Gender and Inclusive Justice Case: Sunil Babu Panta vs. Government of Nepal & Others, NKP (2064), No.4, DN: 7958
Case: Certiorari, Mandamus and others
Plaintiff: Sunil Babu Panta
Defendant: Government of Nepal & Others
Decision Number: 7958
The case is relating to the constitutional rights of LGBTQI people, including equality, gender identity, privacy, dignity, and protection from discrimination.
Facts:
Sunil Babu Pant, the Executive Director of Blue Diamond Society, filed a public-interest writ petition against the Government of Nepal. The petition was filed on behalf of lesbian, gay, bisexual, transgender and intersex people and others with different sexual orientations and gender identities.
At the time, many people in these communities faced discrimination and social exclusion. Some also faced violence, harassment and humiliation. These problems existed within families, society and public institutions.
They also faced difficulties in obtaining citizenship, passports and voter documents. Access to education, employment and public services was also difficult for some people.
People whose gender identity did not fit into the traditional male or female categories faced additional problems. Officials often had no clear system for recording their gender identity. As a result, some people received official documents that did not match their identity.
The petition also raised concerns about the treatment of same-sex relationships. The existing legal and social system largely recognised heterosexual relationships. Same-sex relationships between consenting adults did not receive the same legal recognition and protection.
The petitioners relied on the fundamental rights guaranteed by the Interim Constitution of Nepal, 2007. These included the rights to equality, dignity, liberty and privacy. They also relied on international human-rights instruments binding on Nepal, including the ICCPR and ICESCR.
Plaintiff’s Claims:
The petitioners claimed that people with different sexual orientations and gender identities were entitled to the same constitutional rights as everyone else. They argued that discrimination and denial of identity documents violated their rights to equality, dignity, privacy and liberty.
They asked the Court to recognise a third-gender category. They also sought identity documents based on a person’s gender identity. They asked for protection from discrimination and violence. They further requested a committee to study the legal recognition of same-sex marriage.
Defendants’ Arguments:
The Government and Parliament argued that constitutional rights were already available to all citizens. They said that the petitioners could obtain citizenship and other documents under the existing law.
They also argued that the petition did not clearly identify a specific discriminatory law or government action. They maintained that creating or changing laws was mainly the responsibility of Parliament. They therefore asked the Court to dismiss the petition.
Legal Questions:
- Whether LGBTI people are entitled to the same constitutional rights as other citizens?
- Whether denying or restricting identity documents based on gender identity violates equality and identity rights?
- Whether consensual sexual relationships between adults are protected by privacy and personal liberty?
- Whether the State has a duty to create or amend laws to protect LGBTI people from discrimination?
Different Court Decisions:
Supreme Court:
The Supreme Court held that the petition was a genuine public-interest case. It concerned a socially marginalised group whose members faced difficulties in protecting their rights individually.
The Court recognised that people with different sexual orientations and gender identities are entitled to the same fundamental rights as other citizens. It held that the State could not discriminate against a person because of their sexual orientation or gender identity.
The Court also recognised the right to privacy in consensual relationships between adults. It held that such relationships fall within personal freedom. The State could not interfere merely because the relationship was between people of the same sex.
The Court also addressed gender identity. It directed the State to make appropriate arrangements for people whose gender identity did not fit into the traditional male or female categories.
The Government was directed to make or amend laws and administrative arrangements so that LGBTI people could enjoy their rights without discrimination.
The Court also directed the Government to form a committee to study the legal and social aspects of same-sex marriage. The committee was to make recommendations on its possible legal recognition.
The petition was allowed in important respects. The Court issued directive orders for the protection of LGBTI rights and necessary legal reform.
Principles Established:
- LGBTI people are entitled to the same fundamental rights as other citizens.
- Sexual orientation and gender identity cannot be grounds for unconstitutional discrimination.
- A person’s gender identity must be respected.
- People have a right to identity and appropriate official documents.
- Privacy protects consensual intimate relationships between adults.
- Personal liberty includes the freedom to choose intimate relationships.
- Social prejudice, tradition or culture cannot justify denying fundamental rights.
- The State must create appropriate legal and administrative arrangements for equal enjoyment of rights.
- Public-interest litigation can protect the rights of socially marginalised groups.
