And India is still mulling over it; the Indian Supreme Court is yet to give its final verdict on Section 377, which criminalises gay sex.
But Nepal leads the way: in a historic judgement, delivered on 17 November, Nepal’s Supreme Court not only reiterated that LGBTIs are ‘natural persons’, entitled to equal rights, identity and expression, regardless of their sex at birth, but has also set up a commission that will recommend a same-sex marriage act for the Nepal government.
What made this extraordinary moment possible? One reason is clearly the tireless activism of LGBTI groups in Nepal, led amongst others, by the first openly gay member of Nepal’s constituent assembly, the Communist Party of Nepal (United) representative Sunil Babu Pant. Another factor seems to be the participation of LGBTI in campaigns for a democratic, secular Nepal, a process that led to the relinquishing of the monarchy by King Gyanendra in April, and a new constituent assembly in which the Maoists have the majority.
As Sunil Pant himself said, on a recent visit to India:
In Nepal, the LGBTI communities were part of the campaign for garnering votes for the Communist Party of Nepal. They approached me to campaign and I managed to secure 15,500 votes. It makes a statement that LGBTI people are interested in matters of politics and governance and not just sex. The campaign not only gave LGBTI issues visibility but a platform to negotiate for rights.
And a final interesting possibility raised by a Global Voices commentator from Nepal, is that the country’s predominantly Hindu culture is more accepting of gay rights. She quotes an excerpt from Ruth Vanita’s essay on Homosexuality and Hinduism, in support:
In 2004, Hinduism Today reporter Rajiv Malik asked several Hindu swamis (teachers) their opinion of same-sex marriage. The swamis expressed a range of opinions, positive and negative. They felt free to differ with each other; this is evidence of the liveliness of the debate, made possible by the fact that Hinduism has no one hierarchy or leader. As Mahant Ram Puri remarked, “We do not have a rule book in Hinduism. We have a hundred million authorities.
However, while this argument should surely have traction in India – and is used by sexuality rights advocates – the Indian government’s stand has been, rather ironically, more Victorian than Vedic. Whether the courage of Nepal’s jurists inspires their colleagues in India, remains to be seen. This is one case of cross-border trafficking that I would welcome.