Further othering the other

When women, who have fought for decades for their right to provide citizenship to their children independent of the fathers’ proof of nationality, are slighted in the draft of the constitution, it is (almost) unthinkable that the lawmakers would react differently

There is a song sung by two women while cutting grass in the hills of this country. The women are married and have moved to their husbands’ village far from their parents’. The song is about the alienation they feel in this strange land, where they are not sure if they can count on anyone when in trouble.

Na aafno bhannu, na parai bhannu
Yeha ta ko chhara
Yeha ta ko chhara mero lailai
Yeha ta ko chhara

When the draft of the constitution was recently made public, a lot of women must have felt the way the two women do in the song—that they are alone in their fight for equality, and especially so if the woman is a lesbian or a transgender. While the constitution protects certain rights of heterosexual (suggested, not mentioned explicitly) women, it treats homosexual, bisexual, transgender and intersexual (LGBTI) women (and men) as if they do not exist. And nowhere is this disregard for the rights of the LGBTI community felt more acutely than in the articles on citizenship.

As the debates on a mother’s right to pass citizenship to her children show, the articles on citizenship are not just about a person’s right to a piece of paper. It’s about gender equality, about people’s right to marry, have children and make sure that the children are protected by the laws of the nation they want to be a part of. Unfortunately, not just women, but also the LGBTI community have lost this fight for gender equality.

The chapter on citizenship focuses (inadequately) only on heterosexual couples. It mentions that only those children born to a Nepali father and a mother or whose parents are both Nepalis when they apply for citizenship are eligible to obtain Nepali citizenship by descent. Similarly, the article on naturalised citizenship is focused solely on a Nepali man married to a foreigner woman or a Nepali woman married to a foreigner man. In the minds of the drafters, who else would want to get married and have children? In essence, the draft of the constitution asks LGBTI couples to go somewhere else if they cannot live right here, ostracised forever.

This draft, if passed intact, will push sexual minorities further into the margins of society, reversing the gains they have made so far in their struggle to live a life free from discrimination.

A battle seemed to have been won when in December 2007 the Supreme Court gave the government orders to end all laws discriminatory to LGBTI people. At the same time, although the apex court did not rule the community’s right to marriage constitutional outright, it asked the government to form a panel and study the feasibility of same-sex marriage.This decision felt like a small victory and was celebrated as thus.

The panel took six years—five more beyond the deadline—to release its report. When it finally did so in February earlier this year, it was supportive of same-sex marriage and recommended that the government make/amend laws accordingly. It then seemed that the Civil Code, (still) currently in parliament, would now also be forced to change its restrictive definition of marriage, which currently says a formal relationship can only exist between a man and a woman.

Hopefully, after critics look at the draft of the constitution and the public provides its feedback by the woefully short deadline of July 23, the lawmakers will amend the discriminatory provisions. In fact, they need not do much. Just listen to the activists demanding that the ‘and’ provision—in which a person has to show proof of her father’s and mother’s citizenship—be replaced by the ‘either’ provision—in which a proof of either the mother’s or the father’s citizenship is enough. And then add a sub-clause that talks about children adopted and/or raised by LGBTI couples.

Unfortunately, the chances of this happening are hairline thin. When women, who have fought for decades for their right to provide citizenship to their children independent of the fathers’ proof of nationality, are slighted in the draft of the constitution, it is (almost) unthinkable that the lawmakers would react differently to the issues of the LGBTI community. For a lot of them, the concept of the rights of the LGBTI community is an imported one, as if sexual minorities were never a part of this society.

Towards the beginning of the song, the women sing:

Birano deshma basnethiena
man kele bhulayo
man kele bhulayo mero lailai
man kele buhlayo

Sadly, there is plenty wrong in the draft of the constitution to occupy any thinking person’s mind.

Published on 11 July 2015, The Kathmandu Post

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