Legal Gender Recognition in Nepal and Comparative Context

Abstract

The Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” as opposed to medical or other criteria. At the time, no other national apex court or national government had so clearly prioritized self-determination as the guiding principle for resolving matters concerning gender identity. The decision in Pant, however, focused on people of “third gender,” in other words people who identify as neither male nor female. Now, the Supreme Court of Nepal is considering the case of a transgender woman, Ms. Kapali, who is seeking to identify as female on her identity documents, not as “third gender” or “other.” Ms. Kapali is challenging government authorities that have rejected her requests.

This Article analyzes Ms. Kapali’s claim from the vantage point of comparative law. In the years since Pant was decided, a rapidly growing number of countries and supranational legal institutions have taken steps to protect individuals’ self-determination of legal gender, including that of individuals who wish to change their legal gender from male to female or vice versa. We chart this trajectory of change around the world and explain that the trajectory is underpinned by compelling human rights principles. This analysis suggests that comparative law—along with Nepal’s constitutional law and international obligations—strongly supports Ms. Kapali’s claim to gender self-determination on identity documents. Numerous countries have surpassed Nepal in protecting gender identity rights, but Ms. Kapali’s case presents an opportunity for the Supreme Court to position Nepal once again among the world’s leading jurisdictions on gender identity rights.

This Article helps to shape understandings about Ms. Kapali’s case, and it provides context for analyzing the Supreme Court’s forthcoming ruling. Although Ms. Kapali’s case in Nepal is the impetus for this Article’s comparative analysis, our discussion of comparative law is significant to other countries as well. Our article provides the most comprehensive study to date of gender self-determination laws around the world. It thus offers insights that are relevant not only to Nepal but also to other countries that are considering reforms to gender identification policies.

Keywords: Nepal, Pant, Kapali, legal gender recognition, gender identity, transgender, third gender