A the stereotypical that of “male and female”, which

A Proposal on the Brief Socio-Legal Analysis on
Concept of Human Rights regarding the Sexual and Gender Minorities


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As it is said,
there are two types of human in world- male and female. But these days that
concept has been a little out of proportion due to the openly acceptance of the
other gender apart from the stereotypical that of “male and female”, which is
widely known as the third gender.

So let us start
off with the simple definition of sex and gender:

Sex is biological difference,
chromosome, hormonal profile, internal and external sex organ.

Gender describes the characteristics that a
society or culture delineates as masculine or feminine.1



Sex is a biological fact whereas gender is
a social creation. You are born a male or a female but the roles that you take
up later in life define your gender. The society has already planned out, what
sort of roles or behavior one should follow according to their sex. So, a male
should be more masculine and take up more on physical works whereas the female
should be more feminine and a bit less outgoing comparatively. That therefore
is your gender role defined in accordance to your sex and by the society since
time immemorial. The gender roles has been set out for both male and female
accordingly and it starts within the family when a girl child is being treated
differently from the way the boy child is being treated, and if you question
this system all you get is one answer- its natural. A boy is a boy because he
was born a boy with a penis and a girl is a girl because she was born without a
penis. The structure of a human body, the sex, is the reason of the different
treatment among a boy and a girl in the world- as simple as that.

So even after all the clear cut description
of how one should behave and act according to their born sex- there are cases
where this sight have been finely changed. Sight such as when a born male tends
to fall more on the characteristics and roles of that of a female on their
later period of life regardless of what sex they are or vice versa. This sort
of action or sexuality is known as homosexuality, which is the exact opposite
of heterosexuality.

So the question arises is this behavior a
social taboo or a natural phenomenon?






When Harry was
born, his parents, Steve and Barb, were delighted to add another boy to their
family. But as their baby boy began to grow and develop, they noticed that
Harry began to express himself in a manner that they viewed as more feminine
than masculine. He gravitated toward dolls and other toys that our culture
typically associates with girls. But Harry’s preference was not simply about
liking pink more than blue or flowers more than fire trucks. He even began to
draw himself as a girl, complete with a dress and high-heeled shoes. In fact,
Harry did not just wish to be a girl; he believed he was a girl.2

This is an example of how it starts: a baby is born as
a boy but acts and behaves like a girl as he grows up, the question that comes
along is that, is this sort of behavior a mental disorder, a psychological
problem or is it the natural state of that boy named Harry?


In the above case, when Steve and Barb (parents of Harry) met with several psychologists, all
of whom told them that Harry was transgender.


Transgender means
one’s gender
identity or gender expression not
matching one’s assigned
sex. Transgender
is independent of sexual orientation;
transgender people may identify as heterosexual, homosexual, bisexual, asexual,
etc.; some may consider conventional sexual orientation labels inadequate or
inapplicable to them. People who were assigned a sex, usually at birth and
based on their genitals, but who feel that this is a false or incomplete
description of themselves. 3


the clear concept of how the world was supposed to be with only two gender,
male and female had come up to its flaws. There was/is more gender than the
just two that was supposed to be of ‘male and female’. The term LGBT is now
used to describe the humans that are not considered to fall among the
stereotypical male and female genders. LGBT is an umbrella term to define all
the genders that has come excluding male and female. It stands as Lesbian, Gay,
Bisexual and Transgender. There is now ‘I’ in this umbrella term that stands
for Intersexual and a ‘Q’ that stands for Queer or Questioning. The definitions
are as follows:

is a female homosexual; a female who experience a romantic love or sexual
attraction to another female. 4
Similarly, Gay is a male homosexual;
a male who has sexual and romantic attractions towards another male which is
the exact opposite of how the heterosexual feel towards the opposite sex. Hence
homosexuality is also known as the same-love. Bisexual is again a type of person who is attracted to both male
and female together, sexually and romantically.


As I have already discussed about transgender in my
paper above, I would want to add about Transsexuals. Transsexuals are people
who have gone through the Sex Reassigned Surgery (SRS). They are people
who transition from one sex to another. A person born as a male can become
recognizably female through the use of hormones and/or surgical procedures; and
a person born as a female can become recognizably male.5


These people call themselves or fall under the
category of sexual and gender minorities. Minorities everywhere have been a
subject to discrimination and have been treated in an utterly unfair manner. In
a patriarchal world like ours where even the recognized gender among the two
which is female, if has to suffer through discrimination, talk about the other
not expected gender getting equal rights, so even the female fall under
minorities, or did in that case. So in this paper, I will further talk about
the human rights violation of the third gender people and how the world is
starting to look up to them and to protect their rights, and also discuss about
the way society looks up at them.



Concept of Human
Rights: some provisions, international and national in regards with LGBT (third


Human rights if simply defined are the rights that are
to given to a human just because he/she is a human being. It’s a privilege they
enjoy for being born as a human in this world. Everyone has the right to it and
no one can take it away from them, it is also known as fundamental rights.


Around the globe, the LGBT communities are crying out
loud for the recognition of their rights and for security and protection of the
sexual minorities, which are being violated in every place around the world
even when there are laws that restrict them to do so.


The Bill of Universal Declaration of Human rights has
mentioned in its articles of how there should be no discrimination in terms of
human rights and fair treatment regardless of their sex, religion, race, color,
political opinion and so on. The articles in this universal declaration of
human rights, talks about how everyone should be treated fairly without any
sort of discrimination. It talks of ‘everyone’ without separating one human
from another in any aspect, so the rights provided by this bill of human rights
are applicable for all the human beings.


“Article 2:Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. Furthermore, no distinction shall be made on the basis of the
political, jurisdictional or international status of the country or territory
to which a person belongs, whether it be independent, trust, non-self-governing
or under any other limitation of sovereignty.” 6

So article 2 of the UDHR has clearly set out the
concept of how discrimination is restricted and how ‘everyone’ has every right
regardless of distinction of any kind.


There are a lot of other international and national
laws that says no to discrimination among humans itself. For example, it has
been about nearly fifteen years after the World Health Organization (WHO) has
removed homosexuality from its list of mental disorder. 7


Since its founding in 1945, the United Nations had
not discussed LGBT rights (regarding
equality regardless of sexual orientation or gender identity)
until December 2008, when a Dutch/French-initiated, European Union-backed
statement supporting LGBT rights was presented to the General Assembly. 8


The Yogyakarta Principles is one of the major steps
taken in the aspect of human rights regarding gender/sexual minorities.
The Yogyakarta Principles on the Application of International Human
Rights Law in relation to Sexual Orientation and Gender Identity is a
set of principles relating to sexual orientation and gender identity,
intended to apply international human rights law standards
to address the abuse of
the human rights of lesbian, gay, bisexual and transgender (LGBT)
people, and (briefly) intersex.9

The principles are named Yogyakarta, the city where
the conference was held.10

All the principles here are the simplest fundamental
rights of very human being, for example right to economic, cultural and social
rights, right to expression, opinion and association, right to human and
personal security, right to universal enjoyment of human rights,
non-discrimination and recognition before the law. Every person has the right
to enjoy these rights as said by hundred rules and laws, no human is different
neither should they be treated any differently.


General Comment No.18 of ICCPPR also exclusively talks
about non-discrimination among human beings. ILO has also come forward with the
issue of non-discrimination at work on the basis of sexual orientation and
gender identity. 11


As sexual minorities around the world are getting
recognition and attention, there are major steps being taken for them in almost
every part of the world. People are defending the rights of these minorities,
they are recognizing the trauma that discrimination brings to these human and
how no human is deserving of these mental traumas and troubles.


The most recent event that took the world by storm was
when the 50 states of United States of America (U.S.A) legalized ‘same-sex’
marriage. Same-sex marriage is the marriage that is performed between two
people of the same sex. USA legalizing same sex marriage has been a huge deal
for the world, so that the reluctant countries to take this step can take a
hint from it. There are a lot of countries in the world that has showed support
for the homosexuals or sexual minorities. For example, Canada has a group
called Equality for Gay and Lesbians Everywhere (EGALE) which protects the
rights of gays and lesbians. Canadian gay rights groups helped bring about
amendment in 1966 of the Canadian human right act to explicitly prohibit
discrimination based in sexual orientation. 12

Also Netherlands became the first ever country to
legalize same-sex marriage in 2001, giving same-sex couples the same rights
that heterosexuals couples have in areas such as inheritance, taxes, divorce,
and pension benefits. 13


Keeping the international aspects aside, our country
Nepal has its own set of laws and rules. Nepal is the first country in the
South East Asia and also the most open about the LGBT rights.  The Nepalese government,
following the monarchy that ended in 2007, legalized homosexuality in 2007 along with
the introduction of several new law sets. Based on the ruling of the Supreme Court of Nepal in
late 2008, the government is looking into legalizing same-sex marriage.14


After the fall of monarchy, in 2007 the Supreme Court
ruled that the new democratic government should create laws that protect the
rights of the LGBT people. Despite their participation in the demonstrations
that brought down the monarchy, gay-rights groups found themselves ignored by
the political establishment, and turned to the judiciary as a more effective
way to secure their rights.15


After this decision, the supreme court of Nepal on
2008 has given the direction to the government to include laws that are more
gender friendly and the ones that protect the rights of the gender and sexual
minorities and also to look at legalizing same-sex marriage.

Nepal though same-sex marriage is not legalized it is not even criminalized, it
has now been recognized in the legal field and has drawn a lot of attention of
young generation and human rights activists.


Analysis and


After all the study of the provisions, all I could
analyze was that no matter how far the world has come, it still has a very far
way to go on the case of practice of human rights. Still in the world people
are still fighting for their basic rights of being human, they are still
fighting to live free and happy, without public interference and judgment.
Without them being labeled or thrown shade at, or by them being called all the
possible ridiculous names.

There are positive cases such as the National Coalition for Gay and Lesbian
Equality and Others V. Minister of Justice and others.


In this case of
South Africa, in response to sexual orientation and discrimination quoted that:
“Sexual orientation is defined by reference to erotic attraction; in the case
of heterosexuals, to members of the opposite sex; in the case of gays and
lesbians, to members of same-sex. Potentially a homosexual or gay or lesbian
person can therefore be anyone who is erotically attracted to member of his or
her own sex.”16

Cases like these can be set forth to become examples
of how neutral and fair the human rights and laws of nation needs to be towards
their citizens without keeping in mind the differences that they are regarded
with. All the citizens should be  same
and given the same rights but then there are such countries till in today’s
world that still considers homosexuality as a punishable crime.

Even if we go back to history in the classical period
of ancient Greece, during the fifth century B.C.E, the records suggests that
people thought of sexuality as neutral or good, as long as it was
















10 Ibid9


12 Gender, SajalBhattarai

13 Ibid12


15 Ibid14