Gender and Inclusive Justice Case: Sunilbabu Panta vs. Government of Nepal et.al. , NKP 2074 B.S, No. 9, DN: 9875
Case: Mandamus
Plaintiff: Sunilbabu Panta et.al.
Defendant: Government of Nepal et.al.
Decision Number: 9875
The case is relating to gender identity, citizenship, dignity, equality, and the rights of sexual and gender minorities.
Facts of the Case:
Sunil Babu Pant and other members of the sexual and gender minority community filed a writ petition before the Supreme Court of Nepal.
One petitioner had applied to the District Administration Office for a revised citizenship certificate showing the person’s gender identity. The application was not processed. Sunil Babu Pant had earlier received a citizenship certificate showing “male” based on his biological sex. He later wished to have the certificate changed to show “other”, according to his actual gender identity.
The petitioners explained that many people receive citizenship at the age of sixteen. At that age, a person may not yet understand or be able to express their sexual orientation or gender identity. Some people understand their actual gender identity only later in life. They therefore argued that a citizenship certificate issued on the basis of biological sex should be capable of correction.
Nepal had already adopted laws and a 2069 directive allowing eligible sexual and gender minorities to obtain citizenship with “other” in the gender field. However, the authorities treated the directive as applying mainly to new citizenship applications. They did not clearly allow people who already had citizenship showing “male” or “female” to amend it.
The petitioners argued that forcing people to use identity documents that did not match their actual gender identity caused humiliation, fear, and social exclusion. It also made daily activities, education, employment, and access to public services difficult.
Plaintiff’s Claims:
The petitioners argued that everyone has the right to dignity, identity, and personal autonomy. They claimed that gender should not be determined only by biological characteristics. They asked the Court to allow existing citizenship certificates to be amended to “other” based on genuine gender identity and to correct other official documents accordingly.
Defendants’ Arguments:
The Government argued that existing laws already allowed eligible sexual and gender minorities to obtain citizenship showing “other”. It relied on the Citizenship Act, Rules, and the 2069 directive. It maintained that the petitioners should follow the existing procedure and argued that no discriminatory action had been taken.
Legal Questions:
- Whether a person has the right to have citizenship reflect their self-identified gender?
- Whether an existing citizenship certificate can be amended when its gender entry does not reflect the person’s gender identity?
- Whether refusing such amendment violates dignity, equality, privacy, and personal autonomy?
- Whether other personal documents should also be corrected after amendment of citizenship?
Different Court Decisions:
Supreme Court Decision:
The Supreme Court held that every person has the right to live with dignity and with a recognised identity. This right also applies to people with different gender identities and sexual orientations.
The Court held that gender identity is based on a person’s inner experience and personal understanding. It is part of personal autonomy and self-determination. The State, society, or other people should not decide a person’s gender only from biological characteristics.
The Court noted that Nepal’s Constitution, Citizenship Act, Citizenship Rules, and the 2069 directive already recognised the existence and rights of sexual and gender minorities. Therefore, refusing to amend an earlier citizenship certificate merely because it had originally been issued on the basis of biological sex would deny the existence of the person’s actual identity.
The Court found that forcing a person to use documents showing an identity different from their own could cause humiliation, fear, invisibility, and loss of community belonging. It could also interfere with equal access to education, work, public services, and other rights.
The Court recognised that some people may understand their gender identity only after receiving citizenship. A person should not lose the right to correct the certificate simply because the original document was issued when the person was too young to understand or express their identity.
The Court therefore ordered the authorities to amend the petitioners’ citizenship certificates by recording “other” in the gender field. It also directed the Government to make legal and administrative arrangements so that important personal documents, including educational certificates, could be corrected in accordance with the revised citizenship.
The Court further directed the Government to maintain proper records, create suitable rules, coordinate between relevant authorities, and ensure that sexual and gender minorities were not subjected to discrimination or humiliation.
Principles Established:
- Every person has the right to live with dignity and a recognised identity.
- Gender identity is part of personal autonomy and self-determination.
- A person’s gender cannot be determined only by biological sex.
- Sexual and gender minorities are entitled to equal constitutional protection.
- The State must respect a person’s genuine self-identified gender.
- An existing citizenship certificate can be amended when its gender entry does not reflect the person’s gender identity.
- The right to amend citizenship is not limited to people applying for citizenship for the first time.
- A person may seek correction after understanding their gender identity later in life.
