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

according to the physical condition and psychological feelings of a person is
being established gradually. The concept that homosexuals and third gender
people are not mentally ill and it is their normal life style is in the process of
establishment.”
The court also relied on the Yogyakarta Principles and the 2006 Report of the UN High
Commissioner of Human Rights to illustrate the prejudice and violence being faced by
sexuality minorities due to the lack of sufficient legal protection.
It pointed out that the Interim Constitution of Nepal has guaranteed equality in Article 13 and
is supported by the Directive Principles of State Policy enshrined in Articles 33 & 34 which
require the repeal of discriminatory laws and provision of social justice. Together with this
were Nepal’s commitments under international treaties such as the International Covenant on
Civil and Political Rights, the International Covenant on Economic, Social and Cultural
Rights, and the Convention on the Elimination of All Forms of Racial Discrimination, which
are considered national law under the mandate of the Nepal Treaty Act, 1991, which provides
for the ratification of international treaties by Parliament thereby making such a treaty prevail
over domestic legislation 62 . The court observed:
And:
“These [transgendered] people have been compelled to appear in the public life
with the identity as determined according to their genital instead of their own
characteristics and it is very important to rethink the state of affairs in the context
of human rights and fundamental rights…We also should internalize the
international practices in regards to the enjoyment of the right of an individual,
changing world society and practices of respecting the rights of minority
gradually. Otherwise, our commitment towards the human rights will be
questioned internationally, if we ignore the rights of such people only on the
ground that it might be a social stigma.”
“Any provision that hurt the reputation and self-dignity as well as the liberty of an
individual is not acceptable from the human rights' point of view. The
fundamental rights of an individual shall not be shrunk on any grounds like
religion, culture, customs, values etc.”
The court held that there should not be discriminatory constitutional and legal provisions that
restrict people of a third gender from enjoying their fundamental rights; that Lesbian, Gay,
Bisexual, Transgender and Intersex people should not be deprived the enjoyment of their
fundamental rights only because of their sexuality and the State should make necessary
arrangements for people of a third gender. It observed that,
“…people with having third type of gender identity other than the male and
female and different sexual orientation are also Nepali citizen and natural person
as well, so they should be allowed to enjoy the rights with their own identity as
provided by the national laws, constitution and international human rights
instruments. The state has the responsibility to ensure appropriate environment
and legal provisions for the enjoyment of such rights. It does not mean that only
62 Section 9, Nepal Treaty Act, 1990
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