Code drafters at a loss over LGBTI concerns

- Weena Pun, Kathmandu

Sep 2, 2014-

The Criminal and Civil Codes drafters are confused about how to include the concerns of the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community in the bill, said officials at the Law Ministry.

Drafts of the codes were submitted to the Prime Minister’s Office (PMO) four years ago, but they were sent back to the Law Ministry for conspicuously excluding the concerns of the LGBTI community, among others.

For instance, the Civil Code draft submitted to the PMO defines marriage as the decision of a man and a woman to accept each other as husband and wife. Similarly, the Criminal Code draft submitted to the PMO states that the gender minorities have been excluded because the drafters have limited knowledge on them. Hinting at the LGBTI community, the draft, however, says that any consensual “unnatural” sex cannot be deemed criminal. “Unnatural” sex remains undefined in the draft.

“As we revise the drafts, we are unsure about how to address the concerns of the LGBTI community. Should we make the changes to one act at a time or to all 300 plus acts at the same time,” said Kamalshali Ghimire, joint-secretary at the Ministry of Law and Justice, who was also the member-secretary of the Civil Code drafting committee.

He said a directive from the ministers or a constitutional guarantee of the rights of the LGBTI community would help expedite the process. “Until that happens, the final draft of the Civil Code might not include the issues of the gender minorities,” he said.

LGBTI rights activists blame the government for failing to include a representative from the gender minority community in the taskforces assigned to draft the two acts. The committee formed to draft the same-sex marriage bill does not have a representative of the LGBTI committee as its member either.

A month before the then Cabinet decided to formulate new acts to replace the Muluki Ain of 1963 in December 2008, the Supreme Court had ordered the government to ensure rights of the gender minorities, including the right to same-sex marriage. Subsequently, an expert committee was formed to draft the same-sex marriage act.

“You cannot just write a caveat and apologise for not knowing enough about us. They should have included more women and at least one person from our community,” said Kedar Maharjan, an LGBTI rights activist.

Though officials at the Health Ministry, which is delegated to draft the same-sex marriage bill, said the document would be ready soon, Maharjan said the bureaucracy was hesitant to finalise it before new constitution is promulgated. “I was told by a drafting committee member that a same-sex marriage act before the constitution would invite chaos,” he said.

The Interim Constitution of 2007 states that no general law should discriminate against a citizen on the basis of sex. But the word, ‘sex’, remains undefined and the LGBTI rights advocates say unless the constitution specifies that the definition of ‘sex’ also includes gender minorities, people, including lawmakers, will assume that the word only means ‘male’ and ‘female’.

Published: 03-09-2014 09:15

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