Gender and sexual minorities’ right to recognition: A paper victory? With a focus on Nepal, Bangladesh, and India

Abstract: Gender and sexual minority groups in Nepal, Bangladesh, and India have been systematically discriminated against in their States and ignored by the international community, for decades. While the three States have made progress concerning legal gender recognition, including recognizing a third gender on specific documents such as passports or identification cards, issues remain in ensuring equality in education, employment, and social participation. This is because the policy decisions, legislations, and judgements that Nepal, Bangladesh, and India have made to protect their respective queer communities, ignores the societal context as much as international law does. This thesis will use arguments brought forth by activists and academics within local queer movements to argue how the right to recognition of a legal identity is redundant in protecting human rights of unrepresented people. To analyse the legal avenues of protecting differing gender expressions and sexualities in South Asia it is important to assess the ways these identities manifest in their social, economic, and political context. I first expand on the complexities of different local identities within the three States. Then, I analyse the legal protections currently available and applicable in a national and international setting. Consequently, to understand how States are informed by international law, I explain the interplay of national and international understanding of queer minorities in the three States. This interplay is explained by analysing the disconnect as well as interdependence between national and international law. Then I explain the arguments and critiques brought forth by queer movements in the three States. This is done through an analysis of the implementation of current laws and the response of activists to them. Finally, I expand on different potential approaches to the protection of gender and sexual minorities available in the three States. I conclude that the reliance on gender binary while advocating for queer rights yields minimum results. The right to recognition is a paper victory, promoted by the three States for gaining respect of the international community.