SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

social standing, religious belief, education or political view not inconsistent with the
provisions of the Constitution. The Thai Constitution also provides that measures determined
by the State in order to eliminate an obstacle to or to promote a person’s ability to exercise
rights and liberties on the same basis as other persons shall not be deemed as unjust
discrimination. 55
Constitutional frameworks in all the research countries lay down strong legal foundations for
equality irrespective of sex. Recent developments suggest that strides are being made to give
substance to this constitutional right be it in the area of employment or family and marriage
related issues. Notably, the most recent articulation of this is Nepal’s Interim Constitution,
which enumerates what may be termed as a ‘new generation’ of constitutional rights
including specifying women’s reproductive health rights and protection from violence. Part
of this expansive understanding of fundamental rights has also been reflected in
developments in statutory law where gender equality has been clearly enunciated, which has
great significance in relation to sexual health. 56
However, as the discussions in the following sections and chapters demonstrate the content of
the right to equality differs in the research countries and particularly in the areas of personal
and customary laws, the recognition and enforcement of the right of non-discrimination based
on sex has been inconsistent. 57
1.2 Non -discrimination based on Sexual Orientation
While all the research countries provide general constitutional guarantees of equality
including on the specific ground of ‘sex’, none of them specifically prohibit discrimination
based on sexual orientation. However, during the process of the drafting of the Constitution
of Thailand in 2007, a letter of intention from the Constitutional drafting committee
reportedly stated that the committee felt there was no requirement for the specific ground of
‘sexual orientation’ to be included as a prohibited ground for discrimination as it was covered
by the ground of ‘sex’. 58 However, a verifiable English translation of the letter of intention
was not available for the purposes of this review.
Although none of the countries have specific constitutional prohibitions on discrimination
based on sexual orientation, courts in Nepal and India have interpreted their respective
Constitutional guarantees of equality to extend to sexuality minorities in certain contexts
(recognition of identity rights in Nepal and decriminalization of men who have sex with men
in India).
In Sunil Babu Pant v. Government of Nepal, 59 the Nepal Supreme Court considered a writ
petition by an NGO working with sexuality minorities claiming violation of their equality
rights. The petitioner sought full citizenship rights for members of the third gender, the
55 Section 30, ibid.
56 See Nepal’s omnibus Act to Amend Some Nepal Acts for Maintaining Gender Equality, 2006
57 See, among others, Chapter 3 on State Regulation of Marriage and Family
58 Likhitpreechakul, Paisarn, “The Tale of the Pink Toilet - Transgender Rights in Thailand”, 3 November 2008
in International Gay and Lesbian Human Rights Monitor, Global Monitor, available at
http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/552.html
59 Writ No. 917 of the year 2064 BS (2007 AD), Supreme Court Division Bench, 2007. The authors have relied
on an English translation by the National Judicial Academy, Nepal in the NJA Law Journal 2008 available at
http://njanepal.org.np/Anex_2.pdf.
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