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Dividing by Three: Nepal Recognizes a Third Gender

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Badri Pun slept in a gravel courtyard in rural Nepal for more than a week. After the first two days, he stopped eating. By night, he huddled under wool blankets, clutching a folder full of papers, some of which made his life legal -- his birth certificate, his motorcycle license, and his citizenship identification card -- and one which made a new life possible -- a 30-page, four-year-old court decision.

By day, he left the courtyard and entered the government building it encircled. He spent hours at the building shoving the documents in front of various government officials, insisting his ID papers were wrong. After 12 days of protesting, he won his case: Badri Pun was issued a new citizenship ID card, and it listed him as "third-gender."

The Court's decision was a stunning victory for the LGBTI (lesbian, gay, bisexual, transgender, and intersex) rights movement in Nepal, the formal movement just six years old. Its specific orders, however, have been slow to manifest. The Dec. 21, 2007 decision in Sunil B. Pant et al. v. the Government of Nepal ordered the government to scrap all discriminatory laws, form a committee to study same-sex marriage policy, and establish a third-gender category for gender-variant people. The piecemeal implementation of the third-gender category tells the story both of the relentless activism on the ground and of the politics of sexuality and gender rights in contemporary Nepal.

The third gender in Nepal is an identity-based category for people who do not identify themselves as either male or female. This may include people who want to perform or want to be presented as a gender that is different from the one that was assigned to them at birth, based on genitalia or other criteria. It can also include people who do not feel that the male or female gender roles that their culture dictates to them match their true social, sexual, or gender-role preference.

There are other countries that have third-gender policies, but none nearly as comprehensive as Nepal. India has used a third-gender category in several administrative capacities. In 2005 India's third-gender citizens could start registering for passports as "eunuch," denoted by an "E." In 2009 an"E" designation was added to voter registration documents. Shortly after Nepal announced it would include a third category on its census, India added one. And 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 third-gender citizens to register to vote as "eunuchs." Pakistan's Supreme Court also ordered the government to issue third-gender ID cards, but three years later, not a single one has been issued.

In 2001 Sunil Pant (who would go on to petition the court) registered Nepal's first LGBTI organization, the Blue Diamond Society (BDS). Most of the Blue Diamond Society's initial members were transgender sex workers -- considered male at birth, but performing a feminine gender role.

Transgender sex workers had for a long time been the target of widespread police violence, which the media eventually took notice of, especially when the BDS began to systematically document it. According to BDS archives, in 2003 major local media outlets ran 13 stories about abuse of LGBTI people in Nepal. A year later major international NGOs and media outlets would cover the arrests of 39 third-gender BDS members, pushing the movement into the spotlight.

In 2006, with the brutal 10-year communist revolution coming to an end in Nepal, Pant was invited to join a group of experts in Yogyakarta, Indonesia to discuss how international human rights standards relate to sexual orientation and gender identity. The result of these talks, the Yogyakarta Principles, inspired Pant to take legal action at home. "The conflict had just ended, and a new Nepal was promised," Pant says, "so we decided we would try to use the court to make sure we were part of that new nation building."

The court, at Pant's urging, adopted the Yogyakarta Principles' provision on gender identity: that the sole criterion for identifying as a gender is self-determination. The Court's decision solidified the category in law -- perhaps more strongly so than has ever been done before. Transgender rights movements elsewhere have found that having a non-male, non-female category could be helpful in securing rights.

After the court decision, the third gender began to appear in various administrative nodes of the government. The Nepal Election Commission almost immediately began allowing voters to register as third-gender, and many trekking permit applications added a third-gender category as well. The Ministry of Youth and Sports added third-gender to its National Youth Policy in 2010. And in perhaps the most sweeping implementation of the category, the 2011 federal census allowed citizens to self-identify as male, female, or third-gender.

Heralded as the world's first national census to include a gender category other than male or female, the survey took place in two phases. The first was a household registry, where government officials visited every home in the country; and the second was a full census, which visited every eighth home. The forms used by the Central Bureau of Statistics (CBS) in the Household Registry phase allowed Nepali citizens to identify as male, female, or third-gender.

In theory, having the category on the household registry would give an official count of the number of people in the country who identify as third-gender -- and place the third-gender community, at least partially, on the government's radar. But the enumeration proved problematic. Many third-gender citizens had to fight to be recorded properly. Reports of discrimination and fraud surfaced, accusing enumerators of using pencils to record gender instead of the CBS-mandated blue ink.

Despite the Nepali Supreme Court having ruled in late 2007 that citizens were entitled to select their gender identity based on "self-feeling," Pun remains one of only three people in Nepal officially neither male nor female. Although the LGBTI rights movement has made much progress, there were issues dealing with disclosure. Some people brave enough to publicly identify themselves as third-gender reported harassment from census enumerators when they asked to be listed as neither male nor female. Others were uncomfortable disclosing their identity when enumeration interviews took place with the entire family present.

Compounding these research complications, citizens were only allowed to register as male or female on the second census form, which asked over 50 questions on topics including religion, water source, and occupation. Two months later, a post-enumeration survey of approximately 10,000 homes -- used to check the data -- operated in a similar manner to the second census form. Regardless of whether people identified themselves as being third-gender, they were only able to identify as male or female in the household registry. Preliminary data published by the CBS revealed a zero count for third-gender citizens.

Shortly after the census, Pun took his third-gender ID to the Ministry of Foreign Affairs and applied for a passport. He was denied, the Ministry claimed, because they did not have any criteria for determining who was third-gender, and then again a second time because the Ministry said the new Machine Readable Passport (MRP) could not accommodate a third gender. Pun took the Ministry to court, since neither of the Ministry's claims hold water. According to the courts, the only criterion for third-gender is self-identification, and international aviation standards have no gender restrictions.

Like men and women, third-gender people also identify with a range of sexual orientations. For example, one 24-year-old third-gender explains, "I am biologically male, but I am not a man. I do not desire women sexually. Men in my culture desire women sexually. Therefore I am third-gender." He prefers male pronouns and says he dresses in male clothing about half the time (to avoid harassment) and female clothing the other half. He is married to a woman but lives secretly with his boyfriend.

When it comes to documentation, however, the logistics should not be too complicated. Passports provide a convenient and important case study. The International Civil Aviation Organization (ICAO) adopts standards and procedures for international travel documents. According to ICAO standards, four pieces of information need to be included on a passport: name, date of birth, nationality, and sex. ICAO regulations for MRPs say that a persons' sex may be listed as unspecified. On the main section of the readable passport, sex can be listed as "M," "F," or "X" (for unspecified). In the MRP zone at the bottom of the page, it is indicated with "M," "F," or "<."

Nepal's Ministry of Foreign Affairs is past due in responding to the Supreme Court. A year ago, Pun could have applied for a passport as a female, which is his biological sex listed on his birth certificate and original citizenship ID card. But today, as a third-gender citizen, he has no choice but to wait for the Nepali bureaucracy to figure out how to acknowledge him. His colleague and friend, Bhumika Shrestha, who also identifies as third-gender, recently traveled to New York City to speak at a United Nations conference on gender equality. During a layover in Doha, she was pulled aside for special questioning. She presents herself as an elegant young woman, yet her ID and passport show a photo of a 16-year-old boy named Kailash, and she is listed as "Male." The airline let her board the plane but not before forcing her to tell her life story.

Observers of Nepal's LGBTI rights movement sometimes claim that the category was created in line with contemporary Nepali politics. Listing the third-gender as a comprehensive LGBTI category, they claim, means the movement can swell its numbers and gain clout -- and eventually form a political party. Nepali-language media have referred intermittently to Pant as third-gender, despite his open identity as a gay man. Others place the identity category into gender-ambiguous cultural tropes such as hijras (who often categorize themselves as a third gender in other South Asian countries). With 103 ethnic groups officially registered in the country and less than half of its citizens identifying Nepali as their mother tongue, dozens of words linked with sexual and gender identities are associated with the third-gender category.

While the exact definition of third-gender might be disputed in Nepal, as a legal category it is clearly defined -- it is for those who wish to identify themselves as neither male nor female.

Badri Pun's story is just one illustration of the complexities of a society in transition. The constitution is in the final stages of drafting, and a new civil and criminal code will follow. The administrative measures that shape the quotidian transactions of citizenship are adjusting -- some better than others -- to accommodate a new category shaped both by international human rights standards and local culture. If the tenacity of the activism that began 11 years ago is any indication, the political life of this third category is only just beginning.

This piece was originally published by the World Policy Institute.