Measured Hope: India & Nepal’s Long, Similar Journeys to LGBTQIA+ Equality

Four years after officially scrapping Section 377 which criminalized homosexual sex acts from the Penal Code, India’s Supreme Court has seen yet another landmark ruling in favor of LGBTQIA+ members of Indian society. In a Supreme Court ruling issued on August 28, justices DY Chandrachud and AS Bopanna ruled that “non-traditional families” including those formed by Queer members of society, are entitled to the same social benefits as those enjoyed by “traditional” families. The ruling stated, “Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.” 

The decision, according to the ruling, was arrived at by considering that most families in the country don’t actually fall under the traditional heteronormative foundation of the family unit. “This assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with,” the judgment went on to say. 

Massive Wins 

India, though a few years behind, has now joined the likes of Nepal and Thailand, which recently legalized same-sex marriage, in increasingly safeguarding the rights of Queer individuals in society. The battle has been hard won through legal action, and bold rulings by judges such as Judge Anand Venkatesh, who, in June 2021 ordered that the country officially implement regulations protecting Queer people’s rights through the elimination of anti-LGBTQIA+ discrimination, stating in his ruling “Ignorance is no justification for normalizing any form of discrimination.”

This sort of bold move happened in neighboring Nepal, which has been hailed as a bastion of LGBTQIA+ rights in the region, only years before. After a Supreme Court decision in Pant v. Nepal in which the presiding bench officially ordered the government to legally recognize a third gender category, what followed was a sweeping audit of the country’s laws, especially those that discriminated against LGBTQIA+ individuals. 

A committee was formed to study the legal recognition of same-sex relationships, while the government identified over 100 laws that needed to be repealed or amended to curtail discrimination against LGBTQIA+ members of society. In 2010, Nepal’s Election Commission added a third gender option to its voter registration rolls. Following this move, Nepal became the first country in the world to include a third gender in ifs federal census, while the government began issuing three-gender passports, and Nepal became the world’s 10th country to enact specific constitutional protections for LGBTQIA+ members of Nepali society.  

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Long Road Ahead 

Though the landmark ruling is a step in the right direction and provides even more protection and recognition to LGBTQIA+ individuals in India and constitutional protection of said individuals in the Nepali constitution, much more still needs to be done. Like Nepal, India still doesn’t recognize same-sex marriage. Following the raft of amendments and protections implemented by the Nepali government, an 85-page report submitted to the Prime Minister’s office recommending the legalization of same-sex marriage by a committee convened in 2015 to study same-sex marriage is yet to be translated into law seven years on. The Nepali 

Civil Code still defines marriage as when “a man and a woman accept each other as husband and wife.”  

The Indian Queer community’s own fight for marriage rights has been mired in political machinations as the issue has turned into a political football kicked between the conservative ruling party and the more liberal opposition factions. Tushar Mehta, a solicitor general at the BJP-Ked central government, on September 14, 202o, told the Delhi High Court that same-sex marriage “wouldn’t be permissible” under the Hindu Marriage Act and Special Marriage Act because it allegedly went “Against our society and our values. Mehta also went further to claim that the 2018 striking down of Section 337 “merely decriminalizes [homosexuality]… It does not talk about marriage.”

Societal discrimination in the two countries doesn’t end there. In an interview with the Kathmandu Post, Rukshana Kapali, a Queer activist lamented, “The conversation regarding queer rights has not gone beyond the 2007 verdict. We are still treated like third-class citizens.” Queer members of Nepali society continue to face discrimination and harassment and are victims of attacks that might even end in death. Due to discrimination in hiring practices, many turn to sex work to make a living, an illegal activity in Nepal that leaves them exposed to further harassment at the hands of police. Furthermore, Nepal’s Criminal Code only defines rape as the forceful act committed by a man to a woman, failing to take into account possible same-sex assaults, especially against cisgender males. 

Likewise, the front of opposition against same-sex marriage presented by India’s ruling party has received great support from netizens on Twitter, with many regurgitating tried and true homophobic points of opposition such as homosexuality being an unnatural act and how it is incongruous to Indian culture, despite evidence that India and those of Hindu faith have had a two-millennia same-sex history of acceptance of diverse gender identities and sexualities. 

Evidently, there is still more to be done to achieve true equality and parity in both India and Nepal, but the courage and boldness exhibited by members both countries’ Queer members of society, and their use of the legal system to fight for their freedoms when other avenues failed, provide a blueprint for other countries conservative countries to decriminalize homosexuality and enshrine protections for their Queer populations, tailor-making human and sexual rights solutions, while not compromising on their national integrity or identity. In the case of Nepal, “Throughout, activists embraced the often-incomprehensible fluidity of Nepali politics while demanding that their fundamental rights be respected,” according to Kyle Knight, a researcher with LGBT Rights Program at Human Rights Watch. 

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