“A person who obtains the citizenship of Nepal by descent per this Constitution may obtain a certificate of citizenship of Nepal with gender identity by the name of their mother or father,” states the citizenship with identity of descent and gender under section 12 of Nepal’s Constitution.
However, Rukshana Kapali, a transgender activist, points out that the absence of conforming regulations of this provision in other laws makes implementation unlikely.
While the Nepal Citizenship (First Amendment) Act, 2023/24 under Sub-section 3 of Section 8A mentions that gender identity should be explicitly acknowledged on the citizenship certificate, this foundation remains vague. Additionally, the government has not outlined anything in the Niyamawali (regulations) or Karyabidhi (procedures), making implementation challenging.
The Ministry of Home Affairs, responsible for overseeing this provision, argues that the law only grants citizenship based on gender identity, which does not cater to changing the gender marker or name in existing citizenship documents. This conflicting interpretation has led to significant challenges for transgender and gender-diverse individuals.
In 2077 BS (2020), Queer Youth Group (QYG) filed a Public Interest Litigation (PIL), arguing that the provision for acquiring citizenship based on gender identity also encompasses the right to amend one’s gender marker and name. Their case emphasised that legal recognition of gender identity should align with constitutional guarantees.
“While this sounds highly technical, the provision for citizenship on the grounds of one’s gender identity should also ensure the inclusion of changing one’s name and gender marker.” Rukshana highlights.
During the preparation for this case, QYG worked meticulously on every document that might intersect with citizenship, put together all necessary paperwork, and then submitted it to the Supreme Court.
The whole process also involved all 77 Chief District Officers (CDOs), and due to the numerous parties in opposition from various sectors, including the voter council (for voter ID changes) and the Transport Management Office (for driving licenses), it took the court three months to process it.
“If other lawsuits get their respective hearings, it will lead to a final verdict in the issue pertaining to citizenship as well. Since the Constitution explicitly ensures fundamental rights such as rights related to citizenship, the court is expected to rule in favour of protecting these rights.” Rukshana indicates.
Like how the High Court Pokhara came through by setting a new jurisprudence affirming that current legal provisions allow individuals to amend their name and gender marker on citizenship certificates. This ruling was issued in verdicts for three cases. Following this, the High Courts of Janakpur and Biratnagar delivered similar decisions in two and four cases, respectively.
However, a verdict on QYG’s PIL is still pending since the Supreme Court must handle lawsuits from all 77 districts of the country. A case filed in 2077 BS is still ongoing, and with the inflow of new lawsuits, the decision will take even more time.
Even Rukshana’s own case took three years to reach a verdict. Her case got the judgement in Kartik 2080 BS (November 2023) and received the full text of the judgement in Shrawan 2081 BS (July 2024).
Today, my citizenship certificate has been amended according to the verdict of the Supreme Court. Rukshana Kapali’s facebook post from December 17, 2024, reads.
“I still believe my case got resolved relatively quickly because of my disability card, as lawsuits involving persons with disabilities are prioritised,” Rukshana reveals.
Photo: Birat Bijay Ojha
Her battle to self-identification was not an easy feat. This is why QYG remains perseverent, taking it upon itself to assist Nepali PoMSOGIESC (People of Marginalised Sexual Orientation, Gender Identity, and Expression, and Sex Characteristics) individuals. Those seeking to change their citizenship must gather birth certificates, school certificates, driving licenses, passports, etc., and submit photocopies to QYG. Within a day or two, QYG prepares an appeal for the individual, listing all relevant government bodies in a collective application. The appeal addresses the respective ward office, district administration office and other relevant government bodies, explaining the situation.
“QYG customises its application format for each applicant. Once the appeal is prepared, we send it to each relevant government body for registration.” Rukshana explains.
However, government bodies often refuse to register the appeals. In such cases, as per QYG’s guidance, the applicant sends their appeal via the postal office. Once sent, the applicant requests updates on the appeal decisions using their right to information.
Even then, obtaining information is not straightforward. It often involves another lengthy process, including filing a review petition with the National Information Commission, before finally accessing details about the appeal’s decision.
Some government bodies, like the Transport Management Office (for driving licenses), are on board with updating documents and people can approach them once citizenship is amended. The provision for voter ID changes follows a similar principle
“They have agreed to comply with updating the driving license accordingly. When such bodies comply, QYG does not file cases against them.” Rukshana clarifies.
There was a time when the National Examination Board refused to update Rukshana’s education certificates. In such cases, QYG files lawsuits against non-compliant government bodies.
Speaking of which, the Ministry of Home Affairs has taken a discriminatory stance, refusing to implement court verdicts favouring transgender individuals. They have sent out a letter, which clearly states that such implementation will “lead to social and biological adverse consequences.”
There was someone who had received a verdict even before Rukshana but not seen implementation because of the Ministry’s refusal. So, they opted for contempt of court. Only then the Ministry finally came through with a decision and provided citizenship.
“The Home Ministry is transphobic,” Rukshana points out the discriminatory systemic rhetoric, and adds, “the refusal to implement is outright oppression to the extreme.”
Photo: Birat Bijay Ojha
This ongoing resistance from powerful government bodies highlights the urgent need for stronger judicial and legislative action to uphold the rights of transgender and gender-diverse individuals in Nepal.
To address this, QYG now includes lawsuits against both the Ministry and its leadership, holding officials personally accountable for obstructing justice. Typically, lawsuits are filed against a government body (e.g., the Home Ministry or District Administration Office). However, QYG now includes both the body and its head as defendants.
Also, for contempt of court, there is a lawsuit against Pradarshani Kumari, the branch head of the National ID and Citizenship Department, including others.
“Once the Supreme Court delivers a verdict, they will have no choice but to comply.” Rukshana says. Amidst the seas of lawsuits, a decisive Supreme Court ruling applicable to all individuals could resolve the issue. “If the Supreme Court would rule for everyone, it would come to an end,” she adds.
The issue of citizenship change lingers as a hurdle. Once becoming accessible, it will pave the way for updates to other documents.
“If not a blanket law, the Supreme Court should issue guidelines to provide temporary relief until Parliament enacts comprehensive laws.” Rukshana advocates for interim guidelines.
This article is based on a conversation with Rukshana Kapali, housing rights defender and transgender activist from Nepal.
