Two lower courts in Nepal have denied a couple recognition of their marriage, in defiance of the Supreme Court’s recent interim order to register same-sex marriages while legislative change is pending. The couple – Maya Gurung and Surendra Pandey – are considering seeking redress at the Supreme Court.
Gurung, a transgender woman who is legally recognized as male, and Pandey, a cisgender man, held a Hindu wedding ceremony in 2017, and first attempted to register their marriage in June at the Kathmandu District Court, following the Supreme Court’s order. When that court rejected their registration, saying it did not need to recognize a couple that was not one legal male and one legal female, they appealed to the Patan High Court.
In their ruling, the high court judges said that because the Supreme Court order named the Prime Minister and Council of Ministers, it was the responsibility of the federal government to change the law before the lower courts could register such marriages.
Nepal’s civil code currently only recognizes marriages between one man and one woman. The Supreme Court attempted to rectify that by ordering the creation of an interim registry for nontraditional marriages until parliament changes the law. The two lower courts are now reversing the logic by claiming that the national law must be changed first.
Nepal’s Supreme Court has a globally-recognized record of rulings upholding the rights of lesbian, gay, bisexual, and transgender (LGBT) people, although implementation has been piecemeal. In 2007, the court ordered the government to form a committee to study same-sex marriage. In 2015 that committee recommended the government “grant legal recognition to same-sex marriage on the basis of the principle of equality.” However, successive governments failed to bring legislation to the parliament, leading to further court rulings. Earlier this year the court ordered the government to recognize the marriage of a Nepali man who had married a German man.
By refusing to register same-sex marriages, in spite of the Supreme Court ruling, lower courts are undermining Nepal’s reputation as a legal leader on sexual orientation, gender identity, and human rights, and risk violating the constitutional protections for sexual and gender minorities. Swift clarity and equality will benefit the couples who want to register their marriages
