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Legal Recognition of Third Genders

Pakistan and Nepal surpass the United States in the quest for true gender equality.

Individuals of the genderqueer community in the United States, who neither identify as male or female, desire a time when they will no longer be legally ostracized when seeking to amend or obtain some of the most fundamental and essential documents one can possess (e.g. birth certificates, identification cards, driver’s licenses, and passports). While this is far from a reality, Nepal and Pakistan have made strides towards legal recognition of individuals whose gender identity falls outside of the male/female binary[1] and, hopefully, the United States is taking notes.

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The Supreme Court of Nepal, in its effort to address the oppression of individuals who do not identify as male or female, issued a 24-page opinion, currently seen as an essential breakthrough for human rights activists.[2] In Pant v. Nepal, the Court legally recognized a third category of gender.[3] This third category is described as “third gender” and allows individuals who identify as such to check the box of “other,” rather than male or female, when seeking to acquire or amend identity documents.[4]

The Supreme Court of Nepal affirmed that individuals of the third gender are human beings and citizens of Nepal who deserve the same rights and protections as their heterosexual counterparts.
Petitioners asserted that it is the obligation of the state to guarantee fundamental rights to all people, including the transgender community of Nepal.[5] However, Respondents argued that the petitioners had no standing to bring this suit, that the identities of “homosexuals” and third gender individuals were a consequence of mental perversion, and that there was no evidence that the state had discriminated against this group of individuals. Despite the respondents’ contentions, the Court found in favor of the petitioners without fully discussing the rights that had been denied to Nepal’s third gender community.[6]

The court rebutted the respondents’ assertions by referencing notable international court opinions, the Constitution of Nepal, multiple human rights editorials and, at one point, Wikipedia.[7] The Court was clear in defining what it meant when it referenced the terms sexual orientation, gender identity, lesbian, gay, bisexual, transgender, and transsexual.[8] It affirmed that individuals of the third gender are human beings and citizens of Nepal who deserve the same rights and protections as their heterosexual counterparts.[9]

While the Court rebutted and dismissed archaic notions of individuals of the third sex being sexual deviants, the most notable aspect of this opinion is the holding. Here, the Court asserted:

“As the people with third type of gender identity other than the male and female … are also Nepali citizens and natural person they should be allowed to enjoy the rights with their own identity as provided by the national laws, the Constitution and international human rights instruments. It cannot be construed that only ‘men’ and ‘women’ can enjoy such right and other people cannot enjoy it only because they have a different gender identity and sexual orientation.”[10]

In essence, this holding is directly in line with a popular phrase from the United States’ Declaration of Independence – “All men are created equal.”[11] And despite the Founding Fathers’ assertion, the United States has yet to allow the transgender community to feel a sense of equality by allowing the community to legally identify as a gender outside of the male/female binary.

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Pakistan has also enacted progressive regulations to protect the gender minorities in its community. In 2009, the Supreme Court of Pakistan legally recognized the hijra, also known as eunuch, community-thus allowing them to place the letter ”E” on identity documents.[12] As detailed by BBC News, hijras are men castrated at an early age for medical or social reasons.[13] There are an estimated 300,000 hijras in Pakistan that were previously deprived of the opportunity to obtain identity documents dawning their true gender identities or the ability to inherit property.[14]

While there are a wide variety of reasons the United States may not attempt to implement a third gender category on identity documents, there is one important reason why these models should be adopted:  EQUALITY.
Although this opinion is considerably shorter than the Supreme Court of Nepal,[15] it follows the same presumptions.[16] The Court noted that while the hijra community is invariably distinct from the heterosexual community, “they are still citizens of Pakistan and deserving of the same protections of the law.”[17] The opinion further asserted that because hijras are, and will “continue to be citizens of Pakistan, no discrimination, for any reason, is possible against them as far as their rights and obligations are concerned.”[18] This is a very important assertion, and once again, is directly in line with the US’s Declaration of Independence.[19]

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Legal recognition of third-genders in the United States is strikingly different than in Nepal and Pakistan partly due to how individuals interpret the U.S. Constitution. While Originalists may argue that the intent of the framers was not to protect the transgender community, many will look to Pakistan and Nepal as an example of evolving politics – politics that change and develop to meet the needs of the community.
To aid in the adaptation of these international models, supporters in the U.S.  may advocate for educating the legislature and various organizations that regulate identity documents. This education would possibly include an overview of gender and sexuality, the importance of mandating national gender progressive laws, and the impact these laws would have on various governmental entities. While there are a wide variety of reasons the United States may not attempt to implement a third gender category on identity documents (for example, the war on terrorism, census considerations, tracking, etc.), there is one important reason why these models should be adopted:  EQUALITY.

 


[1] Pant v. Nepal, Writ No. 917 of the Year 2064 BS (2007 AD) 262, 276. Translated in N.A.J. Law Journal, 2008.

[2] UN Congratulates Nepal for Recognizing Third Gender, International Lesbian, Gay, Bisexual, Trans, and Intersex Association http://ilga.org/ilga/en/article/nL0VnRD1Bb (last visited October 27, 2012).

[3] Pant, Writ No. 917 at 278.

[4] Micheal Bochenek & Kyle Knigh, Establishing a Third Gender Category in Nepal: Process and Prognosis, 26 Emory Int’l L. Rev. 11, 13 (2012).

[5] Pant, Writ No. 917 at 263.

[6] Id. at 262-286.

[7] Id.

[8] Id. at 271-272.

[9] Id. at 278.

[10] Id. at 283-284.

[11] Declaration of Independence para. 2 (U.S. 1776).

[12] Pakistani Eunuchs to have Distinct Gender, BBC News http://news.bbc.co.uk/2/hi/south_asia/8428819.stm, (last visited Oct. 27, 2012),

[13] Id.

[14] Id.

[15] Compare Pant v. Nepal (where the Supreme Court of Nepal’s opinion is 24 pages) with Mohmmad Aslam Khaki v. SSP (where the Supreme Court of Pakistan’s opinion is only 5 pages).

[16] Mohammad Aslam Khaki v. SSP (Operations) Rawalpindi Constitution Petition No 43 of 2009, 1, 2-4.

[17] Id. at 2.

[18] Id.

[19] Declaration of Independence, supra note 58.