Pursuing Constitutional Protections for LGBTI People

Read more: Article about how the new Constitution of Nepal incorporated protections for sexual and gender minorities.

In an historic victory for Nepal’s sexual and gender minorities, the country’s new Constitution explicitly protects them against discrimination. The inclusion of progressive protections was secured thanks in large part to a coordinated advocacy effort of civil society groups, such as the Blue Diamond Society.

After more than seven years of struggles and anticipation, the new Constitution was promulgated in September 2015. Article 18 of the Constitution, on the Right to Equality, specifically states that marginalized groups, which includes sexual and gender minorities, will not face discrimination by the state and judiciary.

Furthermore, the Constitution contains articles that specify that citizens of Nepal are permitted to decide what preferred gender identity appears on their citizenship document and that gender and sexual minority groups have the right to full participation in state mechanisms and public service “on the basis of the principle of inclusion.”

How did the advocacy efforts that helped make this a reality unfold? Over several months, the Blue Diamond Society organized a series of sensitization and advocacy efforts with key individuals involved in the Constitution drafting process. The Blue Diamond Society provided information on specific technical language and data on the human rights of sexual and gender minorities.

These efforts were reinforced by evidence from a 2014 study by the Blue Diamond Society, UNDP and The Williams Institute, which found that discrimination was widespread in Nepal and that existing anti-discrimination provisions were failing to sufficiently protect sexual and gender minorities.

Keeping the issues in the public eye was also central to the Blue Diamond Society advocacy efforts. For several years they organized large annual ‘Pride’ festivals to openly express the demand for the rights of sexual and gender minorities to be guaranteed in the Constitution.

The discussion of LGBTI issues and rights remains sensitive in Tunisia for many people. Yet a public debate has emerged regarding the rights and inclusion of LGBTI people, especially following the adoption of a new Constitution in 2014. In September 2015, during a media interview, the then Minister of Justice discussed the importance of individual freedoms and privacy. He mentioned the potential for legislative repeal of Article 230 of the Tunisian Penal Code, which pre-dates the 2014 Constitution, and criminalizes various sex acts, including sodomy and lesbianism.

While Article 230 has not yet been repealed, in other areas some progress has been achieved. For example, in 2015 a new non-governmental organization, the Shams Association, was created.  Their focus includes advocating for the decriminalization of homosexuality in Tunisia. When an order was issued in 2016 suspending the activities of the Shams Association, national and international civil society representatives protested, challenging the suspension as a serious threat to freedom of association in Tunisia. The Shams Association appealed the decision, won the case and was able to resume operations. The targeting of the Shams Association attracted media attention and mobilized a large contingent of Tunisian civil society to support the NGO and its ongoing efforts to repeal Article 230.

This video (in French) records the first meeting of the Shams Association:

In 1997 Fiji became the second country in the world (after South Africa) to prohibit discrimination on the grounds of sexual orientation in its Constitution. However, like for many other former British colonies, “carnal knowledge against the order of nature” and “acts of gross indecency” between males remained criminal offenses and, in 2005, two men were convicted for having consensual sex. These convictions were subsequently overturned by the high court on the basis that they violated the constitutional guarantee to personal privacy and the decision effectively decriminalized homosexuality in Fiji.

In the aftermath of a coup d’état in 2006, the Constitution was abrogated and the ‘interim’ government introduced a number of decrees to pursue a series of legal reforms. These included: 1) a 2009 Crime Decree that removed the discriminatory ‘sodomy laws’ and recognized male-on-male rape as a criminal offense; and 2) a Human Rights Commission decree which provided for claims of discrimination on the basis of gender, sexual orientation and disability (these same protections were included in the Employment Relation Act). In 2011, an ‘HIV/AIDS Decree’ provided further protection against discrimination and in 2012 a decree mandated the drafting of a new Constitution.

The Constitution drafting commission called for submissions from all segments of society and savvy networks of human rights and LGBTI activists, academics and lawyers worked together to use that political space to prepare submissions to the constitutional drafting committee. Civil society demands included the reinstatement of the anti-discrimination provision of the 1997 Constitution, as well as the addition of gender identity and expression as protected grounds.

These broad and collective efforts bore fruit in 2013 as the promulgated Constitution included an expansive anti-discrimination provision that specifically mentions, ”sexual orientation, gender identity and expression.” Following the promulgation of the Constitution, open discussion and debates on LGBTI issues became easier in Fiji. A transgender activist, Shivana Singh, referred to the new Constitution as a “victory for all Fijians,” and stressed the importance of transgender people obtaining the right to legal recognition of their gender identity.

In 2015, President Ratu Epeli Nailatikau declared: “Laws alone are not enough. I ask everyone in the Pacific to take action for equality. Together we can stop bullying, violence and other forms of discrimination against people simply because of who they are or whom they love.” 

In this video, Shivana Singh shares her story and talks about celebrating one's own life by embracing what makes you different: