Published by Jurist. With Michael Bochenek.
On December 27, 2007, the Supreme Court of Nepal issued a decision that has been called “arguably the single most comprehensive judgment affirming protections for gender identity anywhere in the world.” The decision in Pant v. Nepal [PDF] found overwhelmingly in favor of the petitioners, a group of local lesbian, gay, bisexual, transgender and intersex (LGBTI) rights NGOs led by Sunil Babu Pant, president of the Blue Diamond Society, a sexual health and human rights organization founded in 2001. In addition to mandating that the government scrap all laws that discriminated based on sexual orientation or gender identity and establish a committee to study same-sex marriage policy, the court took the unique approach of establishing a third gender category.
In legal terms, the third gender in Nepal — denoted on official documents as “other” — is an identity-based category for people who do not identify as either male or female. This may include people who present or perform as a gender that is different than the one which was assigned to them at birth. It can also include people who do not feel the male or female gender roles dictated by their culture match their true social, sexual or gender identity.
There are other countries that have instituted third gender categories, but none nearly as comprehensive as Nepal. In 2005, India’s third gender citizens were allowed to register for passports as “eunuchs,” denoted by an “E.” In 2009, an “E” designation was added to voter registration documents. Shortly after Nepal announced it would include a third gender category on its census, India followed suit. In 2011, the Unique Identification Authority of India, administering a new government citizen ID number system, allowed “transgender” as a third gender option.
Australia and New Zealand both have “X” as an option in addition to “M” or “F” on passport applications. Bangladesh allows citizens to register to vote as “eunuchs.” The Supreme Court of Pakistan also ordered the government to issue third-gender ID cards but, three years later, not a single one has been issued. Without a comprehensive model to follow, Nepal’s LGBTI activists have worked tirelessly with the government bureaucracy to implement the category.
In the broadest implementation of the category yet, the 2011 Nepal census was the world’s first to allow people to register as a gender other than male or female. Enumeration was fraught with difficulties; the release of preliminary data with no mention of a third gender may mean that those who identified as such will be left out of meaningful data sets altogether.
Part of the 2007 decision in Pant ordered the government to issue citizenship ID cards which allowed “third gender” or “other” to be listed. Since then, only two citizens, through relentless personal advocacy, have successfully received documents that reflect their true gender identity. Without access to these properly-gendered documents, citizens cannot open bank accounts or inherit property, among other rights. Individuals have faced harassment after officials noticed discrepancies between gender appearance and official documents.
Several international law arguments can support Nepali activists in their fight for legal recognition. Official recognition of one’s gender identity is required to guarantee the right to recognition as a person before the law. Recognition as a person before the law is both a right in itself, guaranteed in numerous human rights instruments, and a critical means for the exercise of other rights. More generally, recognition as a person is essential to reflect the dignity and worth of every person and reaffirm our common humanity, as reaffirmed by the Yogyakarta Principles.
Reading the right to recognition as a person together with other rights strengthens the conclusion that states must give official recognition to one’s self-defined gender identity.
The state’s refusal to record a person’s self-identified gender identity on official documents touches, or very nearly so, the core of one’s sense of self. Such an intrusion on the core self arguably violates the right to privacy. It also treats differently those whose gender identity does not necessarily correspond with the sex they were assigned at birth, and it does so without a reasonable basis in violation of the right to freedom from discrimination.
Several cases from the European Court of Human Rights (ECHR) essentially apply this analysis. For instance, the ECHR found that Germany had failed to respect “the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination.”
The refusal of states to reflect chosen gender identity on documents may also violate the right to freedom of opinion and expression. The Yogyakarta Principles call on states to take all necessary measures “to ensure the full enjoyment of the right to express identity or personhood, including through speech, deportment, dress, bodily characteristics, choice of name or any other means.” The jurisprudential notes [PDF] to the Yogyakarta Principles suggest that the drafters had in mind violence prompted by, and state criminalization of, particular choices of dress. But the designation of gender is an expression of identity or personhood of the same order as a choice of name. A state’s refusal to accept a person’s self-identified gender identity for identification documents effectively compels that person to express another identity.
Forcing individuals to identify publicly as a gender other than the one with which they identify may also violate freedom of conscience. The innate nature of gender identity makes it more akin to a matter of conscience than one of opinion or expression.
As with religion and belief, the right to freedom of thought and conscience is absolute; it cannot be limited in any way. However, outward manifestations of religion or belief can be restricted if the limitations are “prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.” For that reason, the distinction between holding and manifesting a thought, matter of conscience, religion or belief is important.
A requirement to indicate on identity documents a gender different from one’s actual gender identity is arguably a form of coercion to hold or express a particular thought, matter of conscience or belief. But even if such a requirement is read as controlling only the manifestation of thought, conscience or belief, the requirement would not appear to pass the test of necessity.
The fact that international standards permit travel on passports that do not indicate sex casts considerable doubt on any public safety or public order justification; nor are there any compelling public health or moral interests in forcing people to bear documents listing a gender that does not correspond to their gender identity.
In addition, official acknowledgement of a third gender status may serve as a check on official and private acts of harassment and violence. The Committee Against Torture has noted that “actual or perceived non-conformity with socially determined gender roles” increases the risk that an individual will be subjected to harassment and violence. Reports of violence at the hands of police in Nepal and elsewhere in the world against those who do not conform to such gender roles bear out the committee’s observation.
Finally, official acknowledgement has positive implications for other human rights. Although the lack of accepted identity documents should not preclude the enjoyment of other rights, the reality is that identification is often required to attend school, hold a job, open a bank account, receive medical care, vote and conduct many other aspects of daily life. The lack of legal recognition can therefore lead to infringements on the rights to an education, to work, to an adequate standard of living, to the highest attainable standard of health, and to political participation, among other rights. It can increase the risk of exploitation and can impede the right to freedom of association.
Implementing a third gender category is not the only way to legally recognize and protect gender identity. However, Nepali activists’ experience advocating for and implementing the category demonstrate it to be a meaningful, rights-based recognition and protection measure.
Michael Bochenek is Director of Law & Policy at the International Secretariat of Amnesty International. Kyle Knight is a 2011-2012 Fulbright Scholar completing his research in Nepal. This article reflects the views of the authors and not necessarily those of Amnesty International. Bochenek and Knight have written a more in-depth analysis, Establishing a Third Gender Category in Nepal [PDF], in the Emory International Law Review.