(This is an essay from our December 2015 print quarterly, ‘The Marriage Issue: Loves, Laws, Lusts’. See more from the issue here.)
Nepal is often presented as the leader in ‘LGBT’ rights activism in Southasia, if not in all of Asia. In September 2015, Director of Human Rights Campaign Global, Ty Cobb, lauded the protections extended to sexual and gender minorities in Nepal’s new constitution, despite the criticisms made by many feminists and organisations within Nepal. He wrote:
This is a momentous step forward for LGBT equality in Nepal. The nation’s leadership has affirmed that its LGBT citizens deserve the constitutional right to live their lives free from discrimination and fear… We congratulate LGBT Nepalis and their allies for this historic victory, and hope to see other nations across Asia and the globe take similar steps to ensure full legal equality for their LGBT citizens.
Undeniably, Nepal does have some of the most progressive legislative support regarding sexual orientation and gender identity. For instance, Basu Dev Bajgai, member of an expert committee formed to study same-sex marriage in Nepal, announced in 2015 that the committee’s report “recommends legalisation of same-sex marriage and amendments of related marriage laws such as property rights, divorce and adoption.” The recommendation, if adopted, potentially paves the way for marriage-equality legislation and reform, roughly eight years after a 2007 Supreme Court ruling created a strong legal mandate for advocacy and reform by comprehensively recognising LGBT rights. These are but two of the most recent developments that represent the tail end of a longer series of progressive reforms in Nepal related to sexual orientation and gender identity. Many of the reforms have focussed on the institutionalisation and state recognition of a ‘third gender’ in census surveys, on citizenship documents, and most recently, on passports.
Each of these reforms were usually publicised internationally and praised by different actors, albeit with some degree of bewilderment over how such reforms were achieved. These reforms are impressive considering that Nepal’s first LGBT activist organisation, Blue Diamond Society, was only founded in 2001. However, the ways in which activism, legal reform and society reflect and relate to each other is an ambiguous terrain. It raises questions about how these reforms have affected the daily lives of sexual and gender minorities living outside activist networks, and whether these reforms are the result of significant changes in social values.
Many of the people I have met and spoken with offer conflicted narratives that shed light on these questions, “I am not out, and I am not that comfortable with being out… I want to leave Nepal basically to get rid of my parents. Not to get rid of them but to get rid of the pressure of marriage [that will come] later… When the Nepali traditional age comes that you get all the pressure about getting married. That hasn’t started yet. I am still too young. Maybe in my early 30s I will get the pressure… After going overseas, after graduating, hopefully a Masters’ degree will land me into a decent job over there,” says Ram, a 21-year-old gay man living in Kathmandu. For Ram, legal reform is clearly removed from the immediacy of his plan to escape familial and societal pressures to live a life he doesn’t want to live.
The 2007 Nepal Supreme Court ruling came not long after the signing of the Comprehensive Peace Accord in 2006, which prepared the ground for abolishing the monarchy, brought the Communist Party of Nepal (Maoist) into mainstream politics and ended the civil war. In the aftermath of the war, people were optimistic that the promise of a democratic, developed and inclusive ‘New Nepal’ would finally be realised and that the historical grievances and marginalisation of different groups would be addressed. Since then, many spaces have opened for marginalised ethnic and low-caste groups, sexual and gender minorities, and others whose rights, issues and concerns were repressed under the monarchy.
However, the extent to which this enthusiasm for a new, inclusive state facilitated the 2007 ruling is a topic yet to be fully explored. The decision was taken by a Supreme Court justices, who heard deliberations on the issue by various stakeholders. Subsequent reforms have largely been pushed through by bureaucrats within related ministries. The proponents of the case were thoroughly briefed and supported by local and international activists, who provided international precedents and legal expertise to the advocates before they argued the case. Additionally, Nepal’s Supreme Court itself has a liberal track record, repeatedly upholding and affirming the rights of women and other minorities. The case was brought to court before there had been substantial public debate, or perhaps more importantly, backlash, about the issues being considered.
The lack of debate was partially due to the fact that Nepal was never subject to British rule. As a result, Nepal never had a Section 377, the colonial-era law criminalising sexual acts “against the order of nature”. While its legal code, the Muluki Ain, was inspired and influenced by European governments and did prohibit ‘unnatural sex’, there is no strong evidence to suggest that this provision was ever enforced or applied to people in same-sex relationships or with gender-variant identities. Indeed, the provision and definition of ‘unnatural sex’, as it applied to same-sex relations, was successfully challenged in a 2004 Supreme Court ruling. The absence of colonialism, combined with Nepal’s unique cultural and demographic make up, offers a unique Southasian context where the British influence over sexuality and gender, through governance and cultural influence, were largely limited, if not absent, even though Nepal’s aristocracy may have been seeking to internally emulate European governance.
In this respect, if homophobia was indeed something ‘inherited’ from the British, as some have argued, it would be reasonable to expect that Nepal would be socially more accepting of same-sex relationships and gender variant people. Perhaps the biggest difference, when compared to former British colonies, can be seen in the tone and register through which these issues are discussed in Nepal. While in India open and vocal opponents of decriminalisation exist, especially within the Hindu nationalist parties and movements, Nepal has a notable absence of public figures who openly oppose activism and reform around sexual and gender minorities’ rights. Yet, the absence of public denunciations is not equivalent to widespread social inclusion and acceptance. A closer examination of the government’s position on these issues reveals that Nepal’s commitment to the inclusion of ‘LGBT people’ is substantially more ambivalent than what is suggested when Nepal’s legal reforms are seen in isolation and relayed internationally.
Take for instance the 2015 report recommending the legalisation of same-sex marriage. While supportive in content, the report was delayed by five years, stuck in the Ministry of Public Health, where a representative said they were told not to finalise the report by successive governments. Police crackdowns escalated in the meanwhile to the point where in 2013, Human Rights Watch issued a statement entitled ‘Nepal: Climate of Fear Imperils LGBT People’, concerning the large number of arbitrary arrests and detentions of transgender people at the time.
In October 2014, locals approached the Kaski District Administration Office to declare a street in Pokhara as a ‘Chakka Prohibited Area’, barring transgender women from walking there at night. Finally, despite the fact that Nepal’s constitution, ratified in early 2015, acknowledged diverse sexual orientations and gender identities, the new draft of Nepal’s Civil and Criminal Code – which the Parliament deliberated on in August 2015 – includes a provision that criminalises ‘unnatural’ sexual relations. Specifically, within the draft, unnatural sex has been defined as any non-penile vaginal sexual intercourse. It is unclear whether this provision, if ratified, would supersede the previous 2007 Supreme Court provision, and what form its implementation would take. However, regardless of the status of the law, it is clear that the social conditions of sexual and gender minorities are linked to a wider social conservatism that have led to these few, but visible, public condemnations.
These instances serve as a reminder that activism does not occur unilaterally. Progress in one arena can, and often is, met with resistance in others. Yet, I would argue that police and state abuses towards sexual and gender minorities are evidence of a larger social ambivalence that represents a reality closer to the lived experiences of people with same-sex sexual interests and gender-variant identities. Nepal’s society has been undergoing tremendous changes over the past two decades, both in polity and in terms of social values.
Consider that a quarter of Nepal’s economy now relies on millions of Nepalis who work and live abroad in order to send home remittances. The recent influx of capital has supported the growth and expansion of a modern consumer class. The migration of people and capital through the remittance economy and tourism has brought with it new media, fuelling new ideas and discussions about lifestyles, relationships and desires.
Many of these discussions have at their centre issues that involve gender roles and sexuality. Some women want careers that take them away from traditional gender roles, some don’t want to be married at a young age and some want to choose their own partners or spouses. None of these desires are uniform across the country and it would be a fallacy to assume that traditional Nepali values are gradually being replaced by ‘modern’ ones and its associated norms. Rather, many new ideas and desires are being created, adapted, and incorporated into people’s lives and identities in complex and uneven ways that often reflect the many dimensions of Nepal’s diversity – from social class and caste, to gender and sexuality, to religion and ethnicity, to name but a few.
I would argue that it is the larger socioeconomic processes that have been driving the change in mind-set, or lack thereof, towards same-sex sexual relationships and gender variance within Nepal. Day-to-day conversations with variously-identified Nepalis reveal that people’s lives are still largely constrained and shaped by a social conservatism that views most deviances from sexual and gender norms unfavourably. However, what is frequently noted by many of my contacts, both activists and non-activists alike, is that social attitudes in Nepal, especially those concerning gender and sexuality, are rapidly changing. The social freedom some young people are able to access now is unprecedented compared to what was possible in the past, and has opened up new possibilities for lifestyles that deviate from the social expectations of traditional Nepal to marry and have children early in adulthood. Yet, even with the speed of change, one of my friends shared with me how he felt that Nepal is still “not a place where it’s possible to be gay”. While sexual and gender minorities in Nepal are obviously Nepali, both politically and culturally, their experiences are also often felt as ‘out of place’ within their wider social contexts. Even though some do not experience this dissonance, many do feel the need to avoid scrutiny directed at them for deviating from sexual and gender norms.
For many who identify as gay, this feeling of being ‘out of place’ is often accompanied with a desire to leave. While Nepal’s larger socioeconomic changes have helped in opening up new avenues for expressing same-sex sexuality and gender variance, these opportunities have not necessarily come with more substantive social transformations in how they are understood or experienced. The dream of emigrating to a more liberal social context is also not unique to sexual and gender minorities and is perhaps a source of social reprieve for many ‘out of place’ people and groups from Nepal.
While migration and remittances are frequently framed in terms of Nepal’s economy, for many it has become an avenue to escape family pressures and social norms that affect all Nepalis, especially the young. For many, participation in the remittance economy or studying abroad is a way to stave off social pressures to marry and have children. Although the increasingly delayed age of marriage has not alleviated the pressure to marry someone from the opposite sex or the punishment for failing to do so, it has bought time for many people to plan their escape. Some do find spaces to live out their sexualities and gender identities within Nepal, but insulating yourself from family and social pressure while staying in the country often requires some level of financial independence or familial acceptance that is not easily or quickly obtained. It is interesting that the new opportunities, spaces and freedom that have been created for different relationships and gender performances are not the primary result of activism but are due to the larger underlying social-cultural changes in relationships and gender norms across Nepali society.
Social anxieties about sexuality and gender are not exclusive to those in same-sex relationships or gender-variant identities. For example, despite the work of many dedicated activists and organisations, many people seem unaware and confused about sexual subjectivities and often conflate sexual orientation with gender variance. Masculine women and effeminate men therefore become targets of ridicule or suspicion, but this lack of awareness also means that a relationship between two masculine men or two feminine women may escape notice. This provides easier avenues for some people in same-sex relationships to live out their sexualities or gender performance, without necessarily drawing social attention, and limits the backlash that might emerge with increased social awareness. However, the few misconceptions that many carry and the negative stereotypes associated with them, often make it difficult for people to convey or discuss their sexuality with others.
This tension surrounding how people self identify can be problematic for activists who seek to support rights within the framework of identities such as ‘LGBT’ and ‘third gender’. Although this is useful and important in upholding and asserting minority rights within legal frameworks, they often exist in contradiction to the social reality of Nepal, where many people who are gender variant or desire same-sex relationships do not identify as such, or do not want to be publicly identified in such a way. The battle to extend rights to self-identified LGBT individuals has been greatly limited by the fact that most people outside of activist circles do not desire to, or are incapable of, publically claiming such a space. Activist narratives, the lived realities of sexual and gender minorities, and the society in which both are positioned, are often in tension with each other.
This is evident in some of the common social views of same-sex relationships and gender-variant identities that persist. In particular, there is a widespread view that these relationships and identities are the negative influence of ‘modern’ culture, of how ‘gay culture’ is something foreign, brought in from ‘outside’ and is not part of ‘traditional’ Nepali culture and society. This narrative conveniently ignores the reality that same-sex relationships and gender variance have obviously been a part of Nepal’s society for as long as they have everywhere else.
However, legal activism is framed in terms of an ‘LGBT’ discourse, developed in European-American spaces, funded by international donors and heavily influenced by the global media. This reality has often resulted in a tension where Nepali sexual-rights activists have had to assert their ‘position’ within Nepal through the argument that same-sex sexuality and gender variance is a continuation of Nepali traditions instead of a modern-versus-traditional dichotomy that threatens established social orders. Both these perspectives stand in contrast to people’s experiences of their own sexuality and gender as socially constructed phenomena that is fluid and perhaps neither foreign nor ‘traditional’.
From this, it is evident that not all of Nepal’s recent changes have been well received. So even while socioeconomic transformations have opened up spaces and avenues for the expression of sexuality and gender, they have also closed spaces down. Quite a few of my friends from Nepal, who identify as gay, have told me that they are worried about how their families’ awareness of LGBT issues has brought them under increased scrutiny and suspicion. It’s perhaps no surprise, therefore, why some Nepalis feel like the only way to escape social scrutiny and the inevitable pressure to marry someone from the opposite sex is to leave their parents and the country, to look for spaces that either offer greater acceptance or at least freedom from the pressure to conform. Those who remain in Nepal are often faced with a difficult balancing act – aware of who they are and highly cognisant of how they might be judged if some of their thoughts, feelings or actions were to be made public.
What are fundamentally personal tensions, particularly those related to sexuality and gender, are having a tremendous impact on the course Nepal will, and is, taking. It is significant that some of the largest criticisms of Nepal’s recent constitution are undergirded with questions on citizenship, sexual rights and marriage. Although these social conflicts are yet to involve sexual and gender minorities, the lack of resolution and willingness to accept sexual and gender difference is having a tremendous impact on the lives of these individuals and the country overall.
Hopefully, the dedicated work of activists on issues of social justice, and the larger transformations taking place in Nepal will facilitate positive changes within the society and, more importantly, within the lives of the individuals who suffer most from the fear that their sexual or gender variances may be discovered. Yet, perhaps, for this to happen, it would be good for Nepali families and communities to shift their focus towards the possibility that people they love, and whom the country needs, might be planning their escape for want of more substantive transformations and acceptance for people who may or may not be all that different.
~ Danny Coyle is a Kathmandu-based researcher and an assistant editor of the anthology Pride Climbing Higher: Stories by LGBT people from Nepal.