacy in Nepal In its concluding observations on Nepal in 2016, the UN Committee on the Rights of the Child recommended that the government raise awareness about intersex people, ensure intersex children have access to identity documents that allow them to self-declare their gender, regulate the use of medically unnecessary “normalizing” surgeries, and train medical personnel on sexual and gender diversity. In its concluding observations on Nepal in 2018, the CEDAW Committee recommended that Nepal “[a]dopt legislative provisions that explicitly prohibit the performance of unnecessary surgical or other medical procedures on intersex children before they reach the legal age of consent and train medical and psychological professionals on the rights of intersex persons.” These two significant interventions by human rights treaty bodies were largely the result of assiduous advocacy undertaken by Esan Regmi, an intersex person and activist in Nepal whose personal story has received widespread media attention as he attempts to raise awareness about how children born with variations in their sex characteristics are misunderstood and mistreated. When he was 20, Regmi came across LGBTI organizations and information on the internet and began to understand that he had been born with an intersex variation. He had been assigned female at birth; his family, not understanding what was happening with his body as he went through puberty, had sought medical attention in India, but physicians there told them there was no “cure” and to hand him over to hijra communities.[44] “It occurred to me that there may be many others like me in the country who, just like me, had no access to information in their language and stayed hidden in society. I realized that I needed to raise my voice because I did not know anything about intersex until this time,” Regmi said in an interview.[45] In 2017, Regmi registered an NGO called Campaign For Change (CFC), and formalized his activism. Legal gender recognition has been a major focus of CFC’s efforts, as intersex people in Nepal struggle—much like trans people—to change their legal gender on citizenship documents. “Many intersex people are stuck in the middle when it comes to legal documentation. People think we are frauds because our details don’t match our gender identity,” Regmi said.[46] Click to expand Image

 

Creeping Medicalization of Legal Gender Recognition

[The government official told me:] ‘Only a physician can tell us if you are really a sexual and gender minority community member.’

—Raju B. (pseudonym), Kathmandu, December 11, 2022

Having to come out repeatedly and explain and justify yourself to a hospital clerk or administrative staffer in a public setting with dozens of people who could listen in—it’s exhausting and terrifying.

—Dipeksha M. (pseudonym), Kathmandu, December 11, 2022

In recent years, medicalization has been creeping into the para-official processes for trans people in Nepal seeking to change their legal gender to male or female, and also to those seeking documents that identify them as “other” gender. Sarita L., 34-year-old trans woman in Kathmandu, told Human Rights Watch:

There is this unwritten rule these days that if you have done sex reassignment surgery, you can go to the Nepal Medical Board and they will give you a recommendation letter, then you take that to your Chief District Officer and re-apply for citizenship. You have to do so much personal begging and lobbying to make it happen—we have to beg so many people.[47]

The “unwritten rule” Sarita describes above, and which this report documents further, colors the lives of trans people in Nepal today. The fact that gender-affirming surgery—and more specifically genital surgery—could allow a person to change their legal gender to male or female (and not have to choose “other”) appears to have been popularized following a high-profile public transition of Caitlin Pant, the child of a famous comedian.[48] Interviewees attributed the uptick in interest in gender-affirming surgeries over the past decade, as well as the shift in popular understanding of gender identity to a more medicalized concept, to Caitlin Pant’s public transition and acquiring of citizenship documents that identified her as “female” following surgery in Bangkok.

The medical paradigm became quickly embedded, with activists publicly noting as early as 2013 that government officials were demanding letters from doctors for trans people to change their legal gender.[49] By 2019, discussions around amending the citizenship law featured arguments for including a “medical proof” clause for legal gender change in the new law.[50] While the medicalized paradigm is most consistently applied to people seeking binary legal recognition as male or female, Human Rights Watch documented accounts of people seeking third (or “other”) gender legal recognition also being asked by authorities for medical evidence.

Interviewees’ experiences illustrate the gravity and complexity of categories on identity documents, of bureaucratic hurdles and privacy rights violations, and of the impact of the creeping medicalization of legal gender recognition.

For some trans people, including those who had tried multiple times to change their legal gender to “other” in accordance with the 2007 judgment in Pant v. Nepal, the creeping medicalization established an additional hurdle. For others, it created a prohibitive barrier, leaving them in the lurch as their documents undergo years-long processing. And for everyone who was compelled to undergo a medical verification procedure, the new para-official procedure resulted in them being subjected to unnecessary, invasive, and humiliating interventions that violated their rights to privacy, health, and bodily autonomy.

Medicalization of the legal gender recognition process is not the sole barrier, but it is a significant impediment in an already discriminatory system. “Even if you take out the medicalization part of this so-called process, it’s still a horrible, difficult, cumbersome process full of human rights violations,” said Dipeksha M. She continued:

So the state just throwing in medical steps is a way they think they’re stabilizing something that was confusing, whereas we experience it as yet another barrier and yet another way in which we have to beg for our rights.[51]

Bhumika Shrestha, 32, a well-known trans woman activist and politician, explained that she had carried three different gender markers in the past decade: “Male,” “Other,” and “Female.” Her experience with the processes of changing her gender markers and then navigating public spaces, illustrates the need for a transparent and accessible legal gender recognition procedure and a more comprehensive approach to recognizing legal gender across systems.

In 2012, Shrestha went to the District Administration Office (DAO) in Kathmandu to request a change to her legal gender on her nagarikta:

I approached the officer there and asked him to provide me with appropriate ID because I looked like a woman but I still had my nagarikta with a dhaka topi (a hat traditionally worn by some Nepali men, including in official photos) and a male name.[52]

Her request was denied, so in 2015, Shrestha tried again. “The real problem for me is that my nagarikta had my birth name and a male photo. So I put in my request and told them this ID was giving me employment issues,” she said. Bhumika continued:

The DAO officials told me they would change my photo and give me the “other” marker but that it was impossible to change my name. So I did that, then I changed my passport right away. That year, I traveled to Delhi and to Taipei and both places had no problem. In India they ticked “T” [for transgender] based on my “O” documents; in Taiwan they gave me an “X” [for indeterminate] in the gender box. But in Kathmandu, there were problems. At the airport, they couldn’t decide what box to tick for me or which security queue I belonged in—it was humiliating to have them debate this in public. This was just the beginning for me with “O” documents, but it kept going like this—lots of queries everywhere I went, lots of extra waiting for verification because officials looking at my documents had never seen one like this before.[53]

Frustrated, Shrestha decided to approach the DAO again in 2020. “This time, I went with my SRS [sex reassignment surgery] papers and asked for ID that has my name Bhumika on it,” she said. “They told me they’d had a few other people recently come with SRS and ask for gender change and to come back in a month. When I went back, it was a different official, but he told me the same thing, and he said the medical verification process was compulsory.”[54]

The DAO forwarded Shrestha’s request to the Medical Board, and the Board asked her to come for a physical exam. She recounted:

At Bir Hospital,[55] I met with doctors. I showed them my surgery documents; they said it wasn’t enough. They wanted to see my body. It was so humiliating. There was a female nurse with me. They told me this was to prevent abuse from male doctors. I understand that, but the fact that they said it to me like that made me feel even less comfortable. The doctor started feeling around my groin, he said, “to make sure everything is in the right place.” He also told me that if I had a flat chest, he couldn’t consider me a woman.[56]

Shrestha was humiliated. She described her feelings during the experience:

The way the process works with the Medical Board makes us uncomfortable. It was very intimidating to get naked in front of a bunch of strangers. And this is how it is being applied in all the bureaucracy—they send us all to medical exams even though the Home Ministry has endorsed the concept of self-identification.[57]

DAO officials received the Medical Board’s report and summoned Shrestha for a meeting. “They told me they could only change my name from Kailash to Kailashi, but not to Bhumika,” she said.[58] “But I told them that I was too famous under my name [Bhumika]—in politics and on television—for them to give me another fake name. So they gave me Bhumika.” At that time, Shrestha’s main issue with her nagarikta was the male name and photograph, not the gender marker, so she never requested that they change it. However, when she received her new nagarikta three months later, it listed her legal gender as “F.” She accepted it and was happy with the speed with which her case had been resolved, although she attributed it to her status:

I got my new ID in three months; I know people who are still waiting after three years. It just worked out for me because of my public profile—the officials didn’t want to look bad by failing in my case.[59]

Shilpa Chowdhury, a 39-year-old trans woman from Dang district, told Human Rights Watch a similar story. She was happy with her “O” document, but officials said she needed to undergo gender-affirming surgery in order to change her name. When she did the surgery, they changed her name and her legal gender to “F.” Chowdhury felt that her political connections and reputation helped ease the process for her.[60]

However, as Shrestha emphasized, the nagarikta is not the only paperwork: “Changing [your] nagarikta is important, but just having one document changed doesn’t mean you’re finished—there’s all the other ones, then there are the forms that the people checking your documents need to fill out.”[61] Other interviewees, including Rukshana Kapali, whose case at the Supreme Court is detailed later in this report, stressed similar issues in comprehensively changing their documents.

For Sarita L., undergoing gender-affirming surgery in India in 2020 led her to seek a medical verification exam at Bir Hospital, a government hospital in central Kathmandu, in 2021. “Other people I knew had gone through it and said it was fine, not great but fine, so I just decided to get it over with,” she said. Sarita had asked to be seen by only one doctor, but once she entered the clinic room, two others came in. “I didn’t like it, but I thought they were doctors, so I had to do what they wanted.” The plastic surgeon overseeing the first part of her exam called in his colleagues to observe: eight in total. “I felt like I had to do it, let them touch me, let them watch. A woman doctor put her fingers in my vagina and when I winced in pain, she removed them,” she said.[62] After that experience, she stopped pursuing the subsequent steps in the administrative process and has not been comfortable seeing a doctor since then.

Dipeksha M., the 26-year-old trans woman in Kathmandu, described how despite undergoing gender-affirming surgeries and acquiring all of the supposedly required documentation for medical verification, she still faced significant hurdles in the process.[63] Dipeksha first submitted her documents to the Medical Board at Bir Hospital for verification. After following up daily with the office, she was told three weeks later to come and collect the documents. She said:

I had to put my legal name on the registration list with the clerk, so when they called me to see the doctor, they were calling my deadname. It was the first time I got deadnamed[64] in a long time, and the first time following my surgery, so that was quite jarring. [65]

The officials handed her back her documents, which were stamped “Certified.” Next, she had to undergo medical exams. The first was with a plastic surgeon. The senior plastic surgeon was not in that day, so she was told to come back in a week. “When I went back, I did get to meet that senior doctor, but I had to insist that a woman nurse be in the room, which seemed to irritate him, but he didn’t resist,” Dipeksha said. [66] The nurse inspected Dipeksha’s genitals before the doctor did as well, although the doctor did not touch her during the exam. “Having to come out repeatedly and explain and justify yourself to a hospital clerk or administrative staffer in a public setting with dozens of people who could listen in—it’s exhausting and terrifying,” she said.[67]

Following the exam, Dipeksha took the medical paperwork back to the Medical Board, but the clerk said the meeting was going to be delayed, so she should come back the following week. She returned prepared to wait it out.

I brought my laptop and some books and just did work sitting there, refusing to leave. I’m tall and I speak English and own a laptop—that signals something to the officials that they should take me seriously. Not everyone can pull that off. I basically just performed all of my privilege until they did what I needed.[68]

But receiving the recommendation letter from the Medical Board was just the beginning for Dipeksha, as it is for most trans people in Nepal who elect to undergo these steps. She had to return to the ward office in the district where she was born and begin a negotiation process with them to accept the Medical Board’s letter. “No one in the ward office even knew what transgender meant,” Dipeksha said. “So me showing them these medical documents and asking them write a letter to the Chief District Officer [CDO] about changing my legal gender was mind-boggling to them.” She had to return for several days to argue with the officials, who repeatedly told her, “We’re not sure if we can trust you.”[69]

Eventually, Dipeksha decided to travel to the District Administration Office, which was in a different town, and try to advocate for herself there. Upon arrival, she realized that she had interacted with the CDO staffer because they had both worked previously at the same INGO, and so they struck up a conversation as former colleagues. “She was eager to help me, so she called the ward office while I sat there and told them to write the letter to her so she could process it.” Dipeksha traveled back to the ward office the next day, received the letter, and then carried it to the CDO’s office the following day.[70]

After that, Dipeksha had to submit all of the letters—from the Medical Board, Ward Office, and CDO—to the Ministry of Home Affairs. In addition, Dipeksha understood that she had to include her original birth certificate and her original nagarikta. She called in a favor with a colleague at the United Nations Nepal country office to ask if they could send the documents in a diplomatic pouch, and they agreed. At the time of her interview with Human Rights Watch in December 2022, Dipeksha had been waiting for three months with no updates, which made her nervous. “When I’ve called [the Ministry of Home Affairs] for an update, they tell me they have to verify each of the documents on the phone, and sometimes officials in other offices don’t pick up, so it delays things,” she said.[71]

Triya’s Experience with the Medical Verification Process[72] In December 2022, Human Rights Watch and a Nepali LGBT rights activist joined Triya Rai, 43, at Bir Hospital in her effort to obtain a recommendation letter from the Nepal Medical Board that her legal gender be changed, a step in her so-called medical verification process. It is December 13, a sunny winter day in Kathmandu. Triya arrives at Bir Hospital, a bustling, over-capacity government facility in the center of the city, just before 9 a.m. She joins a queue to get a ticket and a book that will be used by doctors to document her care. We ride up three stories in an elevator. The first stop is in a small examination room. There are two men in sweatshirts sitting there; one has a mask on. Simran, an activist who has accompanied more than a dozen trans people through this same procedure, points for me, and then Triya, to sit, before she sits herself. Triya hands the booklet to one of the doctors, a plastic surgeon. He opens it and asks her what she’s there for. Triya darts her eyes over to Simran. “She’s transgender,” Simran says. “And she needs the medical letter to change her citizenship card.” The plastic surgeon starts writing in the book. A male patient enters and sits with the doctor who isn’t busy writing. The doctor writes instructions, mutters something about antibiotics, and sends the man away. Another man enters with a bloodied cast on his arm. The doctor sends him out, saying they will need the examination bed soon. Meanwhile, the plastic surgeon stops writing and gestures for Triya to go sit on the bed, which is crammed in a corner behind tattered curtains. She stands up, hiking up her down jacket so she can access her belt. He puts on gloves while she shuffles over to the bed. Simran pipes up: “Is there a female nurse here?” The doctor says yes and tells the man with the cast, who is standing in the doorway, to shout into the hallway for a female nurse. The nurse arrives two minutes later, and the surgeon stands up. They each yank one side of the curtain to close it, but it only covers about two-thirds of the space. Their examination takes about 90 seconds. The curtain is yanked. The doctor snaps off the gloves, sits down, and starts writing again. Triya emerges into our field of vision and sits next to the doctor. Simran asks: “Did he feel your breasts?” She nods. The guy with the arm cast is let in. There’s two more minutes of writing before we leave the examination room. Our second stop is a booth in the hallway, where Simran asks a woman for a form. She gets a two-page form plus a blank page. We shuffle Triya into the urology department. Simran goes inside to help Triya register—showing Triya’s legal male name and ID card to an elderly man with a ledger—then comes out to say: “we’re never allowed inside the urology exam room,” meaning we can’t accompany Triya for this exam. We sit in the hallway. Simran tells me she’s depressed: “I come here to help people who really want this, then I go to Singha Durbar [the government complex] to try to make this not happen anymore. It’s difficult. I hate this, but this is also a really good day for her, which is why she’s so happy, so I have to try to be happy with her so she has good feelings about it.” Triya comes out holding the form she received earlier. Simran snatches it and we walk 10 paces back to the booth where she had got it. She asks the woman inside for glue, takes a small envelope from Triya, and plucks out a single passport-style headshot: a recent image, with Triya’s long black hair pulled back. The form, in Nepali, is filled out in English and reads “gender dysphoria” in two boxes and in the third, “breast reconstruction—7 years back in Kathmandu (no documentation). Gender affirmation surgery stage I (vulva reconstruction) and chest reconstruction at Olmec Hospital—Delhi in December 2019.” On the next page in the top box: “well defined vulva. Vagina is lying above urethral opening. Breast well defined circa areola and nipple.” Simran glues a photo to the form and hands it back to the woman. I see the woman reading it and entering it into the ledger while two men lean over her, reading it too. They look up at Simran and crane their necks to look at Triya. The woman enters more information into her ledger and stamps a handwritten letter Simran wrote for Triya, which we take to the administration office (our third stop) for a signature. No one is inside that office, so we stand outside for 20 minutes. A man approaches. Simran recognizes him and asks him to sign. “A transgender form,” she says. He signs, not reading it. Our fourth stop is the Medical Board office. We sit next to a man in a mask holding a pile of papers. He asks Triya: “Why are you here?” “Nagarikta.” “Nagarikta?” “Nagarikta.” “Why?” “I need to change it.” He looks baffled. “At the Medical Board?” “Why are you here?” she asks him. “I am a kidney patient and I need financial support, so I am here asking for it.” He looks back at his papers then looks up. “Nagarikta? Here?” “Yes, I need to change it.” Three other men in the room listen to this exchange. Triya sits down between me and Simran. An hour later, everything is done. Triya is told to return the following week and check on the status of her letter. A positive result will be a letter from the Medical Board confirming she has a vagina and describing it as adequate to qualify her as a legal woman. We are at the hospital for just under three hours in total, during which time at least 17 people are made aware of Triya’s reason for being there. Four are licensed health care professionals; the rest are hospital administration staff or onlookers.

Ritu N., a 27-year-old trans woman, also had to submit to medical verification at Bir Hospital as part of her gender verification process, in her case in November 2022. She explained: “The male doctor touched my breasts, but the female nurse checked my genitals. They weren’t rude, so it was OK, and I’m just excited to never have to be the center of attention again when my name gets called.”[73]

While Ritu managed to cope with how she was treated, others experienced the medical verification procedure as traumatizing. Anita L., a 29-year-old trans woman from Kavre district who now lives in Kathmandu, said that her medical verification procedure at Bir Hospital in 2018 made her so uncomfortable that she stopped the procedure and postponed it until a later time. “I didn’t like how the male doctors were looking at me,” she said. “So I called a woman doctor friend and asked for her help. After she called Bir Hospital and got a promise that a female nurse would be present for my exam, I returned.”[74]

But despite the nurse’s presence, the exam was humiliating for Anita. “The male doctors still touched me a lot,” she said. “They touched my breasts and genitals and inserted an instrument into my vagina to test its size. It was really uncomfortable.”[75]

Roya G., a 38-year-old trans woman from Chitwan district explained how she was eager to do whatever it took to change her documents when she began her legal gender recognition process in 2020. “I initiated the process from the Chitwan CDO, all the way up to the Ministry of Home Affairs in Kathmandu,” she said.[76] “I didn’t know my rights, so I begged a lot, including at the hospital. I went three days in a row and begged them to give me the medical verification exam. I had no idea while I was begging for it that it would be so horrible.” This exam was the first time someone else had touched Roya’s body since she underwent gender-affirming surgery in 2019. There were two male doctors in the room and no nurse. “One of the male doctors put his fingers in my vagina and also touched me all over my genitals and breasts,” Roya said. “I had all the documents from my surgery, but [the doctors] still forced me to do that.”[77]

Following her exam and the Medical Board’s approval, Roya’s original documents were sent to the Ministry of Home Affairs in Kathmandu. By December 2022, more than two years later, they had not been returned. “For two years, I haven’t been able to apply for any government services because they all require the original nagarikta,” she said.[78]

The Particular Impact of Medicalization on Trans Men

Roshan, a 30-year-old trans man in Kathmandu, credits his survival as a trans person to having family support and finding community organizations as a teenager. “I got to meet other trans people, learn about their experiences, and make my own decisions,” he said.[79] But for Roshan and other trans men, legal gender recognition amid the creeping medicalization of gender identity in Nepal has posed acute challenges.

When he was 23, Roshan started hormone therapy and, using five years of savings, when he was 26, he underwent top surgery (to remove his breasts) in Kathmandu. “It was expensive, and it was the surgeon’s first trans surgery,” Roshan said. “I was left with big, painful scars, but I’m glad I did it.”[80]

The surgeon advised Roshan to continue with gender-affirming operations, including a hysterectomy. “I tried to get one at a government hospital because it would be cheaper there and I was out of money, but they told me it would be illegal because my uterus wasn’t damaged,” Roshan said. The doctors told him that they could proceed with the hysterectomy if he got a letter from the Ministry of Health. Roshan tried for five months to obtain such a letter, but despite polite assurances from staff at the Ministry of Health, he never received it.[81]

“Now when I approach my ward office, they say they want to see a ‘sex change certificate’ from the Nepal Medical Board,” Roshan said. He explained

The problem is, the surgeries I would need in order to get that, namely a phalloplasty, cannot be done in Nepal. And moreover, I don’t even want one. The Nepal Medical Board just wants to know if I have a penis or not. They’re not checking the penises of cisgender men, so I’m not sure why they have the right to look at my genitals.[82]

The medicalization of legal gender recognition also raised significant barriers for Arun P., a 38-year-old trans man in the city of Nepalgunj. In 2018, he visited the District Administration Office (DAO) and requested to change his legal gender to male. “They told me I could change my name but not my gender,” Arun said. “The staff at the [DAO] specifically said that no gender change on nagarikta was possible until I got surgery.” He asked if he could get the “O” marker on his ID without surgery, but the officials said no and that surgery was required for any change to legal gender. “I felt awful in that moment—I felt as if I am not part of this world,” he said.[83]

Arun left his family home when he was 18, after his parents made two attempts to marry him to men; one was his age and one much older. He lives on his own now, supporting himself as an outreach worker at a small NGO and doing odd jobs. His birth certificate is at his family home, and he is not sure family members would give it to him if he asked, adding yet another obstacle. Like other trans people, he has faced harassment and public humiliation due to his gender marker at airports, public toilets, while voting, and in seeking formal employment. However, Arun is intimidated by the potential cost of the surgery he was told to get in order to change his gender marker. “It’s very expensive,” he said, noting that he often comes up short on paying rent.[84]

Procedures for changing legal gender are para-official, inconsistent, and difficult to navigate. Parina Chowdhury, a prominent trans woman activist in Nepalgunj, said her personal relationships with local government officials allowed her and some other well-connected and famous trans people to avoid medical verification procedures. Still, in her own encounters and those of other trans people she helped with the process, medicalization norms influenced how officials interacted with them.[85]

In 2021, Parina underwent gender-affirming surgery in India and then approached the CDO in Nepalgunj with a request to change her legal gender to “O.” “He asked me ‘what is your proof?” and I replied ‘I am the proof,’” she said. “That was enough—he accepted it and wrote a recommendation letter, I never had to get a medical test.”[86] But Parina was quick to acknowledge that it was her existing relationship with the official that led to this non-medicalized process. “Of course he knows me, everyone knows me around here,” she said. “And if that wasn’t the case, I would still have a male nagarikta with a dhaka topi in my photo.”[87]

 

A Complaint to the National Human Rights Commission On December 8, 2022, Ashika Thapa, a trans woman in the city of Bhairahawa, filed a complaint with the regional office of the National Human Rights Commission. The full text is below, translated from Nepali to English: National Human Rights Commission, Lumbini Province. Subject: Requesting justice and compensation Dear Sir/Madam, My name is Ashish Thapa (Ashika). I am a transgender woman living in Tilottama Municipality, Ward No. 5. I went to the District Administration Office, Bhairahawa with a letter of recommendation from Ward No. 5 Office requesting nagarikta that reflected my gender identity. But the chief of administration handed me a letter asking me to get examined by a physician and to come back with evidence of my transgender status. I went to the Lumbini Provincial Hospital, Butwal, along with that letter and got examined by Dr. Bhuwan (surgeon) by baring my whole body. As the medical examination did not lead to any result, they (the hospital authorities) did not give me any written evidence. I am currently without citizenship documents, which has prevented me from doing many things. In this way, the District Administration Office, Bhairahawa has made fun of me and my gender identity in this manner. [Through this letter], I am requesting that the National Human Rights Commission take steps as soon as possible in order for me to acquire citizenship that reflects my gender identity and arrange for compensation for baring my identity (humiliating me by asking me to undress). As you command, Your Honor! Petitioner: Ashish Thapa (Ashika)

Medicalization and Social Services

Interviewees described how government officials used medicalized justifications to deny not only citizenship document changes, but also other social services.

Raju B., a 35-year-old trans man from the far west of Nepal, explained how he had not pursued legal gender recognition because it would require him to obtain documents from his family, from whom he was estranged. He had not lived with them for 13 years, after they tried twice to force him into heterosexual marriages. “I also hear from my peers about how badly they’ve been treated in the process, so I assume I would get treated the same. It’s too much for me to go into it knowing how awful it will be,” he said.[88] Raju worked part-time for some NGOs over the years but struggled to support himself outside of the family home, so he was excited to learn in 2018 that the government was offering social security support for sexual and gender minorities.

“I went to the social security office with two other trans friends and the official told us ‘we can’t give you money because we can’t be sure you are really sexual and gender minorities,’” Raju said, explaining that the subsequent conversation between the officials that day suggested they incorrectly believed that all sexual and gender minorities were intersex. Consequently, Raju worked with a community-based organization to set up a meeting and information session to educate the officials about the range of sexual orientation and gender identity categories. Unfortunately, the session did not help Raju as hoped. He recalled the feedback from the officials at the end of the session was that “There are too many identities, so we won’t be able to provide social security to that many people. You need to have the ‘O’ marker on your nagarikta plus provide medical proof in order to receive this benefit.” Raju challenged them on the additional medical requirement, explaining that if the nagarikta said “other,” that should suffice for all government offices. He told us that the official replied: “Because you can’t reproduce, you need to go through a medical verification. Only a physician can tell us if you are really a sexual and gender minority community member.”[89]

While medicalization has crept into some applicants’ experience, others have faced outright rejection. “I went to the DAO [in Nepalgunj] in 2013 and asked for my gender to be changed to ‘other,’” said Nandini L., a 32-year-old trans woman in Nepalgunj.[90] “They told me, ‘If we change this document for you, we will get arrested.’ They didn’t ask me for surgery documents—I even had those from my castration in India—they just said that even with surgery proof, it wasn’t possible at all.”[91]

 

Impact of Inadequate Legal Gender Recognition Policy

To force them to live an intimidating and invisible life by forcing them to hide their identity and live differently from how they would rather live with a sense of their own gender experience is to violate the rights of the sexual minority community.

—Pant v. Nepal, Supreme Court of Nepal, 2017

I would like to change my legal gender. It would bring me so much inner happiness—to feel that I am recognized and respected like that would be my biggest dream.

—Nandini L., 26, Nepalgunj, December 15, 2022

The right to recognition as a person before the law is a fundamental aspect of affirming the dignity and worth of every person. For transgender people whose documents do not recognize them according to their gender identity and appearance, everyday interactions can be fraught with humiliation and danger. Transgender people in Nepal interviewed for this report described how the lack of legal gender recognition, combined with pervasive and harmful stereotypes, has limited their ability to access services and exposed them to daily indignities.

Citizenship cards, according to a Supreme Court judgment discussing legal recognition for trans people, “must be obtained for the operation of day-to-day business.”[92] But when trans people are blocked from changing their legal gender, they are forced to improvise on a daily basis. “I try to hide my ID documents as much as possible,” Raju B. said. “The NGO where I used to work gave me an employee ID that has my male name and photo on it and that seems to work in most places, so I just use that unless an official demands to see a government document.”[93] Dipeksha M. described a similar tactic: “I use my [former INGO employer] ID to go to the bank and at the airport. It’s working for now, but it expires in a few months, and I have no idea what I’ll do after that.”[94]

At an event hosted by Blue Diamond Society and UN Women in Kathmandu on December 22, 2023, Dr. Roshan Pokhrel, a psychiatrist and the secretary of health at the Ministry of Population and Health, said: “I commit to creating a simple and accessible process for people to change their legal gender.”

Complexities of the “Other” Gender Legal Category

The introduction of a third gender category into the Nepali systems has been implemented with mixed results.

Some of the complications are rooted in the definition of the third gender category. Within this category, there are numerous identities and expressions. An open-ended gender question posed as part of a survey of more than 1,200 sexual and gender minorities in Nepal conducted in 2013 captured more than seven common identity terms.[95] According to anthropologist David Gellner, “Politically aware Nepalis understood very well that this was a heterogenous category mobilized in order to bring pressure on, and claim resources from, the state, even though many people found the new term confusing and even inappropriate.”[96] Scholar Kumud Rana examined identity formation in her study of sexual and gender minorities in Nepal, explaining that “the ‘third gender,’ ‘meti,’ and ‘natuwa’ are different variations of the same category …However [individuals] thought of these categories as distinct from each other even though one person might identify with more than one of these categories.”[97] Rana concluded that “reportedly indigenous terms … were all understood as gender—but also sexually-transgressive subjectivities which are all equivalent to each other, and to tesro lingi [third gender].”[98] This observation accords with the Supreme Court’s capacious use of “third gender” to refer to a range of identities and expressions in Pant v. Nepal (2007).

While such a flexible and capacious category, based on the principle of self-identification, is a step forward and accords with human rights standards, it is not sufficient: trans individuals who identify as male or female and who object to being placed in the third gender category should be able to seek and gain state recognition as male or female.

Some trans people are comfortable using terminology anchored in indigenous categories to refer to their identity, and their rights can be recognized by a third gender marker on documents and records. Others are not, as they identify with male or female categories; their rights to legal recognition should not be circumscribed to either choosing to carry documents reflecting their birth-assigned sex, or a third gender marker. The male and female categories should be available to them as well, on the same principle of “self-feeling.”

The Nepali government, working with civil society, has made considerable strides in opening space for sexual and gender minorities, including trans people, to enjoy their fundamental rights. However, by limiting the available gender marker for trans people to “other” (and not including “male” or “female” as gender marker options for trans people), the current system is inadequate. This combined with uneven application of the law, and an increased reliance on medical certification, leads to individual rights violations for trans people in Nepal, including in public spaces and employment opportunities.

Harassment and Humiliation in Public Spaces

Simply going from one place to another can be a dangerous and humiliating experience for people whose documents do not match their gender expression. The stakes are high, particularly for international travel, ranging from fraud accusations and exposure to intense scrutiny and humiliation. UN human rights experts have condemned such targeting of transgender people in security processes.[99]

These barriers impact trans people in Nepal, and nearly every trans person interviewed for this report described an instance of interrogation, humiliation, or delay when attempting to access transportation. Gendered queues at airport security were a frequently cited problem; instances on buses were also mentioned.

Raju B., a trans man who would like documents listing him as male but does not have them, recounted a trip to Delhi:

At the Kathmandu airport, the official looked at my ID and sent me to the female queue. The women in the queue stared at me and whispered, then after a few minutes, a guard pulled me out of the queue and berated me, telling me to go to the male queue. When I got to the front of the male queue, the guard there looked at my ID and shouted “why are you here, sister?”[100]

Raju explained that this situation ended thanks to a friend advocating for him by shouting back at the airport official until he relented and allowed Raju to stand in the female queue.

Kathmandu airport staff harassed Dipeksha M., a 26-year-old trans woman, in the summer of 2022 on the night she returned from her gender-affirming surgery in Thailand. “It was 2 a.m. and the guard insisted on patting me down, then shouted at me ‘this isn’t you!’ in front of the whole queue of other people trying to pass through immigration,” she said.[101]

Ritu N., a 27-year-old trans woman from Tanahun district, faced similar harassment at the Kathmandu airport.

In September of 2022, after I had had my surgery in Bangkok, officials at the Kathmandu airport for a domestic flight harassed me because of my gender marker. I had to explain myself, my body, my surgery in Bangkok. They held my ID for over an hour, and discussed amongst themselves whether it was really me on the card. That was the point where I realized I needed to pursue a new ID. I realized it might involve some awful moments with a doctor and it might take years to get the new card, but it’s better than the daily humiliations.[102]

For Roya G. and Gita G., trans women in Kathmandu who do sex work, discordant gender markers have created physical and financial vulnerabilities. Roya explained how she is very careful with sex work clients in terms of disclosing that she is trans. “I’ve been beaten, blackmailed, and denied payment by clients once they discover I am trans, so I hide it all the time,” she said. “I can’t have them see any document that indicates my legal name or gender because I haven’t changed it yet.”[103] Gita explained another problem posed by her legal gender:

Sex work clients increasingly want to pay with apps, but when I register with an app, I have to register with my bank account, which is in my legal male name, so that’s what shows up on the app. I get nervous when new clients, or clients who don’t know I’m trans, see my app profile with my male name.[104]

Barriers to Employment

The limited options for legal gender recognition and lack of consistent application of the Supreme Court’s orders in Nepal has negatively impacted transgender individuals’ ability to secure employment and their right to be treated with dignity and respect. This puts transgender people at a distinct disadvantage when it comes to finding and keeping a job. In a 2021 study of 200 trans women in Kathmandu, researchers found that 78 percent of respondents had been denied employment, they believed, because of their gender identity.[105]

Roshan B., a trans man in Kathmandu, attempted to gain employment in the formal sector but got denied once the employer noticed the discordance on his citizenship card. “I sent in my CV and nagarikta (with a female gender marker, name, and photo) and the company called me for an interview for a receptionist position,” he said. “But when I arrived, the boss said ‘oh, we expected a pretty lady, not you—so we can’t hire you.’”[106]

“Having a ‘F’ document will make looking for formal employment easier,” said one interviewee, a 43-year-old trans woman who does sex work. “I have tried to get other jobs, but they either reject me directly or just never call me back. I’m a competent person, and I think I can get work.”[107]

For Anita L., 29, every time she has been hired, formally or informally, she ends up facing harassment at work. “People put me under scrutiny because my voice is a little deep or my mannerisms aren’t 100% traditionally feminine,” she said. “I accept and express myself as trans but that doesn’t mean people are allowed to harm me, and it doesn’t mean the government should play a role in making a bad situation worse by creating obstacles to me obtaining a proper ID.”[108]

Chandika N., a 50-year-0ld trans woman in Nepalgunj, has only ever worked in the informal sector “because every time I would try to get a more formal job, such as at a hotel as a cleaner, they would say ‘but you’re a woman and this document says man, so bring us another one or we can’t hire you.’”[109] Chandika heard that if she gets surgery, she can change her documents to “F,” but given her economic precariousness, the financial barriers make the surgery impossible to imagine:

I want to get food first, and health care and housing. Then if I have more money, I’ll go for surgery, I guess. It would be better to just have the new documents without spending all that money on surgery.[110]

Impact of Covid-19 Measures

Emergency and crisis situations such as the Covid-19 pandemic exacerbate structural inequalities, including for LGBT people. While struggles with stigma, discrimination, and violence are experienced by various marginalized populations, LGBT people may be disproportionately impacted in specific ways. Narrow definitions of gender and family can put LGBT people at risk of exclusion from aid, relief, and services.

In Nepal, as this report documents, and in other parts of the world, many transgender people do not have ID documents that match their identity and expression.[111] This means any time they have to show ID to an official—for example, to travel or access healthcare or aid—potentially poses risks. Services that are distributed in a sex-segregated manner are potentially discriminatory for people who express one gender and carry an ID that lists another. This situation can occur in humanitarian assistance situations, as aid and relief are often delivered to “family” units, which can be strictly defined as one-man/one-woman households, thus excluding many LGBT people and families.[112]

Although disaster response mechanisms in Nepal already failed to include trans people prior to the Covid-19 pandemic,[113] the government is making the same mistakes. “The relief packages from the government after the 2015 earthquake and during the Covid-19 pandemic required ID, which made it basically impossible for trans people who hadn’t gotten their documents changed to present for relief services,” Roshan B., a trans man in Kathmandu told Human Rights Watch.[114]

The pandemic further exposed the ongoing exclusions of and challenges for LGBT people in crises, prompting the Nepal UN Women office and activists, including Rukshana Kapali, to write a Feminist and Queer Charter of Demands in Response to Covid-19 in Nepal.[115]

Raju B., a trans man, explained:

The reality is that Covid lockdowns made employment, which was bad before for us, even worse. A lot of us had broken with our families and moved out to rented rooms, so we really needed income. When that stopped because of lockdowns, some of us had to go back and live with our families. And staying inside with them all the time—it was torture for some of us. They really treated us badly and made us feel horrible all the time. I know of two suicides of lesbian friends in the past two years near here as a result of this. Economic independence is our safety; without it, we are at risk of constant poor treatment.[116]

According to the Astraea Foundation, “Many LGBTQI+ individuals could not return to families that had abandoned them in the first place” to alleviate the financial stresses caused by Covid-19’s impact on Nepal’s economy.[117]

Nepal has international legal obligations to make Covid-19 vaccines available and accessible to everyone. Upstream barriers to accessing Covid-19 vaccines put governments such as Nepal, who do not have the purchasing power to compete with wealthier governments, at a disadvantage. The failure of wealthy governments and pharmaceutical companies to share the intellectual property and transfer the relevant manufacturing technology created an artificial scarcity of lifesaving vaccines. Despite considerable financial and intellectual property-related barriers,[118] Nepal eventually obtained adequate vaccine doses.

Discrimination against people whose ID documents have gender markers different from their appearance has been another barrier to vaccines for some trans people. While the Nepali government obtained vaccines to cover its entire population, availability and accessibility are not the same thing. This can be especially true for marginalized populations, like trans people, who already face discrimination and barriers to health care.

Arun P., a trans man in Nepalgunj, recounted his struggle to get vaccinated.

I first went to a government vaccination site, but I had to show my ID. And the person there asked “why are you carrying this ‘F’ nagarikta? This isn’t you.” They told me to come back later, but the next day, another person just said the same thing. I realized they were never going to let me get the vaccine, so I just stopped going. I only got a Covid vaccine injection because BDS had them at the office.[119]

Advocacy efforts by BDS and its affiliate organizations across the country resulted in a third gender option being added to vaccine cards as well as targeted outreach to trans people during Covid-19 vaccine campaigns in some areas, leading to improved access. GAVI, the global vaccine organization, explained the positive shift: “A rigid male/female ID system in Nepal was preventing many members of the country’s transgender community from getting the COVID-19 jab. A group of activists, working with the government, is turning things around.”[120]

 

National Jurisprudence on Gender Identity and Human Rights

I completely disapprove of the medicalized process for legal gender recognition. The whole idea is incoherent—they would never ask a cisgender person to get a genital exam if they lost their nagarikta and needed a replacement. Gender verification through genitals makes no sense; they’re just doing this because they want to control us.

—Shilpa Chowdhury, a trans activist from Dang district, December 11, 2022

The creeping medicalization of legal gender recognition in Nepal is nested in a complex interface that involves the administrative state, the sociopolitical authority afforded to medical practitioners, and the urgent, pragmatic desires of trans people to recognition before the law. With the beginning of the peace process in 2006 and the promulgation of the Interim Constitution in January 2007, a wave of LGBT rights activism successfully used constitutional litigation. Successive Supreme Court judgments have ordered authorities to implement a procedure based on a trans person’s self-identification—for a third gender category, or for male and female categories—and respect the rights of trans people through inclusion in social schemes. The court’s existing analysis should guide future judgments, including the cases currently pending at time of writing, and the development of legislation related to trans people’s rights.

Sunil Babu Pant and others v. Nepal (2007)

The original case, Pant and others v. Nepal, remains foundational in its orders to respect the self-proclaimed gender identity of trans people and its specific instructions to amend citizenship documents to include a third gender based solely on the criterion of “self-feeling.”

The Supreme Court in 2007 was unambiguous in its conclusions about the human rights of trans people:

If any legal provisions exist that restrict the people of third gender from enjoying fundamental rights and other human rights provided by Part III of the Constitution and international conventions relating to the human rights which Nepal has already ratified and applied as national laws, with their own identity, such provisions shall be considered as arbitrary, unreasonable and discriminatory. Similarly, the action of the state that enforces such laws shall also be considered as arbitrary, unreasonable and discriminatory.[121]

The bulk of the judgment’s citations were European cases involving legal gender recognition for trans people who have undergone surgeries. However, in line with the then-recent Yogyakarta Principles, justice Bala Ram KC wrote that the sole criterion for being legally recognized as third gender in Nepal would be based on self-identification, not on any medical (or other) criteria: “Legal provisions should be made to provide for gender identity to the people of transgender or third gender, under which female third gender, male third gender and intersexual are grouped, as per the concerned person’s self-feeling.”[122]

The judgment reads:

It is wrong to say that a person’s sex depends on some limited range of factors, such as the state of the person’s gonads, Chromosomes or genitals (whether at birth or at some other time)… the relevant matters include the person’s biological and physical characteristics at birth; … the person’s self perception as a man or woman; … and the person’s biological, psychological and physical characteristics at the time of the marriage, including any biological features of the person’s brain that are associated with a particular sex. [123]

Dilu Buduja v. Nepal (2015)

In this case, the Supreme Court directed the government to issue passports with gender markers that align with those who had a third indicator on their nagarikta. The petitioner was a citizen who had changed his legal gender on his nagarikta to “third” and applied for a passport listing him as “third.” The passport office of the Ministry of Foreign Affairs denied the passport request, and told the Supreme Court that they could not issue a passport with a gender other than “male” or “female” because their software had already been set to only accommodate two gender categories.

Arguing that “Third-gender individuals are also human,” the court ordered the passport office to update its software and issue passports in three genders. Citing advances in “third,” “other,” and “X” passports issued by other countries, global passport regulations set by the International Civil Aviation Organization, and the adjustments that had already been made in Nepal to include a third gender category on citizenship documents and the census, the court stated:

Given that such efforts have been made, without discrimination, to recognize them at par with the general citizens, there can be no question about not being able to provide the third-gender recognition in the sought passport in accordance with the petitioner's demand.[124]

Sunil Babu Pant and others v. Nepal (2017)

Pant and two trans activists petitioned the Supreme Court to order the government to facilitate the legal recognition of the “other” gender category on citizenship documents. The applicants had attempted to start the legal gender change process in their home districts, much as in the cases documented in this report, but their applications were either denied or severely delayed. The government’s responses to the court indicated that the authorities felt the law was clear and trans people had the right to change their legal gender, but failures of implementation at a local level was not the central authorities’ concern. Ultimately, the court sided with the petitioners and ordered the government “to amend and modify the necessary laws regarding this matter,” specifically calling for name—and not only gender—changes to be possible on official documents.

The judgment, reproduced in full in Appendix 2, also featured strong human rights arguments for allowing self-identification in legal gender recognition procedures, including:

·       “It is solely the individual right to self-determination of any person to acquire gender identity as per his/her perception. It is not relevant to determine the biological gender of any person by other person, society, state or the law. Any provisions injurious to independent reputation and dignity of human being shall not be acceptable from the viewpoint of human rights.”

·       “To have to remain with identity cards that are different from their actual identity means for the gender minority community that their self-respect is hurt and that their sense of community ownership is weakened. To force them to live an intimidating and invisible life by forcing them to hide their identity and live differently from how they would rather live with a sense of their own gender experience is to violate the rights of the sexual minority community.”[125]

Rukshana Kapali v. Nepal (2021)

In this case, trans activist Rukshana Kapali has petitioned the Supreme Court on the basis of the 2015 constitution, which explicitly recognizes the rights of sexual and gender minorities, previous Supreme Court decisions, and international standards to order education authorities to amend relevant certificates and diplomas with her gender identity. Kapali had attempted to be legally recognized as “female” on her original citizenship card when she turned 16 (the age when the nagarikta is acquired) in 2015. Despite her request, the nagarikta was produced identifying her as “other” gender, and her subsequent attempts to have her educational registration documents, exams, and diplomas issued with her chosen female name and her female gender identity were denied.

“I have had to face hurdles in different places for four years as my certificate and identity card are not according to my real identity,” she wrote in her petition..[126] Her writ petition, which is featured in Appendix 4, details the grueling steps she has taken since 2015 to amend her nagarikta and other documents, and the Kafkaesque outcomes she has endured. For example, she writes:

I have two passports. The first was issued on 16 January, 2017. In the passport I got my gender description “F” (female). I have had the opportunity to attend many international conferences and travel abroad frequently. After my passport sheets expired, I applied for a new passport. But at that time, as my citizenship mentioned “other”, people filing the form started making counter-questions saying that I should not apply for “female”. I was in a hurry to get a visa to attend a conference in Canada. On 20 September, 2018, another passport was issued in which the gender details “O” (Other) was stated.[127]

Interim Order (2023)[128]

While Kapali awaited her delayed hearing at the Supreme Court, she received additional bad news. Purbanchal University law school, where she had been enrolled as a student, withheld her exam results, insisting that they can only be released in her deadname and sex assigned at birth.

Kapali appealed to the Supreme Court, asking that the university and relevant government authorities

not state her dead gender,[129] that her gender identity be amended on her SLC [an official document indicating results for class 10 exam] that the results of her first year of BA LLB not be withheld, and that she be allowed to take the examinations of the second year of BA LLB in a dignified manner.

On January 6, 2023, the Court ordered the National Examinations Board to release her results according to her gender identity and name, finding that:

[N]ot allowing any person to enroll at a school or university based on their gender identity, not allowing them to obtain an education, or preventing them from taking an examination would appear to be a serious violation of the rights enshrined in the Constitution.

The Court further elaborated:

Gender identity is an individual’s private matter. In order for an individual to freely enjoy their personal liberties and right to live with dignity, the dignity and respect for gender identity must be upheld. The Constitution of Nepal has guaranteed the right to education as a fundamental right. In this vein, it is clear that gender identity may not be an obstruction on any ground when it comes to obtaining an education. Linking the issue of gender identity to education and using that as a basis to create any hindrance to university enrollment or any act related to learning goes against all the provisions envisaged by the Constitution for an individual’s human dignity and it is an unexpected situation that cannot even be imagined in civilized society. This makes a mockery of the constitutionally guaranteed right to live with dignity. If an undesirable obstruction is created in the way of a citizen’s right to obtain an education, then fundamental rights lose purpose for them.

The order concluded by instructing the National Examinations Board not to withhold her results, not to obstruct her access to education due to her gender identity, and specifically not to obstruct her access to her educational results on the basis of her gender identity.

At the time of publishing this report, Human Rights Watch was aware that Kapali’s case had been resolved by the Supreme Court, and that the judgment was in favor of the petitioner, but other explanatory details are unknown as of now.

Adheep Pokhrel and Tobias Volz. v. Ministry of Home Affairs, Department of Immigration (2023)[130]

The case was brought by a gay couple—Adheep Pokhrel, a Nepali citizen, and Tobias Volz, a German citizen. The pair were legally married in Germany in 2018. They applied for a non-tourist visa for Volz in July 2022, which would entitle him to the same rights to live in Nepal as a married heterosexual spouse in the same circumstance. Nepali authorities denied the request on the grounds that the application form reads “husband” and “wife” and does not recognize two husbands.

In addition to ordering the department of immigration to grant Volz a non-tourist visa, the court also instructed the government to urgently consider a 2015 court-ordered committee report (from Pant v. Nepal, 2007) that recommended broader recognition of same-sex relationships. The court ruled that failure to recognize same-sex spouses violates Nepal’s constitution and its international human rights obligations.

While the judgment primarily focuses on same-sex relationship recognition, it also involves nuanced discussions of terminology and human rights related to sexual orientation and gender identity. For example, the judgment explains:

Generally speaking, the term "third gender" is used to indicate communities other than men and women. In several documents, the use of "third gender" also refers to the transgender community. Given the current context where various terms of gender identity have been developed and individuals are openly identifying themselves with those identities, "third gender" cannot denote everyone and, therefore, the use of such a term can potentially diminish the identity of the members of the gender and sexual minority community as a whole. At a time when there seems to be a general agreement to use the more inclusive term SOGIESC [sexual orientation, gender identity/expression, and sex characteristics] instead of LGBTIQA+ [lesbian, gay, bisexual, transgender, intersex, queer, and asexual], which cannot represent the entire non-binary community, the use of "third gender" to address the entire non-binary community would seem contrary to the principle of inclusion as well.[131]

The judgment makes important strides in clarifying terminology related to gender identity and, while acknowledging that a range of identities may be understood under a “third gender” heading and some people may pursue legal recognition as “third gender,” others may identify as male, female, or a range of indigenous identity terms.

International Law and Legal Gender Recognition

In its 2014 review of Nepal, the UN Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights (ICCPR), complimented Nepal’s progress on transgender rights, noting “[t]he introduction of a third gender in various official documents, including citizenship certificates, pursuant to the Supreme Court judgment of 21 December 2007.”[132] In its currently-pending review of Nepal, the Human Rights Committee has asked the government to indicate what steps it has taken to protect against discrimination on the basis of gender identity.[133]

The ICCPR, which Nepal ratified in 1991, provides for equal civil and political rights for all (article 3), the right to recognition for everyone before the law (article 16), the right to privacy (article 17), and equality before the law and the equal protection of the law without discrimination on any grounds, including sex (article 26).

The right to recognition is captured in Principle 3 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, which was developed by international human rights experts, including former Member of Parliament in Nepal, Sunil Babu Pant, and endorsed by the UN. Principle 3 states that:

Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity…. No one shall be subjected to pressure to conceal, suppress, or deny their sexual orientation or gender identity.[134]

Nepali Federal Law and Legal Gender Recognition

The Constitution of Nepal explicitly protects the rights of LGBT people and the right to legal gender recognition according to gender identity.[135] Article 12 recognizes that people eligible for citizenship by descent can obtain it on the basis of their gender identity. Articles 18(3) and 42(1) respectively protect “gender and sexual minorities” (laiñgik tathā yaunik alpasañkhyak) against discrimination and entitle them to affirmative action in public services.[136]

In Nepal, citizenship is regulated by the constitution, the Nepal Citizenship Act of 2006,[137] and acts relating to passports, birth certificates,[138] and identity cards.[139]

In 2012, the Ministry of Home Affairs issued a directive on the process for providing citizenship documents for people with “other” as a gender marker. The directive defines gender identity as: “[T]he feeling that comes from every person’s inner heart and personal gender experience.” [140]

The directive vaguely explains the eligibility and process requirements for changing one’s gender to “other”:

(1) An individual from the sexual and gender minority community who wishes to acquire citizenship based on their gender identity and who is eligible to acquire citizenship pursuant to the prevailing law, shall submit [a letter of] application to a relevant local body if they wish to acquire citizenship marked other gender based on their gender identity.

(2) The local body may conduct a necessary investigation on the submitted application to issue citizenship based on gender identity and make a recommendation to a relevant officer.[141]

While the MOHA order was helpful in reiterating the Supreme Court’s order in Pant v. Nepal (2007), it fell short of adequately enumerating a clear procedure for identity-based legal recognition. Absent that clarity, authorities across the country have implemented it inconsistently, and violated the rights of many people who have attempted to change their legal gender.

A 2023 UN Women report analyzed the legal landscape for transgender people in Nepal, including the various laws that impact their ability to have their gender identity legally recognized. The report featured anonymized interviews with Nepali policymakers, including one who remarked: “Although there has been improvement compared to the past, there have been inadequacies in the seriousness executed by the government.”[142] The agency recommended that the Ministry of Home Affairs undertake:

To implement the 2007 directive from the Supreme Court (Sunil Babu Pant versus Nepal, 2007), self-determination and self-feeling should be the basis for gender identity. At present, it needs to be clearly stated that [people] have the right to do this without proof of medical intervention.[143]

Legal Gender Recognition

The UN Human Rights Committee has made recommendations about legal gender recognition: For example, it specifically recommended that Ireland should guarantee the rights of transgender persons including the right to legal recognition of their gender [144] and that Ukraine should repeal abusive and disproportionate requirements for legal recognition of gender identity.[145]

In his report to the UN General Assembly in 2018, the UN independent expert on sexual orientation and gender identity stated:

[L]ack of legal recognition negates the identity of the concerned persons to such an extent that it provokes what can be described as a fundamental rupture of State obligations. As expressed by one scholar, when States deny legal access to trans identities, what they are actually doing is messaging a sense of what is a proper citizen.[146]

A critical component of evolving international standards—and states’ implementation of those standards—has been the clear separation of medical procedures related to gender transition, and legal procedures related to gender transition.

Shifting from Requiring Medical Procedures as a Precondition

International human rights standards are increasingly understood to require the separation of legal and medical processes of gender reassignment for transgender people. In some countries, legislatures have adopted these standards in laws and policies; in other countries, courts have required the application of these principles.

Several countries have adopted best practices that reflect this. In recent years, Sweden, the Netherlands, Ireland, Colombia, Malta, and Denmark[147] changed their legal recognition procedures to remove invasive medical requirements; Denmark and Malta, along with Argentina, do not require a medical diagnosis for legal gender recognition.[148] Argentina and Malta are widely considered to set best standards in legal gender recognition procedures.[149]

A 2012 OHCHR report on discrimination and violence and discrimination on the basis of sexual orientation and gender identity, noted that “[r]egulations in countries that recognize changes in gender often require, implicitly or explicitly, that applicants undergo sterilization surgery as a condition of recognition.”[150]

According to a 2013 report of the UN special rapporteur on torture, “In many countries transgender persons are required to undergo often unwanted sterilization surgeries as a prerequisite to enjoy legal recognition of their preferred gender.”[151] He noted a trend of finding such compulsory sterilization a violation of non-discrimination rights and physical integrity, [152] and called upon governments “to outlaw forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups.”[153]

In a 2014 joint statement, the WHO, OHCHR, UN Program on HIV/AIDS (UNAIDS), UN Development Programme (UNDP), United Nations Children’s Fund (UNICEF), and United Nations Population Fund (UNFPA) said:

States parties’ obligation to respect the right to health requires that they abstain from imposing discriminatory practices. This includes an obligation to respect the rights of persons with disabilities and transgender and intersex persons, who also have the right to retain their fertility.[154]

These agencies further called on governments to “[p]rovide legal guarantees for full, free and informed decision-making and the elimination of forced, coercive and otherwise involuntary sterilization, and review, amend and develop laws, regulations and policies in this regard.”[155]

The 2015 “Blueprint for the Provision of Comprehensive Care for Trans People in Asia and the Pacific”—co-published by the World Health Organization (WHO), UN Development Programme (UNDP), United States Agency for International Development (USAID), the US President's Emergency Plan for AIDS Relief (PEPFAR), the Asia-Pacific Transgender Network, and the Health Policy Project—recommended that governments “[t]ake all necessary legislative, administrative, and other measures to fully recognize each person’s self-defined gender identity, with no medical requirements or discrimination on any grounds.”[156]

In its 2015 report on violence and discrimination on the basis of sexual orientation and gender identity, OHCHR recommended that states begin immediately “[i]ssuing legal identity documents, upon request, that reflect preferred gender, eliminating abusive preconditions, such as sterilization, forced treatment and divorce.”[157]

In addition to international human rights bodies and experts, in recent years, international health expert bodies have strengthened their positions against medical models for legal gender recognition.

In a 2010 statement, the World Professional Association for Transgender Health (WPATH)—an international, multidisciplinary professional association aimed at promoting evidence-based care, education, research, advocacy, public policy, and respect in transgender health and composed of more than 700 members worldwide—called on governments “to remove any sterilization requirements as part of legal gender recognition.[158] WPATH stated:

No person should have to undergo surgery or accept sterilization as a condition of identity recognition. If a sex marker is required on an identity document, that marker could recognize the person’s lived gender, regardless of reproductive capacity. The WPATH Board of Directors urges governments and other authoritative bodies to move to eliminate requirements for identity recognition that require surgical procedures.[159]

In 2015, WPATH updated the statement, reiterating its condemnation of forced sterilization and expanding its critique of arduous and medicalized procedures for legal gender recognition, with: “No particular medical, surgical, or mental health treatment or diagnosis is an adequate marker for anyone’s gender identity, so these should not be requirements for legal gender change” and “appropriate legal gender recognition should be available to transgender youth.”[160]

And in 2017, WPATH updated their position statement again while reiterating the stance expressed in its 2015 statement:

WPATH further recognizes the right of all people to identity documents consistent with their gender identity, including those documents which confer legal gender status…. Transgender people, regardless of how they identify or appear, should enjoy the gender recognition all persons expect and deserve. Medical and other barriers to gender recognition for transgender individuals may harm physical and mental health. WPATH opposes all medical requirements that act as barriers to those wishing to change legal sex or gender markers on documents.[161]

Rights of Transgender Children

The right to recognition as a person before the law is guaranteed not only by the ICCPR, but also the Convention on the Rights of the Child (CRC), which Nepal ratified in 1990.[162] Article 8 of the CRC guarantees the right to preserve one’s identity, which specifies three aspects of identity: nationality, name, and family relations as recognized by law; however, that list is not exhaustive. Together with the right to protection from arbitrary interference in privacy (article 16), the right to preserve one’s identity is understood to extend to the way one’s identity is reflected on state-issued documents, including for children.

As the CRC makes clear, “[i]n all actions concerning children, … the best interests of the child shall be a primary consideration.”[163] Such actions include decisions about legal recognition of the gender identity of transgender children.

Article 12 of the CRC provides that in determining the child’s best interests, the child themself should be heard and taken into account:

1. Governments should assure to the child who is capable of forming their own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.[164]

The Yogyakarta Principles+10, an update to the original Yogyakarta Principles, adopted in 2017, includes the right to legal recognition (principle 31). Principle 31 directs states to “Ensure that no eligibility criteria, such as … minimum or maximum age …, shall be a prerequisite to change one’s name, legal sex or gender.”[165]

Gender Markers

Non-Binary Gender Markers

An increasing number of governments recognize—at least on some documents—a non-binary gender identity. These include Australia, India, Nepal, the Netherlands, New Zealand, and the United States, among others.

The International Civil Aviation Organization (ICAO), which sets global standards for machine-readable passports, allows for three sex categories: female, male, or “X” for unspecified.[166] Analysts have pointed out that historically, international passport regulations did not require gender to be listed on the documents. Gender markers were only added following US government advocacy at the ICAO in the 1970s.[167]

Removing Gender Markers from Official Documents

In 1972, Sweden instituted the world’s first law allowing transgender people to change their legal gender. The world has changed much since then. An increasing number of countries have legal gender recognition procedures on the books; many of those governments that previously had laws with discriminatory and medicalized requirements have since eliminated medical barriers, and some have apologized for past wrongdoing;[168] some are including third gender or non-binary options for people to select; and some are exploring the removal of gender markers altogether.[169]

Principle 31 of the Yogyakarta Principles+10 states:

Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents while gendered information is included in them.[170] [Emphasis added]

Principle 31 seeks an end to requiring gender information in identity documents and urges governments to:

Ensure that official identity documents only include personal information that is relevant, reasonable and necessary as required by the law for a legitimate purpose, and thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver’s licenses, and as part of their legal personality.

In his report to the UN General Assembly in 2018, the UN independent expert on sexual orientation and gender identity stated: “The notion that there is a gender norm, from which certain gender identities ‘vary’ or ‘depart’ is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights.”[171]

The report continues:

[T]he mandate holder has significant doubts as to the real need for the pervasive exhibition of gender markers in official and non-official documentation, which appears to be fulfilling the vestiges of needs that have long been superseded or adhering to a rationale that should have never been applied in the first place. The simple principle remains that States must refrain from gathering and exhibiting data without a legitimate, proportionate and necessary purpose.[172]

Employment Discrimination

Nepal has ratified both the International Labor Organization (ILO) Equal Remuneration Convention, 1951 (No. 100)[173] and the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111).[174] Both conventions affirm the right to non-discrimination for workers in Nepal.

The Equal Remuneration Convention “promotes equal pay for work of equal value between men and women, addressing pay discrimination on the grounds of sex.”[175]

The Discrimination Convention “sets comprehensive standards to promote equality of opportunity and treatment in the world of work” and requires states to adopt “a proactive, positive approach” to achieving this goal.[176] The Discrimination Convention defines “discrimination” as:

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.[177]

 

Acknowledgments

Kyle Knight, senior researcher in the LGBT rights program at Human Rights Watch, researched and wrote this report. The Federation of Sexual and Gender Minorities-Nepal, Queer Youth Group Nepal, and the Blue Diamond Society (BDS) provided research assistance. Some interviews required interpretation, which was provided by Sunrose Maskey and Bimala Shrestha.

The report was reviewed by Anji Manivannan, senior editor, Graeme Reid, LGBT rights program director, an Asia division researcher, Juliana Nnoko-Mewanu, senior women’s rights researcher, Hye Jung Han, children’s rights researcher and advocate, Julia Bleckner, senior researcher on health and human rights, Joseph Saunders, deputy program director, and Michael Bochenek, senior legal adviser. Production assistance was provided by Andres Burgos and Yasemin Smallens, LGBT rights program coordinators.

Expert review was provided by Simran Sherchan, executive director of the Federation of Sexual and Gender Minorities-Nepal, Manisha Dhakal executive director of the Blue Diamond Society, Rukshana Kapali, executive director of Queer Youth Group Nepal, Sunil Babu Pant, former member of parliament and founder of the Blue Diamond Society, and Mara Malagodi, Reader (Associate Professor), Warwick Law School, University of Warwick, United Kingdom.