<br><EM>Pratyush Nath Upreti</EM>

April 3, 2012, 5:45 p.m. Published in Magazine Issue: Vol. : 05 No.-18 Mar. 30 -2012 (Chaitra 17,2068)<br>

The only source of knowledge is experience (Albert Einstein). Every experience makes you learn and helps to enlighten others. I too had a wonderful experience of knowing third gender.

It was a Monday afternoon when I was coming from Itahari to Biratngar with a lot of satisfaction and excitement, as I got the license to drive. After a hectic time, I boarded the bus. A man, aged around thirty eight, came and sat beside me. We started our conversations about the political situation of Nepal; gradually, we started sharing our views with comfort. After a little more of conversation, he came close to me. When my senses came alive and my active response from my stimulus, it made me feel that there is something fishy, and I gestured at him with anger…. and he quickly responded to me by saying “are you gay”? Spontaneously, I replied, “I am not a gay, I support gayism”.  Till I reached my destination, I had a nice experience to know him as a person and the difficulties he faced being from the third gender. He narrated his story: he had two daughters and a son. I asked him: if you were a gay, then why did you get married. He answered that because of the society he could not tell his parents about his being a third gender. To marry as a transgender is looked by the society as a social evil. He was aware of consequences like hatred and discrimination. I was in the intermediate level when this incident happened, now I am pursuing law when I realize how LGBT community is facing discrimination in our society.

It reminded me of the law lecture delivered by Justice G.N. Ray, former supreme court judge of India, where he said that biological existence is not the goal of human life. A man must have a meaningful life touching all facets of a dignified life. To achieve this, the most important component is liberty in its full manifestation. Therefore, life and liberty are inseparably intertwined. Man is not only born free but has inherent right to live free.  The religious script of the Hindus, the 'Bhagvad Gita' mentions, that after passing though numerous life forms, a creature attains the highest living form of mankind. The bible indicates that God has created man in his image. In Nepal, homosexual and third gender are considered as minorities and are subjected to inequality and continuously restricted to enjoy all facets of a dignified life.  We are all fully aware of several incidents which show that these minorities have been victimized.

However, in Sunil Babu Pant & others vs Nepal Government, the Supreme Court made an historic decision, ordering the Government of Nepal to recognize third gender according to their gender identity and protect sexual and gender minority rights as natural persons.

If we analyze the preliminary draft prepared on Fundamental Rights and Directive Principles by Constituent Assembly, it has been expressly  mentioned about the equality status to any person inspite of color, sex, race, caste, tribe, gender, sexual orientation and biological condition. This shows that upcoming constitution will remove the discrimination faced by these communities.

This provision is similar to the Constitution of South Africa, which has seeks to ensure non-discrimination on the basis of sexual orientation. South African Constitutional Court has construed that no person is subjected to the discrimination on grounds of sexual orientation which includes the third gender as well.  In the same line, the constitution of Fiji has incorporated a similar provision.

The Supreme Court decision, however, remains on paper. The government is still not able to implement the decision. It has come to light that, in fact, in many districts, many third gender people are denied Citizenship ID,  the officer arguing, that they are  not authorized by the Ministry to issue the Citizenship ID to them.

Nonetheless, the Supreme Court decision and support from social activists have led to the third gender gaining recognition and on verge of getting legal rights. In recent years, Nepal has become more gay-friendly. The main problem with this issue is of social stigma, so homosexuality is still a taboo and there is no specific law against gay or same-sex marriages while, decision of Supreme Court is not implemented.

What I believe is, one should respect its culture, tradition and religion but should not allow creation of taboos, which lead to discrimination against certain people. I think it’s the youth who can eliminate the discrimination in society because one must know that law only governs one’s action but never changes the thinking of the people, so it can be a weak tool for social change.  The challenge for Nepal is not only a political change of getting legislation, but the challenge is winning the hearts and minds of the family members and of the society. Law can only protect us from discrimination but cannot eliminate discrimination. Youth can only end discrimination because older generations, with time, have developed a mindset which is difficult to change whereas other people are immature to understand about transgender people.  We youth should come for transforming society’s understanding of gender in order to make our country safe for all people, regardless of gender identity or expression. People need to be open minded enough to discuss this issue based on rational grounds. Let us not analyze “who said what when”, instead we need to analyze our self, what we are doing. I think to hate for a biological susceptibility is to hate the human soul.



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