gender discrimination essay in nepali language

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• Published: 01 November 2022

A qualitative study on gender inequality and gender-based violence in Nepal

• Pranab Dahal 1 ,
• Sunil Kumar Joshi 2 &
• Katarina Swahnberg 1  

BMC Public Health volume  22 , Article number:  2005 ( 2022 ) Cite this article

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Gender inequality and violence are not mutually exclusive phenomena but complex loops affecting each other. Women in Nepal face several inequalities and violence. The causes are diverse, but most of these results are due to socially assigned lower positioning of women. The hierarchies based on power make women face subordination and violence in Nepal. The study aims to explore participants' understanding and experience to identify the status of inequality for women and how violence emerges as one of its consequences. Furthermore, it explores the causes of sex trafficking as an example of an outcome of inequality and violence.

The study formulated separate male and female groups using a purposive sampling method. The study used a multistage focus group discussion, where the same groups met at different intervals. Six focus group discussions, three times each with male and female groups, were conducted in a year. Thirty-six individuals, including sixteen males and twenty females, were involved in the discussions. The study used constructivist grounded theory for the data analysis.

The study participants identify that a power play between men and women reinforce inequality and increases the likelihood of violence for women. The findings suggest that the subjugation of women occurs due to practices based on gender differences, constricted life opportunities, and internalization of constructed differences among women. The study identifies that interpersonal and socio-cultural violence can result due to established differences between men and women. Sex trafficking, as an example of the outcome of inequality and violence, occurs due to the disadvantageous position of women compounded by poverty and illiteracy. The study has developed a concept of power-play which is identified as a cause and consequence of women's subordination and violence. This power play is found operative at various levels with social approval for men to use violence and maintain/produce inequality.

The theoretical concept of power play shows that there are inequitable power relations between men and women. The male-centric socio-cultural norms and practices have endowed men with privilege, power, and an opportunity to exploit women. This lowers the status of women and the power-play help to produce and sustain inequality. The power-play exposes women to violence and manifests itself as one of the worst expressions used by men.

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Violence against women is identified as an attempt by men to maintain power and control over women [ 1 ] and is manifested as a form of structural inequality. This structural inequality is apparent with greater agency among men [ 2 ]. The differences between sexes are exhibited in the attainment of education and professional jobs, ownership of assets, the feminization of poverty, etc., and these differences increase the risk of violence towards women [ 3 ]. The global estimate identifies that thirty percent of women experience physical and/or sexual violence during their lifetime, illustrating the enormity of this problem [ 4 ]. From a feminist perspective, lending ideas of patriarchy [ 5 ] and gender performativity [ 6 ], the understanding of gender roles prescribed by male-dominated social structures and processes helps further explore the violence and abuse faced by women [ 7 ]. According to Heise [ 8 ], men who adhere to traditional, rigid, and misogynistic views on gender norms, attitudes, and behaviors are more likely to use violence towards women. The individual and collective attitudes of men toward different established gender norms, and their reproduction explain men’s use of violence toward women [ 9 ]. It is known that gender norms influence violence, but at the same time violence also directs and dictates gender performance with fear, sanction, and corrective measures for enacting respective prescribed gender functions [ 10 ].

It is difficult for women subjected to violence to enjoy legitimate rights, as most of the infringement of their rights and violence takes place inside a private sphere of the home [ 11 , 12 ]. Violence against women is the major cause of death and disability for women [ 13 ] and globally a major public health concern [ 14 ]. Establishing gender equality is fundamental for fostering justice and attaining sustainable development [ 15 ]; moreover, violence against women has to be acknowledged as a fundamental abuse of human rights [ 16 ]. A report on global violence has identified that violence against women exists at all levels of the family, community, and state. The report recommended the development of frameworks for respecting, protecting, and fulfilling women’s rights [ 17 ]. Fifteen years later, a review of the same identifies that violence continues with impunity, reaffirming violence as a major obstacle to the attainment of justice [ 18 ].

The inclusion of the gender lens to violence against women has provided more contextual evidence to explore these processes of violence. This requires the identification of unequal power relationships and an inquiry into the differences-producing various gender stereotypes [ 19 ]. This analysis of violence requires an understanding of behaviors that promote women’s subordination and factors that favor men to sustain these malpractices [ 8 ]. A closer look at the male-centric structural arrangements embedded in the social, political, and economic organization of life reveals that these structures provide lesser access and lower accountability toward women, promote systemic subordination, and create hierarchies, resulting in the increase of violence against women [ 20 ]. This unequal gender power relationship reinforced and manifested by social approval of men’s authority over women is found operative at multiple levels and helps to produce diversities of inequalities and violence [ 21 , 22 ].

The inequalities faced by women in Nepal majorly stem from socio-cultural, economic, and religious factors and influencers that define traditional roles and responsibilities between men and women [ 23 ]. The inequalities are more evident and pronounced in settings exhibiting prominent patriarchal norms restricting advantages and opportunities for the majority of women [ 24 ]. Women in Nepal are restricted inside their homes, have lesser access to life opportunities, and have limited or no involvement in decision-making on important issues directly affecting their lives [ 25 , 26 ]. Figures indicative of women’s inequalities in Nepal suggest that one-third of women have no education, fifty-two percent of women are involved in non-paid jobs, and women are less likely than men to own a home or land [ 27 ]. The men in Nepalese society are positioned higher and are expected to be the breadwinner and protectors of their families. Most of these men intend to earn respect and obedience from women and are socially expected to discipline women to achieve it [ 28 ]. Many societies across the world including Nepal, recognizes violence as a private affair requiring discussion only within a family. This has led to a serious underreporting of violence committed toward women in Nepal [ 29 ]. The national gender data in Nepal is scarce, the available Nepal Demographic Health Survey 2016 identifies that since the age of fifteen, twenty-two percent of women and seven percent of women experience physical and sexual violence, respectively in the past twelve months [ 27 ].

The contributing factors for violence against women in Nepal include the lower social status of women, illiteracy, economic dependency, patriarchal society, sex trafficking, alcohol-related abuse, dowry-related violence, infidelity, extramarital affairs of husband, unemployment, and denial of sex with husband [ 30 , 31 , 32 ]. Nepalese women have been repressing violence with silence due to the fear of breaking relationships, receiving less love and affection from family, fear of social norms by going against men, lack of faith in the justice system, and the threat of increased violence [ 33 ]. Women and girls in Nepal are sex trafficked to various countries. Sex trafficking in Nepal is prevalent due to persistent gender inequality, violence, stigma, and discriminatory socio-cultural structures; however, the actual extent of sex trafficking is still undetermined [ 17 , 34 , 35 ].

The recent trends in Nepal with the increasing number of out-migration of men for employment have provided women with temporary autonomy, and a shift in the gender roles. Earlier research has identified that migration of male spouses has provided a resistance to the power dynamics for women on the other hand it has limited their mobility, required them to share decision-making with household structures, face continued social vigilance on the money received from remittance, and get central attention with their personal sexual lives [ 36 , 37 ].

Morang district lies in the eastern region of Nepal. A district profile report based on a census survey [ 38 ] identifies that the place is inhabited by a close to a million population, out of which ethnic groups ( close to forty percent) live in the district with a majority (seventy-eight percent) of its population living in the rural areas. Tharu an ethnic group is one of the dominant population in the study area and all study participants for this study were from same Tharu population. A close to thirty-six percent of women in the district are illiterate and the average age of marriage is eighteen years. The report identifies that only twenty-three percent of women engage in economic activities apart from agricultural work and less than fourteen percent of women head the household. Almost eighty percent of the population in the district practice Hinduism.

This study is a part of a large intervention project and it was focused to establish a qualitative baseline of the gender status in the study area. This study aimed to explore participants’ experiences and understanding of gender inequality, violence against women, and information on sex trafficking in the Morang district of eastern Nepal. The selection of sex trafficking topic was motivated to assess the respondents’ general understanding of one of the consequences of inequality and violence faced by women. The study focused to explore factors that help to produce and sustain the practice of gender inequality and violence against women in the local community.

Participants

This study was part of a larger control-comparison project that used Forum Theatre interventions to promote gender equality, reduce violence against women, and increase awareness of sex trafficking [ 39 , 40 ]. The participants for the focus group discussion included the intervention population from one of the randomly sampled intervention sites. A multistage focus group discussion [ 41 ] was used involving the same participants discussing various emerging topics at different periods. The participants were recruited voluntarily during an earlier quantitative data collection for the project. The study used a purposive sampling method for the selection of participants. The local field staff at the study site facilitated the recruitment of the participants. The study formulated separate male and female groups. A total of six focus groups, three each with male and female groups were conducted over twelve months. Two inclusion criteria were set for participation. First, the participants had to be part of the population of the larger study. Secondly, they had to witness and/or participate in the Forum Theatre interventions conducted in between the study. The set inclusion criteria served a dual purpose of understanding the causes of inequality and violence and further helped to develop and determine the efficacy of participatory Forum Theater intervention for awareness-raising among the study intervention groups [ 39 ].

A total of thirty-six participants consisting of sixteen males and twenty females joined the discussions. The first discussion consisted of eight participants each from groups while the second and the third discussion missed two female and four male participants respectively. The majority of the participants were 20–29 years old. Tharu, an ethnic community of Nepal, is a dominant population in the study area, and all the participants belonged to the same Tharu community. Only one female participant was unmarried, and a single married male participated in the discussions. All participants were literate, with four males completing a bachelor's level of education. Seven female participants had education below the high school level. The nuclear family with parents and their children was the major family type identified in both male and female groups. Table 1 provides the detail of the participants.

The focus group discussions were conducted in January 2017, April–May 2017, and January 2018. The discussions were conducted in a place recommended by the participants. An isolated place in an open setting at the premise of a local temple was used for conducting all discussions. The participants were briefed about the objectives of the discussion and written consent was obtained for their participation. Verbal consent was taken for the audio recording of the discussions. Each participant was assigned a unique numerical code before the discussions to ensure anonymity during recording, note-taking, and analysis. The discussions averaged ninety minutes during each session. The discussions were conducted with the same participants and no new participants were added during the follow-ups. A single male and female participant were missing in the second follow up and two male participants missed the final follow-up. The reason for missing participants was due to their unavailability as they were out of the village due to personal reasons.

The discussions were conducted in the Nepali language. The first author moderated all six discussions, a support field staff member took the notes, and the last author observed the discussions. The audio recordings were translated into English, and the transcriptions were checked with the recordings to verify accuracy. The field and the discussion notes were used during various stages of data analysis. The notes provided information on the discussion setting, as well as the verbal and nonverbal expressions of the participants. The notes helped to assess the impressions, emphasis, and feelings of the participants during the discussions.

The discussions used pre-formulated discussion guides with open-ended questions on inequalities, gender practices, violence, and sex trafficking. The guiding questions were based on the theoretical premise of discrimination, patriarchy, oppression, hegemony, and participation of women. Three separate discussion guides were developed for each of discussions. The guides were developed by the first and last authors. Probing was done on several occasions during the discussion to gain more clarity on the issue. Cross-checking among the participants and between the groups was done to triangulate received information. Any topic deemed appropriate for discussions and/or any unclear issues identified during the initial data analysis came up subsequently in the discussion guide during the follow-ups.

Data analysis

This study used the constructivist grounded theory method. This method adheres to a constructivist philosophical approach wherein both researchers and participants mutually co-construct the meaning of a phenomenon [ 42 ]. This interaction is important since it helps to impart the meaning of shared experiences [ 42 ]. The constructivist grounded theory made it possible to (re) discover gender issues, important for both the researcher and the study participants. This method allowed the study to progress with responsiveness to emerging issues with an in-depth exploration of the identified issues. This clarity was achieved through repeated interactive discussions, analysis of explanations, and sharing of emergent findings with the study participants.

The audio recordings were translated and transcribed into English. Six transcripts from discussions were initially analyzed using a line-by-line coding process. The coding process helped with the fragmentation of data through interactive comparisons. Fifty-two initial codes such as gender differences, restricting women, alcohol-related violence, underreporting of sexual violence, coping, etc. were identified. The later stage of focused coding helped to achieve categorized data, providing logical sense to the developed initial codes. Three focused codes, namely, the subjugation of women, violence, and chasing dreams were formulated during the analysis. The abductive reasoning from the codes, memos, and discussion notes helped to develop the theoretical concept. The development of conceptual abstraction involved an iterative comparison of the data, codes, categories, memos, and discussion notes.

The constant communication between the authors during the stages of data analysis such as the formulation of codes, explanations of concepts, and categories helped to refine the analysis. The shared experiences of the participants and the description of the data collection and analysis included substantial details, enabling comparisons for future research and application to other similar contexts. The reliability of the study is warranted by the theoretical saturation [ 42 ] achieved by this study. This is supported by prolonged engagement with the study participants with communication on the emerging findings, and triangulation.

Reflexivity has a greater significance for the constructivist approach. The first and the second author of Nepalese origin were aware of the socio-cultural norms, stereotypes, values, and stigmas associated with gender in the local context. This helped the study to ascertain the depth of inquiry within the acceptable local normative limits. The non-Nepalese author, familiar with the study participants and Nepalese contexts, witnessed the discussions as an observer. The prior knowledge of the authors helped to critically assess different schemas, perspectives, and explanations shared by the participants. The universality of gender inequality and violence against women and its re-examination in the local context helped the authors to build upon existing knowledge by providing contextual explanations. The diversities among the authors and research participants established a basis for co-creating the perceived and observed realities.

The section below describes the participants’ perceptions and understanding of inequality and violence. The section contains subheadings that were derived as themes in the data analysis. The first theme subjugation of women; discusses how norms, beliefs, and practices produce inferior status and positions for women. The second theme domestic and gender violence; provides a narrative of interpersonal and socio-cultural violence present in the study area. The theme of chasing dreams; discusses the process of sex trafficking as an outcome of violence. The theoretically abstracted concept of power-play identifies the cause for the generation of power imbalance producing inequality and the use of violence by men.

Subjugation of women

The subjugation of women reflected practices and beliefs imparting positional differences for women and their social situation compared to men. The participants shared a common understanding that belief systems adhering to male supremacy have positioned women in a lower status. They provided examples of social practices of male supremacy such as males being considered as the carrier of a family name, legacy, and heritage, while women were referred to as someone else’s property. The socialization of the idea that girls will be married off to a husband and relocate themselves to their homes was identified as the major reason for instilling and perpetuating early gender differences. The participants mentioned that discriminatory practices and seclusion have situated women at the bottom rung of the gender hierarchy, establishing them as socially incompetent individuals or groups. Moreover, they inferred that selective preferences provided preparatory grounds for inequalities, and they remain attached to women throughout their lives. The participants provided examples of unequal access to education and life opportunities as a practice of selective preferences occurring in the community. They mentioned that socialization with these discriminatory beliefs and their practice helped to develop specialized gender roles from an early age. The participants provided an example of how gender intersected with mobility and resource generation in the community, it was clear from the discussions that this has restricted women inside homes but provided freedom and opportunities for men. A female participant expressed,

A woman from a poor family is more than willing to work and support her family. But she is not allowed by the men in the family to work outside of the home.

The participants informed that differences between the sexes were visible for women from a young age. Sharing practical examples from the community, the participants from both groups stated that girls received education mostly in low-cost government and community schools, while boys were enrolled in expensive private schools. They raised concerns that this selective investment for education, cited as the ‘building block of life’ by the participants, installed lesser capacity, and negotiating abilities in girls. A female participant stated,

There are differences in educational opportunities for boys and girls in our community. Family provides more support for a boy’s education by enrolling him in private schools, while a girl mostly gets her education in a community school together with engagement in household work.

The discussions revealed that women required several male anchors for their survival during their various stages of life. The participants provided examples of the shift of anchors for women which traversed from a father to a husband during marriage and later to the male child during her old age. They believed that this tradition of transferring women’s identity established men as a higher social category and stripped women of their individuality and identity. A male participant added,

Women have to remain dependent on men throughout their lives, first with their fathers and later with their husbands. They remain completely dependent as they are not economically active. This makes men believe that they have higher authority.

The female participants provided an example of marriage to illustrate how someone else’s decision-making had been affecting women’s lives. A participant explained that women were held responsible for household activities after marriage and any support for career progression or education was restricted despite her desire for its continuation. It was inferred that women had to drop their hopes and aspirations as the husband and his family made decisions for them. The female participants agreed that this continuous exposure to the ideas of male supremacy makes them start to believe and internalize the idea that women have lesser cognitive abilities and intelligence compared to men. A female participant stated,

Men and women certainly have different mental abilities. Men think and act differently often in a smart way compared to women.

The participants from both groups expressed that youth in the community were developing flexible attitudes and beliefs towards gender roles and responsibilities. They agreed that both young men and women were observed altering their roles and responsibilities shifting from traditional gender ideologies. The participants expressed that instilling these fluidity and flexible approaches in the older generation was impossible as they strictly followed traditional beliefs and practices. Few of the female participants admitted that at times young women also fail to accommodate the situation and reap benefits from available opportunities. The discussions revealed that a few of the women in the community received opportunities for independence and economic empowerment. These women had received entrepreneurial training and various skill development activities for sustaining livelihoods with practical skill-based training in tailoring, beautician, and doll-making. The female participants expressed that opportunities for independence and growth slipped away from them due to a lack of family support, financial constraints, and self-passivity. They explained that starting a business required approval from a family which was difficult to obtain. Moreover, if women made a self-decision to start up on their own, they lacked the initial capital and had to rely on men for obtaining resources. The participants further explained that the denial of men to support women were majorly due to the fear that norms of staying indoors for women will be breached and economic independence may enable women to have a similar financial footing as men. The participants stated that self-passivity in women emerged due to their engagement in household multiple roles, dependency upon males, and lack of decision-making power and abilities. A female participant summed it up by stating,

Some of us women in the community have received entrepreneurial skills training, but we have not been able to use our skills for our growth and development. Once the training finishes, we get back to our household chores and taking care of the children.

The female participants admitted that acceptance of belief systems requiring women to be docile, unseen, and unheard were the reasons for this self-passivity. The female participants resonated that the external controlling and unfavorable environment influenced by practices of discriminatory norms and beliefs developed self-passivity for women. A female participant expressed the cause and consequence of self-passivity as,

Women have inhibitions to speaking their minds; something stops us from making our position clear, making us lose all the time.

The discussions identified that gender norms were deeply engraved in various social interactions and daily life, and any deviance received strict criticism. The participants shared common examples of sanctions for women based on rigid norms like restrictive movements for women, social gossiping when women communicated with outsider men, prohibition for opinion giving in public, and lesser involvement during key decision-making at home. The participants shared that norms dictating gender roles were in place for both men and women with social sanctions and approval for their performance. A male discussion participant who occasionally got involved with cooking which was a so-called “women’s job” faced outright disapproval from his female relatives and neighbors. The male participant stated,

If I cook or get engaged in any household jobs, it is mostly females from the home and neighborhood who make fun of me and remind me that I am a man and that I should not be doing a woman’s job.

The foreign migration of youth looking for job opportunities has affected the Tharu community. It was known that a large number of men were absent from the community. The participants stated that women in such households with absent men had gained authority and control over resources, moreover, these women have been taking some of the men’s roles. The participants disclosed that these women had greater access and control over resources and were involved in the key decision-making positioning them in a relatively higher position compared to other women. It was known that this higher position for women came with a price, they were under higher social vigilance and at higher risk of abuse and violence due to the absence of ‘protective men’. It was known that women's foreign employment was associated with myths and sexist remarks. The participants shared that women had to face strict social criticisms and that their plans for livelihood and independence were related to an issue of sexual immorality and chastity. The participants from both groups strictly opposed the norms that associated women with sexual immorality but lamented that it continues. A male participant provided an insight into the social remarks received by women if she dares to go for foreign employment,

If a woman wants to go for a foreign job, she is considered to be of loose character. The idea that she is corrupt and will get involved in bad work will be her first impression of anyone.

Although the participant did not explicitly describe what bad work referred to as but it was inferred that he was relating it to sex work.

Domestic and gender violence

The participants identified violence as control, coercion, and use of force against someone will occurring due to unequal status. They primarily identified men as the perpetrators and women as the victims of violence. They explained that two types of violence were observed in the community. The first type occurred in an interpersonal relationship identified as physical, emotional, and sexual violence. The second type, as explained by the participants had its roots in socio-cultural belief systems. They provided examples of dowry exchange and witchcraft accusations for the latter type. The participants identified women as primary victims and listed both men and women as the perpetrators of both types of violence. They reported that physical violence against women by men under the influence of alcohol was the most commonly occurring violence in the community. The participants from both groups confirmed that wife-beating, verbal abuse, and quarrel frequently occurred in the community. It was known from discussions that alcohol consumption among men was widespread, and its cultural acceptance was also increasing episodes of violence. One of the female participants clarified further,

The most common violence occurring in our society is wife-beating by a husband under the influence of alcohol. We see it every day.

The participants reported the occurrence of sexual violence in the community but also pointed out that people refrained from discussing it considering it a taboo and private affair. The participants had hesitation to discuss freely on sexual violence. During the discussions, participants from both groups informed only of rape and attempted rape of women by men as sexual violence present in the community. Despite repeated probing, on several occasions, none of the participants from either group brought up issues and discussions about any other forms of sexual violence. Participants from both groups confirmed that stories about incidents of rape or attempted rape emerged only after cases were registered with the local police. The participants presumed that incidents of rape and attempted rape were not known to the wider community. A female participant stated,

Sexual violence does occur in our community, but people mostly do not report or disclose it, but they tend to keep it amongst themselves and their families.

The participants explained the identity of the rape perpetrator and victim. They identified the perpetrator as a rich, influential, and relatively powerful man from the community. The victim was portrayed as a poor and isolated woman which lesser social ties. It was known from the discussions that most of the rape cases in the community were settled with financial negotiations and monetary compensations for the victim rather than finding legal remedies. It can be inferred that the victimization of women intersects with gender, wealth, social stature, and affluence. The participants feared that this practice of settlement of rape with money could make rape a commodity available for the powerful, rich, and affluent men to exploit and victimize women. A male participant clarifies,

Recently, a man in his sixties raped a young girl near our village. The victim's family was ready to settle with monetary compensation offered by the rapist, but the involvement of the community stopped it and the rapist was handed over to the police.

The participants shared available coping mechanisms against violence practiced in the community by women. It was learned that the victim of household violence mostly used community consultation and police reporting to evade further violence. They divulged that community consultation and police reporting resulted in decisions in favor of victim women, directing abusive husbands to show decency and stop committing violence. The fear of legal repercussions such as spending time in police custody and getting charged under domestic violence cases was understood as the reasons for husbands to stop abuse and violence. The discussions revealed that women who file a formal complaint about their husband’s violent behavior could face an increased risk of violence. The participants disclosed that sharing such incidents publicly brought shame to some of the men and increased their anger, and often backlashed with increased violence. The participants in both groups stated that not all women in the community reported violence. They identified that women tend to be quiet despite facing continuous violence due to the fear of encountering more violence and to keeping their families together. A female participant clarifies,

Lodging public complaints against the abusive husband can sometimes escalate the violence. The husband’s anger for being humiliated in public must be faced by the woman inside the closed doors of the house with more violence and the men’s threat of abandoning the relationship.

The participants stated that socio-cultural violence against women in dowry-related cases was widespread and increasing. The dowry exchange was explained as a traditional practice with the family of the bride paying cash and kind to the groom's family. The participants clarified that the practice of dowry in the earlier days must have been an emergency fund for the newly wedded bride in a newer setting. According to the participants, the system of dowry has now developed and evolved as a practice of forced involuntary transfer of goods and cash demanded by the groom’s family. The discussions disclosed that the demands for dowry were increasing with time and failing to provide as promised immediately resulted in violence for the newly wedded bride. The participants described that dowry-related violence starts with taunts and progresses to withholding of food, verbal abuse, and finally, physical violence. They added that perpetrators of such violence were both men and women from the groom’s family. They stated that due to poverty not all bride families in the community were able to supply all demanded dowry which has exposed a large number of women to face dowry-related abuse and violence. The discussions also informed of a newer trend among girls by demanding goods during their wedding. It was shared that this new emerging trend had increased a two-fold financial burden on the bride’s family with heavy marriage debts. The male participants when questioned about the dowry demands cunningly shifted the responsibilities towards family and stated that it was not the groom but their families who were making such dowry demands. The discussions verified that dowry practice was so engraved in the community that it was impossible to even imagine a marriage without any dowry. A male participant reflected,

If I marry without any dowry, my family, neighbors, and all whom I know would consider that I am insane.

The participants also discussed and identified harmful traditional practices present in the community. The participants informed a common practice of accusing women of as witches existed in the community. It was mentioned that women faced witchcraft allegations in different situations. They provided examples of witchcraft allegations in common situations such as when someone’s cow stops producing milk when a child has a sore eye, when someone is bedridden due to sickness for days, or when a woman undergoes a miscarriage, etc. The participants stated that women accused of witch were always elderly/single women living in seclusion, poverty, and with fewer social ties. They also shared that the witch doctors, who ascertain whether a woman is a witch or not, were surprisingly mostly always men and hold higher status, respect, and social recognition. The consequences of being labeled as a witch, as explained by the participants, haunted victim women with torture, name-calling, social boycott, and extremes of physical violence. The participants informed that inhumane practices such as forceful feeding of human excreta prevailed during the witch cleansing sessions. A female participant explaining the witchcraft situation stated,

Witchcraft accusation is very real in our community; I know someone who has tortured his mother, citing reasons for his wife being childless. The old woman was called names, beaten, and later thrown out of the home.

The participants felt that men’s use of violence and its legitimization primarily existed due to gender hierarchy and internalization of the belief that violence was the best method to resolve any conflict. They inferred that men’s use of violence was further reinforced by women's acceptance and belief that violence had occurred due to their faults and carelessness. The female participants shared examples of common household situations that could result in an episode of violence such as women cooking distasteful food, failing to provide timely care to children and the elderly due to workload, and forgetting to clean rooms. These incidents make women believe that violence majorly occurred due to their mistakes. Furthermore, the participants believed that this self-blaming of the victim resulted due to constant exposure to violence and a non-negotiable social positioning of women for raising questions. The participants stated that beliefs instilled by religion increased the likelihood of victimization for women. They explained that religious practices and ideologies required women to refer to their husbands as godly figures, and a religious belief that anything said or done against husbands was a disgrace bringing sin upon her and family positioned women in an inferior position. A male participant added,

We belong to a culture where females worship their husbands as a god, and this might be an important reason for men to feel powerful as a god to exploit and abuse women.

The discussions put forward the idea that the existence of discriminatory beliefs, reinforcement of such beliefs, and a blind following of such practices produced differences and violence. The male participants acknowledged that the idea of male supremacy not only produced violence but also established a belief system that considered violence as an indispensable way to treat deviated women. One male participant stated this idea of male supremacy and privilege as,

The language of the feet is essential when words fail.

The participants also discussed violence committed toward men by women. The male participants burst into laughter when they stated that some men were beaten by their wives when they were drunk. The male participants admitted that intoxication reduced their strength and they got beaten. The female participants, on the other hand, assumed that women hit intoxicated men due to frustration and helplessness. They further clarified that the act of husband beating was a situational reaction towards men who had spent all of their daily earnings on alcohol. They stated that women with the responsibility to cook and feed family find themselves in an utterly helpless situation by the irresponsible drinking behavior of men. The male participants shared incidences of violence against men due to foreign migration. It was revealed in the discussions that some of the migrating men’s wives had run away with remitted money, abandoning marriage, and breaking up the family. The male participants identified this as a form of victimization of men, furthermore, the spreading of rumors and gossip caused emotional instability in those men. The female participants confirmed that some returning men failed to find their homes, property, money, and/or their wives. The discussion participants in both groups identified that this practice was on the rise in the community. It became apparent from the discussions that this increasing trend of women running away with the money and breaking away from family was a personal issue requiring social remedies.

Chasing dreams

The participants referred to sex trafficking as the exploitation of women, arising from poverty, illiteracy, and deceit. Explaining the causes of trafficking, the participants stated that women living in poverty, having dreams of prosperity and abundance were tricked by the traffickers making them victims of sex trafficking. The participants mentioned that women who had dreams larger than life and yearned for a comfortable and luxurious life in a short time were at a greater risk for sex trafficking. The participants from both groups resonated that the traffickers had been manipulating the dreams of poor women and deceiving them into trafficking. A female participant elaborated,

Women in poverty can be fooled easily with dreams. She can be tricked by a trafficker by saying I will find you employment with good pay abroad, and she gets into the trap easily.

A male participant further clarified,

Women readily fall into fraud and trickery shown by the traffickers who assure of luxurious life with foreign employment and this bait often leads to sex trafficking.

They identified that false hopes for foreign jobs were primarily used as an entry point by the traffickers to trap potential victims. Besides, they stated that some traffickers tricked women with false romantic relationships and marriages to win over their trust enabling traffickers to maneuver women as they wished.

It was identified that traffickers were not always strangers but known and familiar faces from the community, allowing the traffickers to gain the victim’s trust. The discussions divulged that traffickers strategically chose women who were less educated and poor. The participants explained that sex trafficking mostly occurred among women from a lower caste (the caste system is hierarchy-based in Hindu society which is determined by birth and unchangeable). They further explained that if one of these lower caste women went missing, it seldom raised any serious concerns in society, making these women easy targets for the traffickers. The discussions revealed that life for the survivors of sex trafficking was difficult. They identified that the survivor had to face strong stigmas and stereotypes which further increased their risk for re-victimization. The participants explained that the social acceptance of the trafficking survivors was minimal and finding a job for survival was very difficult. It was reported that social beliefs, norms, and practices were rigid for sex trafficking survivors and provided lesser opportunities for complete social integration. A female participant stated,

The story of a sex-trafficked woman does not end after her rescue. It is difficult for her to live in society, and this increases her chances of being a further victim.

The discussions in both groups highlighted that education and awareness were important for reducing sex trafficking. The participants felt that securing a livelihood for women was essential, but they identified it as a major challenge. The female participants recommended the use of education and awareness for reducing sex trafficking. They demanded effective legal actions and stringent enforcement of the law with maximum punishment for offending sex traffickers. They mentioned that the fear of law with maximum punishment for culprits could help decrease cases of trafficking.

The theoretical concept of power play

The discussions identified that gender inequality and violence against women occurred as men possessed and exercised greater authority. The participants explained that the authority emerging from male-centric beliefs was reinforced through established socio-cultural institutions. It was known that oppressive practices toward women in both public and private life have led to the domination and devaluation of women. The differences between men and women were known to be instilled by evoking discriminatory beliefs and due to internalization of them as fundamental truths by women which further helps to sustain these created differences.

The concept of power-play developed from the study has its roots in the belief systems and was found constantly used by men to maintain created differences. The power-play rise due to patriarchy, guiding discriminatory norms and unequal gender practices. These norms and practices in the canopy of patriarchy positions women inferior to men and impose control and restrictions. The power play possessed multi-dimensional effects on women such as creating further barriers, restricted life opportunities, the need for men-centered anchoring systems, and exclusion from the public arena. The power play gains its strength from the strict enforcement of stereotypical practices and committed adherence to gender performances. This leads to internalization of subordination as a natural occurrence by women. These further isolate women putting them into several non-negotiating positions. The power play at an individual level provides restrictive movement for women, barring them from quality education and other life opportunities, and is exhibited in alcohol-related assault and sexual violence. At the structural level, this power play limits women from economic opportunities, access to resources, and decision-making, and induces socio-cultural inequality exhibited in dowry and cases of witchcraft. The socio-cultural acceptance of power-play allows men to use violence as a misuse of power and use it as an effort to maintain authority. The use of power-play for committing violence was identified as the worst display of exercised power play.

Figure  1 describes the concept of power-play developed from the study. The power-play model is based on discussions and inferences made from data analysis. The model provides a description and explanation of how women are subjected to inequality and face violence. The concept of power play derives its strength from the subjugated status of women which are based on selective treatment, self-embodiment of inferiority, imposed restrictions and due to lesser life opportunities. The power play gain legitimacy through social approval of the status differences between men and women and through social systems and institutions majorly developed and favoring men. The status difference between men and women and its approval by developed social institutions and processes give rise to the concept of powerplay. It identifies that status differences allow men to gain and (mis)use power play not only to maintain differences but also enable men to use violence. The use of power-play exists at both interpersonal and cultural levels. Further, the model elaborates on influencers causing subjugation of women, display of power-play, and violence. The model identified that lodging public complaints and seeking legal remedies are the influencers that suppress violence against women. The influence of Forum Theater was perceived to have greater influence for victim, perpetrator, and bystanders. The influencers that aggravate violence are fear of further violence, the nature of the interpersonal relationship, alcohol-related abuse, and remaining silent especially on sexual violence. The cultural violence mentioned in the model refers to dowry and witchcraft-related violence and stands as systemic subordination. In the model, sex trafficking is depicted as one of the outcomes of inequality and violence faced by women majorly occurring due to deceit and fraud.

The theoretical concept of power-play developed in this study identifies that inequality produces violence and violence further reinforces inequality, creating a vicious circle. The power play situates hierarchy based on gender as the primary cause and identifies violence as an outcome of this power asymmetry. The authority to use power by men is received by social approval from embedded structures and institutions. The functioning of associated structures and norms is designed and run by men helping to perpetuate the dominance and subjugation of women. The study identifies that both interpersonal and socio-cultural violence emerges due to the positional differences and use of power. The study found that an element of control exists in interpersonal violence. The findings show that few victim women in the community took advantage of consultations and rely on the law to evade and /or cope during the occurrence of interpersonal violence. A large number of victims women however suffer silently as they are unable and unwilling to take a stand on violence due to their perceived positional differences and strict norms following. The study finds that violence originating from socio-cultural systems is widely accepted and no established means of control exists. The practice of heinous acts against a fellow human during witchcraft allegations and dowry exchanges is prohibited by the law of Nepal but is widespread. This situates that practices which are based on belief systems are more effective than prevailing national laws which try to stop them. Sex trafficking as a form of sexual violence use deceit and fraud against women. Poverty and illiteracy compel women to search for alternatives, and they become easy victims of sex trafficking when their dreams of a better life are manipulated by the traffickers. The false promise of a better life and highly paid job put women in a non-negotiating position with traffickers. The cherished dream of escaping the prevailing status-quo of oppression, subordination, violence, and poverty mesmerizes women to take risky decisions, falling into the risk and trap of sex trafficking.

The socio-cultural norms are the unwritten script of social operatives and functioning. These social norms function as codes of operation and are a major determinant for behavior and interactions between people [ 43 ]. The study has found that these norms were skewed, and most favored men, giving rise to status differences and producing inequalities for women. This is observed with lesser life opportunities, lower participation in decision-making, and a constant need to anchor women. This further helps men to maintain their hierarchical positional status and use violence. The subjugation of women does not occur in a linear process, it is influenced by the internalization of discrimination resulting in lower self-esteem, suppression, and domination of women based on norms and unequal practices. Earlier research has identified that norms and beliefs encourage men to control women, and direct them to use force to discipline women which increases the risk of violence occurrence [ 44 , 45 ]. An earlier study shows that traits of masculinity require men to become controlling, aggressive, and dominant over women to maintain status differences [ 46 ]. The study confirms that men upon receiving both normative and social approval for using violence against women can do so without hesitation.

Violence against women in Nepal mostly occurs inside the home and is only reported when it reaches higher levels of severity. The acceptance of violence as a private affair has restricted women from seeking support and discourages them from communicating their problems with outsiders [ 47 ] this increases more likelihood for men to use violence. The study finds issues related to sex and sexual violence is a taboo and are seldom reported. The study could only identify cases of sexual assault registered with the police and other cases known to the wider community as sexual violence. A community with known incidents of rape may have other cases of abuse, harassment, incest, forceful sexual contact, etc. Failure to report incidents of sexual violence infer that a large number of women could be suffering in silence. Earlier research identifies that increased stigmatization associated with sexual violence, and fear of seclusion cause reluctance in victims to report or seek support [ 48 ]. This silencing of victims provides men with greater sexual control over women [ 49 ] increasing more likelihood of use of violence. Gender-based inequality and violence intersect structures, institutions, and socio-cultural processes, making inequality and violence visible at all levels. The dowry-related violence and witchcraft allegation intersect interpersonal and structural violence. This cultural violence forces women to be a victim of lifelong abuse and trauma. The intersecting relationship between gender norms, social structures, and individual is so closely knitted that it produces varieties of inequality and violence at all levels [ 50 ]. Emotional violence in this study only emerged as a type of violence, during discussions in both groups. It did not emerge as a major concern for the participants except for dowry-related violence and violence against men. The intertwined nature of emotional violence and its occurrence with each abusive, exploitative, and violent situation may have influenced the participants understand it as a result, rather than as a specific type of violence.

The power play between sexes was found in synchronicity with the established norms and prevailing stereotypes, helping to perpetuate gender power imbalance. The gender system is influenced and governed by norms and the social arena becomes the site of its reproduction through the interaction and engagement of people. This interaction provides approval to the institutions and processes that are based on constructed differences between men and women [ 51 ]. The power, as identified by Fricker [ 52 ], controls a social group and operates and operates through the agent or established social structures. A man can actively use the vested power to either patronize and/or abuse women while passively women’s internalization of social settings and embedded norms can put them docile. The social controls as reported by Foucault [ 53 ] work with the embedded systems of internalization, discipline, and social monitoring and uses coercion rather than inflicting pain. The internalization of status differences among women as indicated by the study confirms this schema of social control. The dominance of men over women with patriarchal beliefs establishes the significance of male-centered kinship. This requires women to constantly anchor with men providing grounds for inequalities to perpetuate further. This idealizes men and reinforces the belief that women are non-existent without their presence. The requirement for male anchorage has an attachment to prevailing structural inequality. The family property and resources are mostly controlled by men and it usually transfers from father to son limiting inheritance to women [ 51 ]. These glorified idealizations of men's competence as described by Ridgeway [ 54 ] idealize men as individuals with abilities, status, power, and influences. The need for women to rely on men as anchors, fear of going against the norms and social sanctions explains the positional difference and show that men possess greater competencies. The internalization of men-centric superior beliefs by women occurs due to self-passivity and devalues women creating false impressions of their abilities. The gender roles and responsibilities were strict for both sexes but provided greater flexibility, privilege, and opportunity for men. Earlier studies in congruence with this study find that socio-cultural expectations limit women from deviation, and strictly adhere to their prescribed role and expectations [ 55 , 56 ] providing an upper hand to the men. The unequal social positioning of women, as defined by a few of the participants, can help define men's use of violence. As inferred by Kaufman [ 57 ], the disadvantageous position of women and support from the established structures enable men to use aggression and violence with considerable ease. The concept of power-play derived from this study also reflects that inequalities not only create hierarchies, putting women into a subordinating position but also legitimize norms of harmful masculinity and violence [ 57 , 58 , 59 , 60 ] creating a vicious cycle of inequality and violence. The concept of power-play developed by this study requires further exploration of gender relations, injustice, and patriarchy to identify multiple operatives of power with an outcome of inequality and violence.

Strengths and limitations of the study

The study followed the same participants over a period, which helped the study to achieve clarity on the topics through constant engagement. The data collection and the initial data analysis of the study were conducted by the same person, which reduced the risk of misrepresented findings. The study used follow-up discussions, which provided an opportunity to meet the participants again to resolve any ambiguities. The constant engagement with the participants helped to develop rapport and trust, which is essential to enable meaningful discussions. The study gathered rich data for developing the theory of power play in the Nepalese context. The study has attempted to explain the interplay of men’s use of power play, gender inequality, and violence against women, which, in itself, is a complex, but important issue. The study helped to develop a platform by identifying a level of awareness and needs for a Forum Theatre intervention study, a first of its kind in Nepal.

The major limitation of the study is that it was conducted with only one of the ethnic populations of Nepal; thus, the findings from this study cannot be generalized to a completely different setting. However, the transferability of the study is possible in a similar setting. The incidences of inequality and violence shared by the participants were self-reported, and no other means of verification were available to crosscheck those claims. The differences among the participants both in and between groups based on education and marital status might have influenced the study participants to understand, observe, and experience the phenomenon. The possibility of social desirability bias remains with the study, as a constant engagement with the study participants might have influenced them to answer differently. Furthermore, the discussions were conducted in groups, and participants might have had hesitation to bring up any opposing views. The study relied on collecting information on social norms and individual experiences and the perceptions of the study participants. It cannot be claimed that the study is devoid of any data rigidity as participants were free to choose what they wanted to share and express.

Study implications

The study explains gender practices, norms, violence against women, and sex trafficking in Nepal. The study helps to increase the understanding of how gender systems are operative in the daily lives of the Tharu community in the Morang district of Nepal. Future studies can explore the established linkages of interpersonal and socio-cultural violence. Like the complex link existing between gender inequality and violence against women, interpersonal violence and socio-cultural violence cannot be studied in isolation. The study provides an opportunity for future research on exploring how changing norms have been altering the position and victimization of women. The study finds that changing gender norms and responsibilities have, on the one hand, provided agency and empowerment for women, but on the other hand, they have also increased their risk of being a victim, an area that requires further exploration. The study has identified that constant engagement with the study participants through follow-up studies ensures the richness of data, which can be useful information for a future research study design. The study can be helpful for policy development, social activists, leaders, and researchers as it discusses prevalent gender oppressions and victimization, which need to be addressed. The findings from the study can be helpful for dialogue imitation and for designing intervention projects aimed at providing justice and equality to women.

The study identifies the presence of gender inequalities and violence against women in the study area. The positional differences based on norms, institutions, and practices have assigned greater privileges to men. The concept of power-play devised by the study ascertains the maintenance of gender hierarchy to produce inequality further and victimization of women. The subjugation of women based on the social-cultural process, embedded belief systems, and norms prevent women from life opportunities and dignified life. It situates men at the highest rung of the gender and social ladder providing a comparative advantage for men to use power. Violence emerges as men’s use of power play and as a strategy for the continued subjugation of women. Sex trafficking as a consequence of inequality and violence has its origins in illiteracy and poverty with women falling prey to the deceit of traffickers. It is important that dreams for progression provide motivation for women to develop further but at the same time, dreams should not be exchanged with trickery and fraud offered by the traffickers. Awareness and attitudinal changes are imperative to challenge unequal norms, and practices, and reduce the risks of sex trafficking. This can help to develop negotiations for power-sharing which helps to reduce inequality, violence, and preparedness in chasing dreams. Changes at both individual and societal levels are necessary to develop a collective action for establishing belief systems and practices providing women with an equal position and reducing the risk of violence.

Availability of data and materials

The datasets generated and/or analyzed during the current study are not publicly available due to privacy but are available from the corresponding author upon reasonable request.

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Acknowledgements

The authors are grateful to all the focus group discussion participants. The authors are indebted to Bhojraj Sharma, Deekshya Chaudhary, Subham Chaudhary, and Dev Kala Dhungana for their coordination and facilitation in reaching the discussion participants.

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PD, SKJ, and KS were involved in the study design. PD and KS developed the discussion guides. PD was responsible for the data collection and the data analysis. All authors read and approved the final manuscript.

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Dahal, P., Joshi, S.K. & Swahnberg, K. A qualitative study on gender inequality and gender-based violence in Nepal. BMC Public Health 22 , 2005 (2022). https://doi.org/10.1186/s12889-022-14389-x

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नेपाली भाषामा प्रयुक्त लैंगिक विभेदक उखान Gender discriminatory proverbs used in Nepali language

2022, प्रज्ञा Prajna

Proverbs/aphorisms indicating gender discrimination, devaluing women or with nature of provoking violence towards women are gender discriminatory proverbs. As proverbs are not only literal but also metaphorical and figurative, their meanings are to be inferred connotatively, taking into consideration the intention of the speaker and the context of the expression. In this article, it is intended to analyze the gender discriminatory proverbs, aphorisms, sayings, comments etc. prevalent in our society from a feminist point of view. In order to achieve this objective, some sample proverbs found in Nepali folk life indicating gender discrimination have been selected purposefully. Based on the selected discriminatory proverbs used during normal discourses in different parts of Nepal as primary source, they are critically analyzed according to the qualitative method from feminist points of view. Direct or indirect traces of patriarchal thinking is reflected in those discriminatory proverbs, aphorism, sayings, or linguistic commentaries. Language users are to be cautious and avoid such languages in both oral as well as written forms so as to create equity and equality in our society. Similarly, the language denoting gender discrimination should be discouraged while preparing school curricula and textbooks.

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Qlantic Journal of Social Sciences and Humanities

Shakir Ullah

This research aims to explore the controversial representation of women in Pashto proverbs. It delves into the cultural significance of these proverbs and their impact on gender roles and perceptions. Through a deep analysis of a distinct set of Pashto proverbs, this study explores the common stereotypes, biases, and gender-based discrimination fixed in these linguistic expressions. It also investigates the evolving dynamics of women's roles in Pashto society and the potential consequences of these proverbs on contemporary gender relations. The data was collected in Pashtun society, and elders were joined for this purpose. The study's findings showed that these proverbs portray women as weak and dependent, with men as their masters. The negative portrayal of women in Pashto proverbs affects their social and economic status.

Noor Sanauddin, Assistant Professor, Department of Sociology, UoP

This study analyses the ways in which gender relations are expressed and articulated through the use of folk proverbs amongst Pashto-speaking people of Pakistan. Previous work on Pashto proverbs have romanticised proverbs as a cultural asset and a source of Pashtun pride and ethnic identity, and most studies have aimed to promote or preserve folk proverbs. However, there is little recognition in previous literature of the sexist and gendered role of proverbs in Pashtun society. This study argues that Pashto proverbs encode and promote a patriarchal view and sexist ideology, demonstrating this with the help of proverbs as text as well as proverbs performance in context by Pashto speakers. The analysis is based on more than 500 proverbs relating to gender, collected from both published sources and through ethnographic fieldwork in the Khyber Pakhtunkhwa province of Pakistan. Qualitative data was collected through 40 interviews conducted with Pashto-speaking men and women of various ag...

International Journal of Education, Culture and Society

Kgomotso Theledi

Tsegaye Abie

Fakhteh Nakhavaly

Abstract—Proverbs are important part of a language and carrier of a culture. They reflect people's perspective and society systems. The discrimination and derogation against women in societies can be reflected in proverbs because they impact the social concepts greatly. By studying proverbs, the deep-rooted gender biased ideology in a society is observable. Persian is not a gender language, but studying 12,000 Persian proverbs through this research shows there are elements of oppression in some proverbs of this language which relate to women and violate the rights and dignity of them. 179 proverbs out of 12,000 ones include discrimination against both sexes. 84% of them include elements of semantic derogation against females and 16% include sex discrimination against males. Semantic derogation in Persian language shows women dominantly as: "evil and capricious", "The root of disasters" and "inferior and worthless" beings and men dominantly as "avaricious" absolutist and "cruel." Index Terms—sex discrimination, semantic derogation, sexism, gender language, proverbs

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Article Contents

1. introduction, 2. framing and litigating equality in nepal, 5. conclusions.

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Challenges and opportunities of gender equality litigation in Nepal

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Mara Malagodi, Challenges and opportunities of gender equality litigation in Nepal, International Journal of Constitutional Law , Volume 16, Issue 2, April 2018, Pages 527–551, https://doi.org/10.1093/icon/moy041

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The constitutionalization of an enforceable right to equality opens novel avenues to pursue gender equality claims and presents a new set of challenges for feminist activists. This article analyzes Nepal’s constitutional litigation for alleged breaches of the right to equality with respect to gender from the re-democratization of 1990 until the promulgation of the current constitution in September 2015. It makes one central argument: Nepal’s Supreme Court has played a pivotal role in advancing the rights of Nepali women by crafting—in an incremental way—a nuanced, contextually sensitive, constitutional meaning of gender equality. In this respect, gender equality jurisprudence has been central to the judicial construction of Nepal’s constitutional identity. Nepal’s extensive experience of gender equality litigation offers key comparative lessons—especially for deeply divided societies—on the accommodation of demands for social inclusion and the construction of social identities by constitutional means.

The constitutional right to equality—in its textual, jurisprudential, and operational dimensions—offers unique insights into the role of law in constructing the polity’s collective identity and in challenging (or preserving) existing socio-economic hierarchies. This article focuses on Nepal’s Supreme Court-level constitutional litigation for alleged breaches of the right to equality with respect to gender between 1990 and 2015. It presents one central argument: Nepal’s Supreme Court has played a pivotal role in advancing the rights of Nepali women by crafting—in an incremental way—a nuanced, contextually sensitive, constitutional meaning of gender equality. In this respect, gender equality jurisprudence has been central to the judicial construction of Nepal’s constitutional identity. The Court has contributed to the definition and re-definition of the collective identity of the Nepali polity by classifying which forms of conduct constitute unlawful gender-based discrimination, and for what reasons. This process of judicial “meaning-making” is articulated through the definition of the scope, remit, and boundaries of gender equality in a discursive fashion. In the span of twenty-five years, Nepal’s Supreme Court has progressively become bolder and more assertive in its decisions, initially deploying a more limited formal conceptualization of gender equality and then increasingly embracing a more substantive understanding.

The article’s central claim, however, ought to be qualified at the outset. While Nepal’s Supreme Court has overall made a tremendous contribution to improving the status and position of Nepali women, its interventions have not been uniform, equally incisive, or proportionally successful. A combination of structural and cultural factors both inherent in constitutional litigation and specific to the Nepali context helps to explain the uneven impact of gender equality litigation in the country. First, issues of access to justice, the lack of diversity on the bench, the stifling of the rights discourse through formalistic interpretation and overly technical legal language, the difficulty in implementing judicial decisions, and the non-democratic nature of courts raise the question of whether the courtroom per se is the most appropriate site to advance gender equality claims. 1 Second, the way in which claims are framed, understood, and disposed of in the courtroom is shaped by the multidimensional nature of gender equality claims, which straddle issues of class and identity, 2 and are of an intersectional nature. 3 In fact, gender interlocks not only with class but also with other identity-based forms of social differentiation. In Nepal, these are caste, ethnicity, language, religion, region, sexuality, age, and disability. The combination of these forms of “ranking systems” has created over the years a dominant social order, historically entrenched hierarchies, and path-dependent patterns of social exclusion and disempowerment. 4 The context-specific way in which forms of oppression and discrimination have interlocked in Nepal over the centuries bears profound impact on the structures of constitutional adjudication and the behavior of the actors involved in litigation. These factors are crucial to understanding the opportunities of – and limitations to – women’s constitutional agency in litigating the right to equality.

The article examines gender equality litigation in Nepal’s Supreme Court from the re-democratization of 1990 until the promulgation of the current constitution in September 2015. It represents the first major doctrinal account of the right to equality in Nepal over twenty-five years. In this respect, post-1990 Nepal is an ideal case study to investigate the judicial construction of the constitutional meaning of equality from a multidimensional perspective. An intersectional analysis of the country’s extensive gender equality litigation offers crucial insights into the role of law in constructing, re-constructing, and potentially unhinging social hierarchies. In fact, Nepal is one of the poorest, most unequal, and most diverse countries in the world. 5 Significantly, Nepal’s democratic opening in 1990 led to a sharper politicization of identity and growing demands for recognition from many marginalized groups. Nepal has also recently endured a ten-year civil war (1996–2006) launched by the Communist Party of Nepal (Maoist), which combined demands for equal recognition and redistribution. While identity and class-based political claims predate the “People’s War,” they were certainly radicalized by the conflict. Moreover, the civil war was the most systematic challenge to the monolithic state-framed construction of the Nepali nation. Nepali nationalism has been historically construed around the Shah monarchy, Hinduism, and the Nepali language—key markers of the identity of a country that was never colonized. Thus, the peace process (2006–15) was informed by the mantra of “building a new Nepal” by delivering social inclusion through radical state restructuring by constitutional means.

After 1990 the Supreme Court acquired a pivotal role in negotiating demands for equal treatment within Nepal’s legal domain in these crucial years. The new 1990 constitution granted the Supreme Court extensive powers to review primary legislation and entertain public interest litigation (PIL), transforming the Court into a key constitutional player. As a result, a staggering amount of cases investing the constitutional right to equality have come before Nepal’s apex court since the early 1990s. 6 The adjudication of gender equality claims at Supreme Court level offers key insight into the judicial construction of the category of women and their place in society through court proceedings. While gender identity is “transversal” to the narratives that inform Nepali nationalism, the definition of gender equality in legal terms through litigation bears profound implications for the constitutional construction of the collective identity of the Nepali polity. Gender equality litigation provides an interesting site to investigate patterns of marginalization in the country. The focus on gender brings into sharper focus the intersectional dimension of equality claims alongside the interplay of the politics of recognition and the politics of redistribution in their adjudication. Thus, Nepal’s extensive experience of gender equality litigation imparts key comparative lessons—especially for deeply divided societies—on the accommodation of demands for social inclusion on the basis of gender equality and the construction of social identities by constitutional means.

While the notion of political equality has shaped modern constitutional democracy since its origins, 7 it is only since the mid-twentieth century that equality as an enforceable right has gained traction and acquired a pivotal role in constitutional praxis. 8 In Nepal this feature became central to post-1990 constitutional arrangements. Thus, litigation pertaining to the constitutional right to equality ought to be framed in the broader context of the foundational and structuring functions of the constitution. This section analyzes the relationship of the right to equality to the constitutionalization of Nepal’s national identity, then focuses on the position and powers of the Supreme Court in interpreting and enforcing fundamental rights since 1990.

2.1. Constitutional nationalism and gender equality

The textual dimension of the constitution is the starting point to inquire about the legal articulation of the notion of “We, the People” and its relation to constitutional equality. In fact, “by expressing the common identity and norms of the nation, constitutions serve as the state’s charter of identity.” 9 In this respect, the 1990 constitution institutionalized a monolithic version of the Nepali nation centered on the dominant Parbatiya upper-caste Hindu males by subsuming the country’s many ethno-linguistic, caste, religious, and regional groups into a hierarchically structured collective identity under the banner of “unity in diversity” and restricting women’s rights to transmit citizenship. 10 The post-conflict 2007 interim constitution, instead, diluted these forms of constitutional nationalism and adopted a more inclusive approach to sociocultural diversity by declaring Nepal a secular state, remaining silent on the Shah monarchy and on citizenship, and curtailing the privileged status of the Nepali language. 11 Significantly, women had no representation at all in the drafting of the 1990 Constitution, and acquired very limited representation in the making of the 2007 document after several bouts of protests. 12

The importance of forms of constitutional nationalism becomes apparent when adopting an intersectional approach to gender equality litigation, which requires a further distinction to be applied to the bearers of equality claims. Tarunabh Khaitan has introduced the helpful categorization of social groups into “potentially national groups”—those with expressive salience, that is, with the potential of exclusively constituting a nation, such as ethno-linguistic and regional groups, and so forth—and “non-national groups”—those without expressive salience, such as women, LGBTI (lesbian, gay, bisexual, transgender, intersex), caste groups, dalits, and so forth. 13 This distinction between different types of disadvantaged groups helps to explain the success, or lack thereof, of their anti-discrimination claims. Applied to the Nepali context, an example of this distinction would be between equality claims made, on the one hand, by women and, on the other hand, by Adivasi Janajati groups or Madhesi. This raises the question of whether the claims of Nepali women belonging to potentially national groups are treated differently in litigation by virtue of their intersectional nature and potential threat not just to the existing social order but also to the nation. 14 Women—as structurally subordinated to men—are pivotal to the construction of the nation through their role in the biological reproduction of the community, appropriate forms of behavior that protect the boundaries of the nation, the transmission of the nation’s cultural values, the embodiment of the nation, and (to a lesser extent) participation in military struggles. 15

In this respect gender-based and ethnic, linguistic, and racial narratives are central to the process of nation-building, in which the constitutional arena is also fundamentally implicated. Beverley Baines and Ruth Rubio-Marín astutely conclude that “constitutional rights espouse, and are expected to espouse, the fundamental values of a nation and this has both good and bad consequences for women because courts are prepared not only to uphold but also to limit women’s claims in the name of those fundamental values.” 16 Thus, in Nepal, the essence of equality litigation—even in gender-based discrimination cases—has been the definition of a collective “We” alongside the relationship between different groups and their relationship to the state. When the Supreme Court adjudicates on equality claims, it draws the line between lawful and unlawful forms of inequality. By deciding which inequalities society can tolerate while rejecting others, the Court also justifies the basis of their acceptability or rejection. Through equality jurisprudence, the Supreme Court effectively defines and re-defines the hierarchy of belonging to the Nepali political community in the constitutional domain. Given the position of the Supreme Court as the guardian of the constitution and its prominence in the public sphere, the creation of a juridical classificatory discourse on equality and inequality has great legal and political implications for society at large well beyond the doors of the courtroom.

The definition of the right to equality in both documents has been inextricably intertwined with the framing of the nation. In fact, the 1990 Constitution favored a negative view of equality based on the principle of non-discrimination. Under the right to equality (article 11) cultural, linguistic, ethnic, and religious affiliations did not provide any basis to positive legal entitlements but were treated solely as possible causes for negative discrimination. The proviso also allowed for future enactments of special legislation for the advancement of the unprivileged segments of Nepali society. However, forms of affirmative action, as defined by the legislator, were not based on membership in a group whose identity was defined in ethno-linguistic or religious terms (that is, potentially national groups) but restricted to categories of “non-national groups” and class groups defined by their lack of resources similar to the category of “other backward classes” in the Indian Constitution. Additionally, the 1990 Constitution preserved Nepal’s tradition of legal uniformity, with no personal law system as in India. With the growing emphasis on social inclusion at the beginning of the peace process, the 2007 interim constitution took a further step toward the recognition of the rights of potentially national groups on the basis of sociocultural criteria such as ethno-linguistic and regional identity (article 13). Similarly to the 1990 document, the interim constitution left measures of positive discrimination in the hands of the legislator, but expanded and further defined the categories of those potentially entitled to such measures to include Adivasi Janajati and Madhesi.

2.2. Constitutional rights and the Supreme Court

The re-democratization of 1990 also entailed a significant shift toward the legal protection of rights in Nepal. From a domestic perspective, the new constitution contained an extensive fundamental rights section and mechanisms for judicial review of legislation and the enforcement of rights. From an international perspective, in the early 1990s Nepal ratified an array of international human rights instruments, which became enforceable domestically. The promulgation of the 1990 Constitution also brought substantial changes in the position and organization of the Nepali judiciary, expanding the powers and remit of the courts—particularly the Supreme Court. 17 The new constitution directly linked judicial independence to the protection of democratic constitutionalism (article 84). Moreover, the Supreme Court became the only institution authorized to provide the final and binding interpretation of the constitution. This was reflected in the Court’s extensive powers to review the constitutionality of primary legislation and void it under article 88(1). In Nepal, the Supreme Court’s power of judicial review explicitly featured in the constitution, emulating the developments in independent India.

Thus, the 1990 Constitution departed from the Westminster model by formally establishing limits on parliamentary sovereignty and institutionalizing “strong-form institutions of judicial review.” 18 In fact, article 23 on the right to constitutional remedy directly linked the protection and enforcement of fundamental rights to judicial intervention. It is also through the understanding of the concomitants, successes, and popularity of PIL in India that it is possible to evaluate the scope and goal of Nepal’s constitution-makers in 1990 in empowering the Supreme Court to issue prerogative writs and employ the mechanism of PIL under article 88(2). The relaxation of the rule of lucus standi led to a great number of litigants approaching the Court. Thus, the Supreme Court sought to streamline PIL petitions and identified the following key principles: the dispute has to be based on existing laws and not be hypothetical; the petitioner must demonstrate a reasonable connection with and a substantial interest in the dispute; and all other remedies must have been exhausted. 19 The Supreme Court’s powers of judicial review and PIL under the 2007 Constitution’s articles 107(1) and 107(2) remained virtually unchanged and allowed the Court to strengthen its position. The Court became progressively bolder and more assertive in its decisions. At the same time, the number of PIL petitions continued to increase and in December 2012 the Supreme Court sought to restrict access to the Court. 20 The reforms have been criticized and deemed excessive as they now represent outright barriers of access (for example, the mandatory requirement of legal representation). 21

Effectively, post-1990 constitutional litigation often combined PIL and judicial review proceedings. For instance, a great deal of gender equality litigation has been conducted in the form of PIL and abstract review of primary or secondary legislation. In other words, many of these cases did not feature aggrieved individuals seeking redress for a concrete human rights violation they had suffered but activist lawyers petitioning the Court in the name of public interest to have a specific law or part thereof declared void as breaching the constitutional right to equality. In a sense, the real defendants in these cases have been specific statutory provisions, while various government bodies as the respondent were tasked with defending the legal status quo. Therefore, the degree of the Supreme Court’s intervention ought to be measured not just by the contingent remedy provided but also by its vigor in engaging the other branches of government in the course of the litigation.

Significantly, Nepal’s Supreme Court has consistently lacked in diversity both in terms of gender and other socially marginalized groups. In 2013 the National Judicial Academy reported that the Supreme Court’s composition as of December 2012 featured fourteen judges in total, with only one female judge. Almost 86 percent of the Justices were Bahun/Chetri, including the only female judge. Dalits and Muslims were not represented at all, while only one Madhesi and one Janajati (a Newar, one of the few groups even more over-represented than Bahun/Chetri) judge featured. 22 In this respect, a United Nations Development Programme (UNDP) Report from 2017 concluded that the lack of diversity across Nepal’s judiciary has negatively affected the legitimacy and public perceptions of the judicial system, and also the ability of the bench to empathize with vulnerable groups. 23 Thus, the composition of the Supreme Court—dominated by the hegemonic groups—ought to be factored in when explaining patterns of judicial decision-making in gender equality litigation.

3. Constitutional equality and gender in Nepal: Doctrine and praxis

The analysis of Nepal’s long string of Supreme Court-level gender equality cases between 1990 and 2015 from an intersectional perspective illuminates the broader constitutional meaning of the right to equality and its operationalization. This article contends that the analysis of Nepal’s gender equality jurisprudence reveals how the Supreme Court has by and large advanced the rights of Nepali women by discursively construing the category of women as an object of equality in constitutional terms. To do so, the study analyzes key cases on the economic position of women within the family and in the workplace; the place of women within the family structure and their bodily autonomy; gender-based violence; and women’s ability to pass on residency and citizenship rights. What emerges from this critical overview of the key case law is a nuanced picture of the constitutional meaning of gender equality. The judicially construed classification of conduct as discriminatory or non-discriminatory has become a core element of Nepal’s constitutional identity negotiated between traditional autochthonous values and modern global norms.

3.1. The economic position of women: Property rights, tax, and employment law

Gender equality litigation in Nepal started with demands for ending gender-based discrimination in financial matters. These claims sought to redress injustices of both misdistribution and misrecognition. Petitioners in this line of cases have consistently been activist lawyers working through non-governmental organizations (NGOs), and their litigation strategy combined PIL with judicial review proceedings. Their ultimate goal was to use constitutional litigation to change the law. As such, most cases have been abstract challenges to the validity of different pieces of legislation violating the constitutional right to equality, often alongside other constitutional rights and international obligations. The key factor determining the outcome of this batch of cases has been whether discrimination against women was taking place within or outside the family. This “positionality” has determined how the Court conceptualized and treated Nepali women. When litigation has engaged the position of women within the family, the Court has effectively treated them as a valuable and indispensable part of the larger familial unit but has not challenged their structurally subordinate position. As such the Court consistently held that women are entitled to fair treatment within the family and a modicum of redistribution to correct unfairness. But it stopped short of recognizing their autonomy and unhinging those traditional roles.

The Supreme Court has not addressed gender-based injustices of misrecognition because it has assumed that women’s identities and economic entitlements are defined by their gender roles within the family. These ascribed feminine “reproductive” roles have long structured the allocation of resources within the family in which women are by definition subordinate to men. The Supreme Court has not challenged this hierarchical ordering but took it at face value. However, when litigation has engaged the position of women in the labor market outside the family, the Supreme Court has been vocal and uncompromisingly progressive in construing women as independent individuals making their financial way into the modern world. Thus, the Court has condemned gender discrimination as an outdated form of economic inefficiency to be eradicated by legal means, and Nepal’s judicial construction of gender equality in the economic sphere has been informed primarily by traditional gender roles within the family, and prima facie, not by intersectional considerations. However, it is clear that this line of litigation has been primarily dictated by the preoccupations of upper class and middle class women from the dominant groups who have higher stakes in redistributive reforms of property law.

(a) Property and inheritance law

The first important Supreme Court decision on property rights is the famous Mira Dhungana (2052) case, in which activist lawyers challenged the validity of section 16 of the Muluki Ain ’s chapter 13 on inheritance for daughters. 24 The Court acknowledged that the Code treated sons and daughters differently but argued that women were also entitled to a share of their husband’s property, hence agreeing with the respondent’s view that in Nepali society women have two different kinds of status: daughters living in their fathers’ houses before marriage, and wives living in their husbands’ houses after marriage. The Supreme Court relied on the advice of the amicus curiae, who had argued that the case had raised the problematic question of Nepal’s social structure and, implicitly, of the relationship between law and society in the Nepali context. The amicus suggested that the complex issue of gender equality ought to be dealt with by parliament in a more comprehensive and systematic fashion.

The Supreme Court did not exercise its power of judicial review to strike down the impugned provision. The bench issued a mandamus to the government to introduce an appropriate bill in parliament in consultation with the various competent organizations. The Court also recognized the “patriarchal bias” of Nepali society, but it did not declare the provision ultra vires on the basis that “making sudden changes in traditional social customs and social norms which society has followed since long time society might be unable to adjust to these changes.” The Court did not challenge the ideological foundations of these discriminatory practices and did not address the substantive meaning of equality under the constitution. Justice Laxman Aryal argued that—rather than the outcome of the litigation per se— in primis the significance of the case resided in the fact that the Court had entertained the petition, hence opening the courtroom’s doors to activist litigation and engaged the government by directing it to introduce legal reform in this area.

The Supreme Court adopted the same approach in the Sapana Pradhan Malla (2053) case, a PIL challenging the constitutional validity of section 26(1) of Land Act 1964 concerning daughters’ tenancy rights. 25 The Court again did not exercise its power of judicial review and ordered the government to introduce an appropriate bill in parliament after consultations. The different position of daughters in the matter of tenancy rights was explained in relation to traditional social practices, “because a daughter after contracting her marriage is expected to go to the other house [that is, the marital home] and become part of the other family according to the usual social values and rituals.” The Court employed the South Asian notion of kanyādān (“giving away the bride”) to justify the exclusion of daughters from tenancy rights. It was argued that the provision had been devised to guarantee the continuity of possession of the land within the tenant’s family, ultimately to encourage agricultural production. Again the Supreme Court, while recommending an overhaul of this area of law, justified the rationale of gender discrimination in the existing legal regime.

In the Canda Bajracharya case, activist lawyers filed a PIL seeking the constitutional review of a number of Muluki Ain ’s provisions discriminating against women on the basis of the right to equality and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 26 Yet again the Supreme Court deferred to the legislature and did not invalidate the impugned legislation but explained the existing legal framework in light of Nepal’s social and religious traditions. For the first time in cases pertaining to the right to equality, the Court directly connected the reference to Nepal’s traditional social structure to the constitutional definition of Nepal as a “Hindu kingdom” in article 4(1) and the peculiar connotation of religion in article 19. The Court recognized that these provisions treat men and women differently but then argued that it is nearly impossible to realize absolute equality. The judges also held that family and social customs are inextricably intertwined like various provisions of Nepal’s legal system, which is based on Hindu law. Thus, it would be unwise to strike down provisions in an erratic fashion and a systematic process of legal reform carried out by parliament would be preferable. Ultimately, the Supreme Court interpreted Nepal’s social practices and traditions as reflected in the law to be quintessentially Hindu—just like the nation.

Notwithstanding the mixed experiences of activist lawyers in petitioning the Court via constitutional litigation, these early cases played a crucial role in transforming the Supreme Court into a key public forum in which women’s rights were debated, interpreted and ultimately defined in their scope and remit. Moreover, even if the Court did not often grant a remedy, it exercised pressure on the government to introduce reforms designed to achieve greater gender justice. Thus, the Muluki Ain (11th Amendment) Act was eventually passed in 2002 and took important steps toward gender equality. 27 Activist lawyers were encouraged by the legislative developments and petitioned the Court further by combining abstract review of legislation with PIL. In the post-2002 case law on women’s property rights, the Supreme Court became progressively bolder, tested the effectiveness of the 11th Amendment, and started to invalidate legislation.

The Mira Dhungana (2061) case challenged the validity of section 12A of the Muluki Ain ’s chapter 13 on inheritance introduced by the 11th Amendment forcing daughters to return their share of the inherited property after marriage. 28 The Court struck down the impugned provision and directed the government to set up a commission to study and reform the laws discriminating on the basis of gender. Similarly, in the Sapana Pradhan Malla (2061) case the validity of section 2 of the Muluki Ain ’s chapter 13 on inheritance discriminating between women on the basis of marital status was challenged. 29 The Court directed the government to set up a commission to study this area of law and then to amend the existing framework accordingly. Along those lines, the Prakash Mani Sharma (2062) case challenged the validity of sections 1A and 16 of the Muluki Ain ’s chapter 13 on inheritance requiring daughters to return their share of the ancestral property after marriage. 30 The Supreme Court did not invalidate the impugned provision but held that it violated the constitutional right to equality, a number of international legal instruments, and the spirit of the Muluki Ain ’s 11th Amendment, which was to secure equal inheritance rights for daughters. As a result, the Court directed the government to consult with civil society actors in order to assess the impact of the amendment and introduce further changes to the Code to eliminate gender-based discrimination in this area.

In another landmark decision, the Lily Thapa (2062) case, activists challenged the validity of section 2 of the Muluki Ain ’s chapter on women’s exclusive property, constraining the rights of women to dispose of their immovable property independently. 31 The Supreme Court held that the impugned provision imposed an unreasonable restriction on women and declared it to be ultra vires because it was discriminatory. The same reasoning was adopted in the Mira Dhungana (2063a) case, which successfully challenged the validity of section 7 of the Muluki Ain ’s chapter on women’s exclusive property, restricting women’s ability to transfer their property on the basis of their marital status. 32

The shift in the Supreme Court’s attitude toward women’s equal property rights claims was accompanied by a change in the authorities supporting the decisions. The post-2002 case law features extensive references to Nepal’s international law obligations to explain the Court’s more interventionist stance and a move away from discriminatory traditions and customs. The Supreme Court also continued to focus on its dialogue with the government and the legislature. In fact, after the promulgation of the interim constitution in 2007 and the passing of the Gender Equality Act 2006, more cases on women’s property rights reached the Supreme Court, and confirmed the post-2002 position. 33 However, it is crucial to highlight that while the Supreme Court sought to achieve greater fairness in the distribution of material resources between men and women within the family, it did not challenge the gender-based male–female distinction that justifies gender-based discrimination in Nepal’s property law. This is reflected in the fact that, according to the 2011 Census, only in 19.71 percent of Nepal’s households do women enjoy ownership over land and property. 34 According to the earlier 2001 Census, less than 1 percent of the total households reported female ownership of the main three types of economic assets (house, land, and livestock). Significantly, this was the case across all of Nepal’s social groups, condemning women across Nepali society to face greater economic insecurity than men “since their access to what has traditionally been the primary means of production has always been indirect and dependent on their relation as the daughter, wife or mother of a land owning male.” 35

(b) Tax law, employment law, and quotas

The second batch of cases on the economic position of women concerns the legal treatment of women with regard to their work outside the family. In this respect, it is interesting to compare two gender equality cases in which women petitioned the Supreme Court to secure equal economic treatment to those of men. In Sarala Rani Rauniyar the petitioner unsuccessfully asked the Court to declare ultra vires section 21(a) of the Income Tax Act 1974, which required that a wife’s income be assessed on her husband’s name, on the grounds that it violated the right to equality. 36 The Court held that equality is not absolute and laws are discriminatory only when they provide unreasonable classifications between men and women. For instance, in this case, the Court argued that the law does not mandate a lower tax rate for husbands’ income than for wives.

The Supreme Court, however, adopted a completely different approach in the case of Rina Bajracariya , a petition regarding discrimination on the basis of gender in the retirement age of the employees of the Royal Nepal Airlines Corporation (RNAC). 37 The Court exercised its power of judicial review and struck down rule 16(1)(3) of the RNAC Service Regulations. It was held that the provision violated the right to equality and adopted a completely different reasoning to justify its decision. The difference in the outcome of these cases is best explained by looking at their context and the justification offered by the Court. In Rina Bajracariya , the judges held that men and women are both human beings and as such are entitled to fundamental rights in an equal manner. Interestingly, the Court differentiated between the countries that adopt the principle of gender equality as civilized and humane and those that reject it as uncivilized and underdeveloped. The judges also explicitly associated the freedom of women with modern civilization and the dawn of democracy.

This enormous shift in the justification of gender equality offered by the Supreme Court is significant because the judicial message is unequivocal: women who have entered the marketplace as individuals ought to be treated as equal to men. Here the judges espouse the modern capitalist logic of meritocracy in which discrimination is treated as an economic inefficiency to be corrected. The deployment of a globalized equality language also frames gender equality in the context of international human rights and comparative constitutional experiences. As such, the Court identified the 1990 return to democracy and the promulgation of the constitution as crucial in the legal recognition of gender equality in Nepal because the document had been drafted in light of the experiences of the constitutional systems of other democratic countries and the universalization of human rights. The Court argued that it was in the spirit of the 1990 constitution to end all forms of discrimination against women. It also criticized parliament for not acting sufficiently fast in introducing legislative reforms on gender justice and giving form to the spirit of the constitution. The Supreme Court also went as far as arguing that the greatest impediment to end discrimination between men and women are the existing culture and laws. The comparison between these two cases reveals that the Court was prepared to recognize gender equality in the workplace but not women’s financial autonomy within the patriarchal structure of the family.

In this respect, Nepal’s Supreme Court succeeded in promoting a more equal playing field for women in the work place outside of the family by combining a strict approach to non-discrimination with a modicum of redistributive measures. This approach was also deployed in affirmative action cases on quotas and women’s access to public employment. In an early case on quotas, Pradhosh Chetri , the Supreme Court adjudicated on the issue of reservations for the enrollment in academic institutions of women and other marginalized groups. 38 The Court directed the government to enact legislation to uplift the weakest segments of society pursuant to the right to equality. To support the advancement of women in the public sector, in Pro-Public (2062) the Supreme Court ordered the government to streamline the length of the probation period for female civil service employees. 39 Similarly, in the Mira Dhungana (2064) case, the Supreme Court struck down rule 10 of the Royal Nepal Army Rules providing for the allowance to daughters of service men to be discontinued after their marriage as violating the right to equality. 40 On the same basis, in the Sapana Pradhan Malla (2066) case, the Supreme Court invalidated the provision of the Military and Police Regulations prescribing that women—unlike men—had to be unmarried to join the force. 41 The Supreme Court has declared in an unequivocal and consistent manner that once women step out of the family and into the labor market the constitutional right to equality mandates non-discrimination on the basis of gender and equal economic treatment between men and women.

3.2. Women in the family: marriage, divorce, dowry, and reproductive rights

Nepal’s Supreme Court has interpreted gender equality within the familial relationship in a similar fashion to the case law on the economic position of women. Prima facie intersectional considerations had almost no role in the judgments. However, a more careful analysis reveals that many of these areas of law have been influenced by the legal culture of dominant Parbatiya groups. As a result, the Court has not challenged traditional gender roles but interpreted equality of treatment to mean fairness of treatment and extended judicial protection to women, who remain in a structurally weaker position. This has often resulted in a removal of discriminatory rules, but without challenging traditional gender roles in matters of marriage, divorce, and dowry. Instead, the area in which the Nepali Supreme Court has made enormous strides is that of reproductive rights. Starting from the need to protect women’s well-being, the Court went on to affirm women’s autonomy and their right of controlling their own bodies as independent individuals. The Court masterfully crafted a judicially sanctioned form of empowerment under the guise of protection.

(a) Family law

Immediately after the 11th Amendment of the Muluki Ain was passed, a string of PIL cases seeking review of various family law provisions conflicting with the constitutional right to equality ensued. Overall the Supreme Court responded positively to these actions and sought to ensure women were treated fairly within the family by removing discriminatory barriers. In the Chandra Kanta Gyawali (2061) case, the petitioner challenged the validity of section 9 of the Muluki Ain ’s chapter on marriage prescribing a different legal treatment for men and women in cases of bigamy. 42 The Supreme Court declared the provision ultra vires as conflicting with the constitutional right to equality. On a similar note, the Mira Dhungana (2063b) case was a challenge to the constitutionality of Section 1 of the Muluki Ain ’s chapter on marriage allowing the husband to obtain a dissolution of marriage on the basis of the wife’s infertility but not vice versa. 43 The Court declared the provision ultra vires on the basis that it violates the right to equality and international human rights standards; it also ordered the government to introduce the appropriate amendments to the existing legislation.

In the Sapana Pradhan Malla (2063) case, the petitioner asked the Supreme Court to strike down the provision of the Marriage Registration Act that differentiates between men and women with regard to their marital age, 22 and 18, respectively, and conflicted with the Muluki Ain . 44 On the basis of the petitioner’s argument as supported by a United Nations International Children’s Emergency Fund (UNICEF) report that the existing legal position violated the right to equality and facilitated child marriages, the Court held that the provision breached the right to equality, but it did not exercise its power of judicial review and ordered the government to amend the provision accordingly. A similar approach was adopted in post-2007 gender equality litigation on family law matters. In the Sapana Malla (2063) case the Supreme Court reviewed section 9 of the Muluki Ain ’s chapter on marriage allowing husbands to remarry when the wife is affected by an incurable venereal disease or serious mental disability. It found the provision to be discriminatory, but did not strike it down. Instead, the bench ordered the government to bring this piece of legislation in line with the interim constitution. 45 While the Supreme Court consistently ruled in favor of gender equality, it never recommended to the legislator the adoption of gender-neutral language in family law matters. This illustrates that the strides made by the Court on these issues have remained limited to securing a fair treatment of women within the traditional familial structures but did not extend to challenging those roles.

The constitutional litigation on dowry offers invaluable insights into gender-based discrimination and its costs, in terms of both material distribution of resources and potential violence against women. The payment of dowry to the groom’s side can be viewed as a price that the bride’s family pays to secure their daughter’s place in society through a suitable matrimonial arrangement and as a sort of insurance for the bride’s future. The system of dowry is ultimately underpinned by the idea that women have a lower and more precarious status within society and within the family. As such the endowment of dowry reflects a gender-based structural social imbalance, requiring extra “material support” for women—an insurance premium the bride’s family has to pay to secure the bride’s future and almost a form of compensation to the groom’s family for taking in the bride. Thus, it is impossible to develop a gender-neutral response to regulate the giving and taking of dowry—and its criminalization. The Court condemned the practice as a social evil—as do all the other South Asian courts – but in justifying its decision it never addressed the root causes of the problem, that is, the cultural taboo of the unmarried woman, and the social imperative of securing an appropriate matrimonial match.

In this line of cases, given the complexity of the issue, the Supreme Court in primis sought to retain a dialogue with the other branches of government, while also taking an activist stance. In the Mira Dhungana (2063c) case, the petitioner succeeded in persuading the Supreme Court to declare ultra vires the provisions of the Social Behavior and Reform Act 1976 discriminating between the bride’s side and the groom’s side in the punishment for giving and demanding dowry. 46 The Court ruled that the provision violated the right to equality and issued a directive order to the government to amend the relevant legislation. Similarly, in the case of Ram Pant Kharel (2063), the Supreme Court dismissed the petitioner’s request to declare ultra vires section 5 of the Social Behavior and Reform Act 1976 on the basis that the ground was not made out, but issued an order to the government to implement the letter and spirit of this piece of legislation with a view of eradicating the social evil of dowry. 47 In the landmark case of Jyoti Lamsan Poudel , the Court ordered the government to introduce legislative reforms on dowry regulation, enhance the punishment for dowry-related offences, and ensure implementation both to deter and to eradicate the practice. 48 The Supreme Court’s approach to dowry reflects the more general attitude of the Nepali state, which continues to increase the criminal penalties for dowry but does little to empower women as individuals regardless of their position within the family. As a result, the practice of dowry and the harm it causes remain widespread. 49

(c) Reproductive rights

With regard to women’s bodily independence and control over their reproductive rights, the Supreme Court has taken a consistent stance in prioritizing the protection of women through an expansive interpretation of the constitutional right to equality. It was only in 2002 with the Muluki Ain ’s 11th Amendment that Nepal’s abortion laws were substantively liberalized. In the early case of Sapana Pradhan Malla (2062), the Supreme Court tested the legislative reforms and directed the government to amend the provisions on sentencing for abortion-related crimes that distinguished between pregnant women and facilitators. 50 Conversely, in the case of Achyut Kharel (2065), the petitioner sought to claim that Nepal’s abortion laws discriminate against Nepali men because the husband’s consent to the procedure is not required. 51 The Court dismissed the petition and the following year the new interim constitution specifically recognized women’s reproductive rights as part of the constitutionally protected and justiciable fundamental rights.

Under the guise of the right to equality the Supreme Court protected women’s reproductive rights and health in the Prakash Mani Sharma (2065) case whereby the Court issued an order of mandamus to the government to secure medical treatment for women affected by uterus prolapse. 52 Similarly, the Supreme Court ordered the government to protect the reproductive rights of female prisoners. 53 Finally, the Supreme Court issued a landmark judgment in the case of Laxmi Devi Dhikta , in which abortion rights were deemed to be integral to the right against discrimination and the right to equality. 54 With regard to the implementation of these landmark judgments, the accessibility and affordability of abortion services, especially in remote areas, remains problematic.

3.3. Violence against women and harmful practices

Another batch of gender equality cases combined judicial review and PIL to eradicate pernicious customs and violent behavior against women. These were purely identity-based non-discrimination cases filed on the basis of a negative understanding of the constitutional right to equality. The Supreme Court consistently sought to affirm the principle of equality interpreted in this context as a means of protecting the weakest segments of society and banning socially repugnant behavior. In this line of cases, the Supreme Court continued to address indirectly the question of what kind of polity Nepal aspires to be by determining which forms of conduct toward women (or certain categories of women) are acceptable, and which ones are not. The outcome of these cases, and in particular the justification offered by the Court, are pivotal to understanding the role of gender in the judicial construction of Nepal’s constitutional identity. This is because the treatment of women has long been regarded as a key indicator of the civilizational level of a nation in the modern era.

(a) Superstitious practices

The Supreme Court became an institutional vehicle to combat traditional superstitious practices harmful to women. In Reshma Thapa , the Court ordered the government to introduce legislation to eradicate and deter conduct that victimizes women on the basis of witchcraft. 55 In the Dil Bahadur Bishwakarma case, the petitioner filed a PIL and obtained a declaration by the Supreme Court that the practice of chaupadi breaches women’s rights and violates the right to equality as well as an order of mandamus directed at various government departments to stop the practice. 56 Under this practice, women after childbirth and during menstruation are considered ritually polluting and are therefore forced by family members to leave the family home and live in a cowshed or hut, exposing them to a severe risk of sexual violence and attacks by animals. This practice is prevalent in Nepal among upper caste Hindu groups and dalits in the rural areas. In such cases the Court unequivocally condemned the practices and justified its decisions on the basis of the modern language of enlightenment and rights. Tradition is condemned as superstition that ought to be erased from modern Nepal by means of criminalization and developmental interventions by the state. These practices continue unabated, especially in more remote areas.

(b) Widowhood

Widows in Nepal suffer from widespread discrimination as a result of a certain line of interpretation in Hinduism. The Supreme Court has significantly changed its stance on this matter since the early case of Tara Paudel . 57 The petitioner, the widow of an Army employee, had married the younger brother of the deceased husband to continue receiving the family pension under the Army Pension Regulation Act 1961. By way of judicial review, she challenged the legal basis of a lawsuit of incest filed by another coparcener in the husband’s family against her at District Court level. The petitioner sought an order from the Supreme Court declaring section 4 of the Muluki Ain ’s chapter 15 on incest unconstitutional as in violation of the right to equality. The Court dismissed the petition arguing that the gender-based distinction between a widower and a widow results from the fact that they do not have an equal position in society due to social, religious, and traditional beliefs and practices. The Supreme Court interpreted the right to equality as “equal application of the law and equal protection of the law among equals—it does not mean the equal application of the law and the equal protection of the law among non-equals.” The different treatment under Nepali law between men and women who lost their spouse was again justified in terms of traditional social and religious values.

Later on, in the case of Kavita Pandey , the Court took a more progressive and reformist stance against the victimization of widows and invalidated the rule that granted different amounts for widows’ state pensions on the basis of their age. 58 In the Pro-Public (2069) case, the Supreme Court went even further: while condemning the hardship and prejudice that widows face in Nepal, it also recognized the material impact of discrimination and ordered the government to provide a monetary allowance to widows from the date of their husband’s death. 59 The Court went further than simply condemning this gender-based discriminatory practice and sought to rectify the harm it causes through redistributive measures. However, the Court did little in terms of justification of its decision to challenge the root causes of the practice.

(c) Sexual violence

Nepal’s Supreme Court adopted an activist stance in cases concerning sexual violence. In Mira Dhungana (2059), the Court adjudicated on the issue of marital rape through the lenses of the right to equality. 60 The petitioner sought an order from the Court declaring section 1 of chapter 14 on rape in the Muluki Ain unconstitutional as in breach of the constitutional right to equality and various international human rights instruments because the definition of the offense excluded “wife” from the categories of women listed as potential victims. The Court issued an order of mandamus to the government to introduce appropriate legislation to include the offense of marital rape, and declared marital rape a punishable criminal offense. The judicial reasoning in the case is significant. The government lawyers had argued that “according to our Hindu traditions and values, a husband having sexual intercourse with his wife can never be considered rape.” The Supreme Court rejected the argument and held that “the Dharmaśāstra cannot condone marital rape because the true scope of religion is to promote love.” The Court further refined the meaning of equality and argued that all women, by virtue of being human beings, are entitled to the enjoyment of fundamental rights and protection from harm irrespective of their marital status.

Post-2007, the Supreme Court’s position on marital rape was reasserted in Jit Kumari Pangeni —a rare instance in which the petitioner was directly affected by the legal issues in the case. 61 The Court held that the statutory provisions differentiating the length of custodial sentences for the offenses of marital and non-marital rape violated the constitutional right to equality and ordered the government to streamline them. Adopting the same reasoning that the status of the woman is irrelevant to the offense of rape, in the case of Sapana Pradhan Malla (2059), the Supreme Court declared ultra vires part of section 7 of the Muluki Ain ’s chapter on rape discriminating against prostitutes. 62 The Supreme Court reaffirmed the principle that all women are equally entitled to protection from sexual violence, regardless of their role within the family or position within society.

(d) Gender-based violence

Along similar lines, the Supreme Court has consistently sought to protect women from gender-based violence through an expansive interpretation of the right to equality and to retain a form of dialogue with the other branches in order to develop suitable legislative reforms. In the case of Jyoti Paudel , the Supreme Court issued an order of mandamus to the government to establish a fast-track court presided by female judges to hear cases on violence against women, especially domestic violence, and make arrangements to safeguard the privacy of the victims. 63 The Court reviewed section 7 of the Domestic Violence (Offence and Punishment) Act 2008 in light of the right to equality and justified the necessity of special procedural measures in cases of gender-based violence. In this respect, the Supreme Court’s efforts in protecting women went as far as issuing an order of mandamus to the Ministry of Information and Communication to implement a gender-friendly advertising policy in the Raju Chapagai case. 64 The order was in response to the petitioner’s argument that violence against women has an intimate relationship with advertisements objectifying women.

In the case of Prakash Mani Sharma (2067), the Supreme Court issued another order of mandamus to the government to enact legislation guaranteeing a safe and healthy work environment for women employed in dance bars and massage parlors, and interim directives to regulate these businesses to protect women from sexual harassment. 65 Then, in Mira Dhungana (2069), the Court struck down section 15(6) of the Human Traffic and Transportation Act 2007, which criminalizes the non-cooperation of human trafficking victims—mostly women—in proceedings against the traffickers. 66 This batch of cases illustrates the Supreme Court’s awareness of the importance of both women-friendly legal procedures and structures alongside contextual measures to guarantee women’s safety also by changing the way in which women are portrayed, for instance, in advertisements.

3.4. Intersectional claims: Immigration and citizenship

Gender equality claims in the areas of immigration and citizenship law pertain to the fact that Nepali women have fewer legal rights than Nepali men in passing their entitlements to residency and citizenship to their children and foreign spouses. These claims are of an intersectional nature because a disproportionate number of Madhesi women in the Terai region are affected by these arrangements due to the frequency of cross-border marriages with Indian men in those areas. Significantly, this was also the reason for the inclusion of such discriminatory provisions in the 1990 Constitution and the relevant legislation. 67 In these types of cases, the petitioners are often individuals directly affected by the legal regime, and the remedies sought usually combine an order of mandamus to obtain the necessary documents (citizenship documents or visas) with an ultra vires declaration of the impugned provision. It must be noted from the outset that while the Supreme Court has progressively adopted an interpretation of the right to equality aimed at securing equal rights for Nepali women in these areas of law, the “success” of the petitioners in Court has not been matched by executive and legislative compliance with the many court orders. A 2013 study conducted by the Forum for Women, Law and Development showed that as of July 2011, 23.65 percent of Nepal’s total population age 16 or above (that is, over 4.3 million people) lacked citizenship certificates. 68

With regard to immigration law, in the early case of Benjamin Peters , the Supreme Court dismissed on procedural grounds the petition asking the Court to strike down rule 14(3) of the Regulations Relating to Foreigners 1975 that provided for a shorter validity of spousal visa for the foreign husband of a Nepali woman than the foreign wife of a Nepali man. 69 A year later the same legal issue presented itself to the Supreme Court in the Mira Gurung case; the Court struck down the rule on the grounds that it discriminated against Nepali women married to a foreign man and ordered the government to make the necessary amendments to the legislation to secure gender equality in this area of law. 70 Similarly, in the case of Punyawati Pathak the Supreme Court declared ultra vires the provision of the Nepal Immigration Act requiring the consent of the male guardian for a Nepali woman to acquire her passport. 71 In Mira Dhungana (2068) instead, the Supreme Court dismissed the petition asking the Court to invalidate section 4 of Schedule 9 of the Immigration Rules prescribing higher visa fees for a foreign husband than for foreign wives of Nepali citizens on the grounds that it was a matter of policy for the executive. 72

With regard to citizenship, the Supreme Court has decided a long string of cases pertaining to the gender-based discrimination in this area of law and consistently decided in favor of equal treatment between men and women. However, Nepal’s citizenship framework has yet to be revised to comply with the many Supreme Court’s orders and remains in breach of the country’s international legal obligation. This area of law represents the biggest failure of the women’s movement in Nepal, notwithstanding the numerous successes in litigation. This outcome can be explained only by the intersectional nature of these claims between the demands of non-national groups (women) and potentially national groups (Madhesis). In fact, inside the courtroom the claims have been treated purely as gender-based discrimination claims, but the litigation has never touched upon the political reasons behind the discriminatory nature of Nepal’s citizenship framework.

The restrictions on Nepali women’s ability to pass on citizenship has been historically linked to the issue of Madhesi regionalism, which is complicated by the open border with India. These restrictions have been engineered with the idea of insulating the Nepali nation from India. The aim has been to reduce cross-border marriages and prevent Indian men marrying Nepali women and their offspring from acquiring Nepali citizenship. 73 In fact, due to the sensitive political implications of the issue petitioners have not raised intersectional arguments in their pleadings. Conversely, the Supreme Court never directed the government to reform the citizenship framework by using gender-neutral language. Politicians have long justified these discriminatory provisions on the basis of the notion of kanyādān —yet again constructing the identity of women and their legal rights on the basis of their familial relationship with men.

The Chandra Kanta Gyawali case was an early unsuccessful attempt to challenge the discriminatory citizenship provisions under the Nepal Citizenship Act and Part 2 of the 1990 Constitution through which the matrilineal acquisition of Nepali citizenship can only lead to naturalized citizenship and not citizenship by descent. 74 Instead, in the case of Achyut Kharel (2061), the Supreme Court secured citizenship rights to the children of Nepali women with an unknown father under the right to equality to prevent the issue of statelessness from arising. 75 In Tek Tamrakar , the Supreme Court issued an order of mandamus ordering the government to register the births and provide citizenship documents to the children of single mothers in the Badi community—a dalit social group in mid-western Nepal frequently involved in sex trade. 76 The Court held that the constitutional right to equality affords special protection to backward classes and ordered the government to improve the living conditions of this community, but it did not invalidate the provision of the Children Act 1991 requiring the naming of the father to register a child’s birth.

In the post-2007 citizenship cases, the Supreme Court adopted a more activist stance with regard to women’s citizenship rights. In the case of Nakkali Maharjan , the Court ordered the Kirtipur Municipality to issue a citizenship recommendation letter to the petitioner without discriminating on the basis of gender and marital status. 77 In Ranjit Thapa the Supreme Court held that an individual is entitled to choose whether to acquire citizenship via the residence address of the father or the mother. 78 In the landmark Sabina Damai decision, the Court ordered the Dolakha District Administration Office to issue the citizenship documents to the petitioner on the basis of her mother’s Nepali citizenship regardless of the fact that the identity of the father was unknown, and the Ministry of Home Affairs to issue a circular to all district administration offices to comply with the Court’s ruling. 79 A string of cases ensued in which the Supreme Court issued order after order to the government to implement the Court’s decisions at executive level and introduce necessary legislative reforms, 80 but the implementation of the decisions and the reform of the system continue to elude campaigners. In fact, the new 2015 constitution reintroduced a section on citizenship discriminating against women in passing their citizenship to their offspring. An amendment of these provisions using gender-neutral terms does not appear to be on the horizon, even if the Nepali government has been severely criticized in both domestic and international fora for the enduring gender-based discrimination in matters of citizenship, for instance, at the United Nations’ Universal Periodic Review in November 2015.

The analysis of Nepal’s gender equality litigation between 1990 and 2015 reveals the Supreme Court’s pivotal role as a public forum to engage issues of gender equality and define its meaning in constitutional terms. Thus, the Court has contributed enormously to the advancement of women’s rights by progressively chipping away at gender-based discriminatory laws, policies, and practices in an incremental fashion. A nuanced account of Nepal’s gender equality jurisprudence over twenty-five years illuminates key trends in this area—and the challenges and opportunities ahead for constitutional litigation on women’s rights. The article identifies two main ways in which the Supreme Court has advanced women’s rights in Nepal.

First, with regard to the outcome of litigation narrowly understood as the verdict, Nepal’s Supreme Court has consistently found for the petitioners demanding gender equality since the beginning of constitutional litigation in this area. With regard to the justification offered by the Court in its decisions on gender equality, the picture is more complex. A clear shift can be identified from an earlier, more deferential and formalistic approach to women’s rights to a bolder, more assertive response to issues of gender-based discrimination. In the early case law, the Supreme Court adopted a formal understanding of gender equality and often provided legalistic, conservative, and inward-looking forms of justification for its decisions. While the Court sought to ensure that Nepali women were protected and treated with a modicum of fairness, it resisted radical challenges to the status quo. Instead, in later case law, the Court veered toward a more substantive notion of gender equality at the intersection of recognition and redistributive justice. Judges started to justify their decisions in progressive terms by referring to international law and foreign precedents seeking to bring the legal treatment of Nepali women in line with global norms. Significantly, they also sought to reframe the position of Nepali women within the coordinates of national history and local culture in which gender relations are embedded, to avoid a sterile dichotomic opposition between autochthonous and “foreign” values.

Second, the Supreme Court after 1990 sought to consolidate its institutional position while retaining a dialogue with the other branches of government and civil society. This is most evident in the type of remedies granted by the Court and the nature of its engagement with the executive and legislature. In earlier case law, the Supreme Court did not often exercise its power to invalidate primary legislation but ordered the government to revise the existing legal framework and introduce the necessary reforms. In the case law decided after the crucial 2002 and 2006 amendments to the Muluki Ain , the Court became bolder and began to invalidate primary legislation in a number of cases. At the same time, the Court sought to continue its institutional dialogue with the other branches and not antagonize them. This approach has been fruitful as a number of legislative and policy reforms were actualized following decisions of the Supreme Court. Interestingly, the Court sought to maintain an open line of communication also with civil society by ordering the formation of expert commissions to report back to the Court itself and to the other branches of government, by relying on the briefs of an amicus curiae, and inviting oral testimonies of both expert witnesses and individuals affected. This led to a greater visibility of the Court, and a growing interest by civil society and the media in its work. As a result, Nepal’s Supreme Court succeeded in acting as a catalyst for debates on the meaning and remit of gender equality in the country.

In this respect, an important factor external to the Supreme Court is crucial to explain the success and impact of constitutional litigation in advancing women’s rights in the context of Nepal: the nature of the petitioners in gender equality litigation. Activist lawyers working through NGOs initiated most of the cases analyzed in this article—many in the form of abstract review of legislation. As such, these activist lawyers deployed a systematic, incrementalist strategy in litigation. Initially they sought to petition the Supreme Court to remove discriminatory legal provisions, issue directives to the government and the legislature with regard to introducing new protections, and declare a growing number of forms of gender-based discrimination unlawful. They aimed at building a solid body of pro-women case law, but litigation was only one element of a broader, concerted strategy. Their ultimate goal was a comprehensive gender-sensitive overhaul of Nepal’s legal system. This included lobbying the executive and legislative branches to introduce appropriate law and policy reforms and devising awareness campaigns alongside other development-oriented activities. It is also because of this network of civil society organizations focused on “cause lawyering” that the impact of gender equality litigation in Nepal has been so tangible, comprehensive, and pervasive.

Over the years Nepal’s Supreme Court has sought to impose a growing number of obligations on the executive and the legislature to secure a more level playing field for women. However, the multidimensional nature of gender as a form social classification explains the limitations of the successes of the Supreme Court in advancing women’s rights. A combination of discrimination on the basis of both class and identity (understood in intersectional terms) has limited the success of gender equality litigation with respect to access to justice, the outcome, and the impact of litigation. One of the areas where further improvement is needed remains access to justice. Poor women—and especially those from historically marginalized communities—have not succeeded in bringing their claims to Court due to a combined lack of material resources, cultural capital, and support structures.

With regard to outcome, the issues of justification given by the Supreme Court and implementation of judicial decisions require further qualification. In intersectional claims combining gender-based grievances with those of potentially national groups (for example, citizenship), the Supreme Court has sidestepped entirely the intersectional nature of the claim in justifying its decisions. Similarly, implementation of the many Court decisions on citizenship has been weak and ineffective. In cases involving the position of women within the family, the Supreme Court has been reluctant to challenge the traditional construction of women’s identities as dependent on their familial relationship and offered very weak, legalistic forms of justification revolving around fairness of treatment rather than substantive equality, for instance, in property rights cases. These claims have challenged traditional gender roles within the family and demanded forms of redistributive justice together with the removal of discriminatory barriers. The Supreme Court both in citizenship and property rights cases, stopped short of the most obvious solution, that is, recommending the use of gender-neutral language when dealing with issues of gendered-based discrimination. Thus, these rights remain contingent upon women’s familial relationship to men. It is unsurprising that a report by leading anthropologist Lynn Bennett has identified the home—and the web of family relations that accompany it—as the key site of disempowerment for Nepali women. 81 The notable exception is represented by the case law on reproductive rights, in which the Court successfully combined the trope of protecting women with empowerment.

Finally, the Supreme Court’s jurisprudence on gender equality has played an important role in the construction of Nepal’s constitutional identity through progressive forms of justification, most obvious in cases about gender-based violence, reproductive rights, and gender equality in the workplace, and more conservative ones, notably in matters pertaining to the position of women within the family. By combining traditional autochthonous values and global norms, Nepal’s constitutional discourse on gender equality continues to shape what can be thought and said about women and their place in Nepali society. In particular, the Court has produced a discreet, context-specific classification of what constitutes unlawful discriminatory conduct and lawful inequalities that Nepali constitutionalism must reject or can tolerate. This process has broader political implications as it offers key insights into the way in which the Supreme Court imagines, construes, and shapes the identity of the Nepali polity—and its internal “hierarchies of belonging.” While embracing women’s autonomy and individual identity in growing areas of law, the Court shied away from challenging gendered roles within the family and the traditional social order that they underpin. It is to be hoped that the Supreme Court will continue to contribute to the recognition and empowerment of all Nepali women as equal citizens so that they will be able to exercise full participatory parity within the family and in society at large—regardless of their gender, class, and intersectional identities.

Thanks to Bal Ram Raut for the invaluable research assistance, to the anonymous peer reviewers, Jamal Greene, Madhav Khosla, Sebastian Payne, Silvia Suteu, and David Vitale for their helpful comments, and to the British Academy for funding part of this research under the Postdoctoral Fellowship Scheme.

Tsvi Kahana & Rachel Stephenson, The Promise of Democratic Constitutionalism , in Feminist Constitutionalism 244 (Beverley Baines, Daphne Barak-Erez, & Tsvi Kahana eds., 2012).

Nancy Fraser & Axel Honneth, Redistribution or Recognition ? 19 (2003).

Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics , 1(8) University of Chicago Legal Forum 139 (1989).

DFID/World Bank, Unequal Citizens: Gender, Caste and Ethnic Exclusion in Nepal ( 2006).

The 2011 Census illustrates the diverse composition of Nepal’s population with 125 caste and ethnic groups, of which only the largest six are above 5 percent of the total population and are not territorially concentrated. The two biggest groups are the Chetri, i.e., Kshatriyas of local Khas origins (16.6 percent), and Bahun, i.e., Hill Brahmins, (12.2 percent); together they constitute the Parbatiya group, to which Nepal’s royal family and elites belong. About 81 percent of the population is Hindu. Nepali remains the lingua franca of the majority of the population, but only 44.6 percent named it as their mother tongue. In terms of historically marginalized groups, dalits (i.e., “former untouchables”) form about 14 percent of Nepal’s population. The sixty-three groups classified under the umbrella term “Adivasi Janajati” (i.e., indigenous people), who can be described as ethno-linguistic groups that do not use Nepali as their mother tongue, account for 36 percent of the total population. Madhesi groups (i.e., non-Pahari “Terai plain dwellers,” often erroneously described as “of Indian origins”) constitute slightly less than 20 percent of the total population. Available at http://cbs.gov.np/image/data/Population/Major%20Highlights/Major-Finding.pdf .

It is difficult to provide statistical data for Supreme Court litigation in Nepal. Only a small portion of the decisions are reported (either in the Nepal Law Journal or the Supreme Court Bulletin ). While unreported decisions retain the status of binding precedent, they are sometimes made available by one of the parties in the case via social media, but this is ad hoc and unsystematic. Moreover, copies of the law reports have been digitized only from 2008 onward, and there is not to this day a publicly available searchable electronic database of Supreme Court’s decisions, even in Nepali. The only statistical data is available by application to the Supreme Court.

Michel Rosenfeld, Constitutionalism, Identity, Difference, and Legitimacy 8 (1994); Robert Dahl, On Political Equality 6 (2006); Anne Phillips, Which Equalities Matter? 2, 3 (1999).

Kate O’Regan & Madhav Khosla, Equality in Asia , in Comparative Constitutionalism in Asia 278 (Rosalind Dixon & Tom Ginsburg eds., 2014).

Hanna Lerner, Constitution-Writing in Deeply Divided Societies: The Incrementalist Approach , 16 Nations & Nationalism 68, 69 (2010).

Mara Malagodi, Constitutional Nationalism and Legal Exclusion (2013).

Mara Malagodi, Constitutional Nationalism and the Quest for Legal Inclusion in Nepal , in Rights in Divided Societies 169 (Colin Harvey & Alex Schwartz eds., 2013).

Helen Irving, Gender and the Constitution (2008).

Tarunabh Khaitan, A Theory of Discrimination Law 173–176 (2015).

Kumud Rana, Contesting Bodies in the Constitutional Debate About Citizenship in Nepal , in Bodies of Resistance 95 (Wendy Harcourt ed., 2017).

Nira Yuval-Davis & Floya Anthias, Woman-Nation-State (1989).

Beverley Baines & Ruth Rubio-Marín, Introduction: Toward a Feminist Constitutional Agenda , in The Gender of Constitutional Jurisprudence 10 (Beverley Baines & Ruth Rubio-Marín eds., 2005).

Const. of Kingdom of Nepal 1990, Part 11 The Judiciary, arts. 84–96.

Mark Tushnet, Weak Courts, Strong Rights 15 (2007).

Radheshyam Adhikari v. Council of Ministers, 2048, 33(12) NKP 810 (1991).

Bhimsen Pokharel (2012). Nepal Supreme Court Rules 2049 (1993), Chapter 6, Rules 31–42.

S. Dahal, Access Denied , Kathmandu Post , May 16, 2013, available at http://kathmandupost.ekantipur.com/printedition/news/2013-05-15/access-denied.html .

National Judicial Academy, Gender Equality and Social Inclusion Analysis of the Nepali Judiciary 50–52 (2013).

UNDP Nepal, Strengthening the Rule of Law and Rights Protection System in Nepal 12 (2017 ).

Mira Dhungana v. Ministry of Law and Justice, 2052, 37(6) NKP 462 (1995).

Sapana Pradhan Malla v. Ministry of Law and Justice, 2053, 38(2) NKP 105 (1996).

Canda Bajracarya v. Secretariat of Parliament, 2053, 38(7) NKP 537 (1996).

For an overview of the 11th Amendment, see http://archive.li/o5K6q .

Mira Dhungana v. Office of the Prime Minister, 2061, 46(4) NKP 377 (2004).

Sapana Pradhan Malla v. Ministry of Law and Justice, 2061, 46(4) NKP 387 (2004).

Prakash Mani Sharma v. Office of the Prime Minister, 2062, 47(8) NKP 931 (2005).

Lily Thapa v. Office of the Prime Minister, 2062, 47(9) NKP 1054 (2005).

Mira Dhungana v. Ministry of Law and Justice, 2063a, 48(8) NKP 979 (2006).

See, for instance , FWLD v. Office of the Prime Minister, 2069, 56(10) NKP 1534 (2012).

International Organization for Migration, Barriers to Women’s Land and Property Access and Ownership in Nepal ii (2016).

DFID/World Bank, supra note 4, at 24.

Sarala Rani Rauniyar v. Her Majesty’s Government of Nepal, 2050, 35(1) NKP 10 (1993).

Rina Bajracarya v. HMG Council of Ministers, 2057, 42(5) NKP 376 (2000).

Pradosh Chetri v. Office of the Prime Minister, 2061, 46(7) NKP 901 (2004).

Pro-Public v. Office of the Prime Minister, 2063, 48(1) NKP 1 (2006).

Mira Dhungana v. Office of the Prime Minister, 2064, 49(6) NKP 972 (2007).

Sapana Pradhan Malla v. Office of the Prime Minister, 2066, 51(7) NKP 1089 (2009).

Chandra Kanta Gyawali v. Office of the Prime Minister, 2061, 46(11) NKP 1418 (2004).

Mira Dhungana v. Office of the Prime Minister, 2063b, 48(1) NKP 6 (2006).

Sapana Pradhan Malla v. Office of the Prime Minister, 2063, 48(3) NKP 289 (2006).

Sapana Pradhan Malla v. Office of the Prime Minister, 2065, 50(8) NKP 917 (2008).

Mira Dhungana, v. Office of the Prime Minister, 2063c, 48(8) NKP 972 (2006).

Ram Pant Kharel v. Office of the Prime Minister (Writ N. 063-WS-0019 of year 2060). Decided in 2065 BS (2008).

Jyoti Lamsan Poudel v. Office of the Prime Minister, 2069, 54(9) NKP 1315 (2012).

Subekshya Karki, A Study on Dowry Related Violence in Nepal (2014), available at http://www.inseconline.org/pics/1409727203.pdf .

Sapana Pradhan Malla v. Office of the Prime Minister, 2062, 47(1) NKP 10 (2005).

Achyut Kharel v. Office of the Prime Minister (Writ N. 3352 of year 2061). Decided in 2061 BS (2004).

Prakash Mani Sharma v. Office of the Prime Minister (Writ N. 064-WS-0230 of year 2060). Decided in 2066 BS (2009).

Prakash Mani Sharma v. Office of the Prime Minister, 2065, 50(4) NKP 412 (2008); Jang Bahadur Singh v. Office of the Prime Minister, 2068, 53(6) NKP 986 (2011).

Laxmi Devi Dhikta v. Office of the Prime Minister, 2067, 52(9) NKP 1551 (2010).

Reshma Thapa v. Office of the Prime Minister, 2062, 47(2) NKP 205 (2005).

Dil Bahadur Bishwakarma v. Office of the Prime Minister (Writ N. 3303 of year 2061). Decided in 2062 BS (2005).

Tara Devi Poudel v. Cabinet Secretariat, NKP, 2058, 43(7/8) 375 (2001).

Kavita Pandey v. Government of Nepal, 2067, 52(7) NKP 1128 (2010).

Pro-Public v. Office of the Prime Minister, 2069, 54(10) NKP 1534 (2012).

Mira Dhungana v. Ministry of Law and Justice (Writ N. 55 of 2058). Decided in 2059 BS (2002).

Jit Kumari Pageni v. Office of the Prime Minister, 2065, 50(6) NKP 664 (2008).

Sapana Pradhan Malla v. Ministry of Law and Justice (Writ N. 56 of 2058). Decided in 2059 BS (2002).

Jyoti Poudel v. Office of the Prime Minister, 2067, 52(11) NKP 1903 (2010).

Raju Chapagai v. Office of the Prime Minister, 2065, 50(7) NKP 823 (2008).

Prakash Mani Sharma v. Office of the Prime Minister, 2067, 52(9) NKP 1480 (2010).

Mira Dhungana v. Ministry of Law and Justice (Writ N. 2068-WS-0046 of year 2068). Decided in 2069 BS (2012).

Mara Malagodi, Constitutional Nationalism and Legal Exclusion 164–168 (2013).

Forum for Women, Law and Development, Acquisition of Citizenship Certificate in Nepal 1 (2013).

Benjamin Peters v. Home Ministry, 2048, 33(11) NKP 749 (1992).

Mira Gurung v. Department of Immigration, 2051, 35(1) NKP 68 (1993).

Punyawati Pathak and Mana Basnet Karki v. Ministry of Foreign Affairs, 2062, 47(8) NKP 1025 (2005).

Mira Dhungana v. Office of the Prime Minister, 2068, 53(11) NKP 8708 (2011).

Surabhi Pudasaini, Writing Citizenship , 22(1) Stud. Nepali Hist. & Soc’y (SINHAS) 85 (2017).

Chandra Kanta Gyawali v. Office of the Prime Minister, 2058, 43(11) NKP 615 (2001).

Achyut Kharel v. Office of the Prime Minister, 2062, 47(4) NKP 512 (2005).

Tek Tamrakar v. Government of Nepal, 2062, 47(6) NKP 680 (2005).

Nakkali Maharjan v. Office of the Prime Minister, 2065, 50(11) NKP 1340 (2008).

Ranjit Thapa v. Office of the Prime Minister, NKP 2066 (2009), Vol. 51, N. 6, p. 1014.

Sabina Damai v. Government of Nepal, 2068, 53(2) NKP 247 (2011).

Nina Tamang v. Government of Nepal, (2012); Sita Devi Adhikari v. Government of Nepal (2013); Bhola Nagarkoti v. Government of Nepal (2014); Dipti Gurung v. Government of Nepal (2015), available at http://fwld.org/wp-content/uploads/2016/12/Legal-Analysis-of-Citizenship-Law-of-Nepal-Citizenship-Report-English.pdf .

DFID/World Bank, supra note 4, at 13.

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Gender equality in Nepal: at a crossroads of theory and practice

Disclaimer : Views expressed in this commentary are those of the staff member. This commentary is independent of specific national or political interests. Views expressed do not necessarily represent the institutional position of International IDEA, its Board of Advisers or its Council of Member States.

Balancing power relations, reducing disparities, ensuring equal rights, opportunities and respect for all individuals regardless of their sex or social identity is a must to bind a nation together and establish the foundation for social development and nation building.

Nepali women, as more than 50 per cent of the total population, are still lagging in terms of meaningful participation and representation in political, social, economic and educational aspects of life. The 33 per cent quota system for female candidates introduced by the Constitution of Nepal has indeed managed to increase their political representation, but it is not far from criticism, as it is seen as having favoured quantity over quality.

The voice of the people

International IDEA had the opportunity to recently conduct 7 workshops on the provincial level focusing on how to assess a constitution from a women’s equality perspective. During the workshops, Sarswati Aryal (Coordinator, Inter-Party Women Alliance, Nuwakot, Province 3) expressed her opinion on the current constitutional conflicts between theory and practice:

“Allocating 33  per cent​ of seats for women should be mandatory for both the first-past-the-post (FPTP) system and for the proportional representation system. During the elections, all political parties nominated female candidates only for the proportional seats. Only a few female candidates were elected through the FPTP system. This again helped place men in decision-making positions and places.”

Aryal argues that female candidates are selected for the sake of participation, to fulfil the 33 per cent quota system rather than to empower them. Seats are being filled in the personal interest of top leaders, rather than capacity and contribution to the party.

“ Although the Constitution has ensured equal pay for equal work, women usually are paid less than their male colleagues are. The situation is worse in the private sector and in informal sectors, such as construction, garments, cement factories, brick kilns etc. This is a serious human rights violation. Proper law enforcement and regular monitoring from the concerned authorities is necessary.”

- Nitu Gartaula, Deputy Director, National Human Rights Commission, Gandaki Province, Kaski, Province 4. 

The experience shows that ensuring the provisions of equal rights in a constitution is important, but at the same time, proper implementation of those provisions is equally important to balance the theoretical and practical gap of gender development.

Contextual Analysis

Recent local elections saw 753 Deputy Mayors/Chairs from 6 metropolitan cities, 11 sub-metropolitan cities, 276 municipalities and 460 rural municipalities elected. The fact that 700 of these were female is a major achievement. If you look at the details though, out of 753, only 18 of the elected Mayors/chairs were female. The question is, why only 18 female Mayors/Chairs out of 753 seats? Why must women candidates be limited to deputy positions?

Why there are only 3 female ministers out of 22 at the federal level? Why are there no females leading political parties? Why there isn’t a single female Chief Minister in any of the provinces? Is it because there are no capable women, or can other reasons explain this phenomenon?

Multiple factors are in play in this context: such as historically institutionalised gender discrimination, patriarchal mindset, socially constructed exclusion and practices and economic status. The Constitution of Nepal however, has guaranteed equal rights for every citizen and some special rights for women and disadvantaged groups. The truth is that formal equality is not enough, as women and disadvantaged groups are not on equal footing to utilise these formal opportunities.

Meeting point

Various formal and informal approaches should be applied to exercise equal rights and opportunities. This should include the effective implementation of the Constitution through the formation of proper laws with enforcement mechanisms. Differential treatment and positive discrimination, advocacy aimed at changing mindsets, beliefs norms and practices towards women, can help to practically rebalance the power.

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The long road to gender equality in Nepal

Richa bhattarai.

External Affairs Associate

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I.  Introduction

Ii.  motivation, iii.  data and methodology, iv.  findings, v.  conclusions, references *, gender discrimination in education expenditure in nepal: evidence from living standards surveys.

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Shaleen Khanal; Gender Discrimination in Education Expenditure in Nepal: Evidence from Living Standards Surveys. Asian Development Review 2018; 35 (1): 155–174. doi: https://doi.org/10.1162/adev_a_00109

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There is a significant amount of literature on the role of parental gender preferences in determining the level of education expenditure for children. In this study, I examine the effects of such preferences on parents’ education expenditure in Nepal. Using longitudinal data from three Nepal Living Standards Surveys, I apply several decomposition methods to determine the level of bias that parents display in spending on their children's education. I find that parents indeed spend more on boys than girls in both rural and urban areas in Nepal. I also find that this bias is reflected in the higher enrollment levels of boys than girls in private schools.

Nepal has made remarkable progress in achieving a degree of gender parity in the field of education. Net enrollment rates have achieved parity at all levels of schooling, reflecting the government's success in ensuring the equal participation of girls in schools. However, while improvements in enrollment rates are a positive first step, this does not imply gender parity in the education sector. Various forms of discrimination—such as the reproduction of discriminatory norms in the process of socialization and in the classroom (e.g., a curriculum that favors traditional gender roles), encouragement for continuing traditional course selection (Collins 2009 ), and at times outright discriminating behavior—have been observed in schools (Hickey and Stratton 2007 , Bandyopadhyay and Subhramaniam 2008 ). At the household level as well, girls are expected to spend more time on chores rather than on education (Mason and Khandker 1996 , Levison and Moe 1998 ); are more likely to drop out of school (Sabates et al. 2010 ); and are less likely to continue their education at higher levels. Another form of household discrimination, which forms the topic of this study, is differential treatment in education expenditure in which parents spend more on boys’ education than they do on girls’ education.

Gender parity is a basic precondition for a just and equitable society. Arguments for gender equality also go beyond reasons of justice and equality. Empowering women is crucial for the socioeconomic development of any country. Studies report that higher levels of education in women lead to higher economic growth (Coulombe and Tremblay 2006 ); reductions in child and infant mortality rates (Cochrane 1982 , LeVine 1987 ); and better outcomes for all children in the family (Schultz 1961 ; Alderman and King 1998 ; Strauss, Mwabu, and Beegle 2000 ). Yet, despite governments promoting the participation of women in schooling and education, societies continue to observe disparities in women's access to education and the labor force. The feminist movement attributes this phenomenon to (i) the existing sexual division of labor that assigns women to domestic tasks; and (ii) men's control over women's sexuality, which includes strict supervision of movements outside the home and limits on societal interactions (Stromquist 1992 ). Economic models explain that such disparities arise out of differential parental preferences (assuming parents to be rational economic agents) due to differences in children's cognitive endowment, birth order, and (more importantly) variations in expected returns on investment between boys and girls (Behrman, Pollak, and Taubman 1982 ; Lehmann, Nuevo-Chiquero, and Vidal-Fernandez 2012 ).

In Nepal, societal norms dictate that women after a certain age are married away. Additionally, patriarchy is pervasive in Nepal's legal and socioeconomic environments, a fact substantiated by the widespread inequality observed in legal outcomes (Nowack 2015 ); wealth (Bhadra and Shah 2007 ); employment opportunities (ADB 2010 , Bhadra and Shah 2007 ); and education (UNESCO 2015 ). The incentives for parents to pay for girls' education are lower compared with boys not only because women are likely to face unequal opportunities in the labor force, but also because boys are expected to look after their parents and the family estate when the parents grow old.

While much has been written on gender discrimination in education in Nepal, very little empirical work has been done to analyze the extent of the discrimination. This paper tries to fill that gap by examining the nature and extent of one form of discrimination—inequality in household expenditure—faced by women in the education sector by comparing expenditure on education for girls versus boys, and then decomposing the observed gap in expenditure into explained and unexplained components. The paper is organized as follows. Section II presents the motivation behind the research, including an identification of the research gap that this paper addresses. The methodology and the data set used in this study are described in section III . Section IV details the major results and the findings. Section V consists of conclusions and policy recommendations.

The right to an education is a fundamental human right. Yet, women in the developing world are underrepresented at all levels of education (see, for example, Annex 1 of the Global Campaign for Education 2012 ). While progress has been made globally in improving the net enrollment ratio at primary levels, a noticeable decline is observed in girls’ participation at higher levels of education (Global Campaign for Education 2012 ). Inequality is not only observed in terms of ability to participate in schooling, but also in terms of quality of schooling. 1 The participation of girls is also found to be lower in private schools compared with public schools in developing economies (Harma 2011 ; Maitra, Pal, and Sharma 2011 ; Woodhead, Frost, and James 2013 ; Sahoo 2014 ).

As was mentioned earlier, one of the reasons behind the ineffective inclusion of girls in educational opportunities is the unequal investment made by parents in their male and female children's education. The prevalence of unequal returns to education in terms of wages and work opportunities in the labor market implies that parents are likely to invest more in boys' education than in girls’ (Garg and Morduch 1998 as cited in Sahoo 2014 , Leclercq 2001 ). Results are further skewed in favor of boys if women are expected to leave their parents’ home after they get married while men are expected to remain at home to eventually take care of their elderly parents. 2 Various studies have found differential treatment resulting from parents' investment decisions. For example, Burgess and Zhuang ( 2000 ) and Gong, van Soest, and Zhang ( 2005 ) find significant bias in favor of boys in education expenditure in the People's Republic of China. Similarly, in India, Kingdon ( 2005 ) and Saha ( 2013 ) find evidence of differential education expenditure between boys and girls in certain states. Similar findings were presented in the cases of Pakistan (Aslam and Kingdon 2008 ), Paraguay (Masterson 2012 ), and Bangladesh (Shonchoy and Rabbani 2015 ).

Considering the cultural and socioeconomic similarities between many of the above-mentioned countries and Nepal, and the existence of widespread patriarchy in Nepal, we can expect to find significant levels of gender bias in education expenditure patterns among Nepalese households. Unequal access to and outcomes in education with respect to gender are characteristic features of the Nepalese education system. School enrollment has long skewed in favor of boys (World Bank 2014 ). More recently, there has been a drive to make education (along with other social services) equitable and inclusive. The Constitution of Nepal 2015 has made the right to an education an inalienable right for all (Government of Nepal 2015 ). Gender equality and social inclusion guidelines have been formulated across all government sectors to make policies, strategies, and outcomes gender sensitive. The Education for All initiative and the School Sector Reform Plan prioritize equal participation for girls at all levels of education (Ministry of Education and Sports 2003 ). As a consequence, net enrollment ratios have risen for all children and are now comparable for both boys and girls at primary and secondary schools (National Planning Commission 2013 ). Yet, the participation of boys in private education and higher education remains higher when compared with girls (Department of Education 2015 ). Therefore, while the gender gap in terms of school enrollment at primary and secondary levels has almost disappeared, instances of gender discrimination can still be observed among Nepalese households both in terms of education quality and expenditure. 3

Decomposing such discrimination can provide policy makers with valuable insights into understanding and minimizing the extent of such bias and incentivizing households to achieve better education outcomes for girls. However, studies on gender discrimination and education in Nepal are scarce. Most reports on discrimination typically analyze participation rates and do not consider other forms of discrimination (see, for example, Unterhalter 2006 , Herz 2006 , and Huxley 2009 ).

Similar patterns can be observed in academic studies. One of the earliest studies in the field incorporating historical data was conducted by Stash and Hannum ( 2001 ), who find evidence of a significant gender gap in primary school participation rates. Using data from the 1991 Nepal Fertility, Family Planning, and Health Survey, they find that the educational attainment of head of households and rural–urban households bore no effect on school participation rates for girls. Therefore, they conclude that traditional indicators of development had little impact on discriminatory educational outcomes. LeVine's ( 2006 ) ethnographic study of Nepal examines the determinants of school attendance of girls and the reasons behind their dropping out of school. The study finds that since the 1990s, profound socioeconomic transformations have led to a more equitable attitude of parents toward their children's education, although girls were still less likely to complete their education or attain higher education because of marriage. A recent study by Devkota and Upadhyay ( 2015 ) examines inequality in education outcomes owing to various household factors like income, sex, ethnicity, and location of the household and the school. They find that while men in Nepal were likely to attain a higher level of education, their advantage had significantly declined between 1996 and 2004.

Some studies have looked at the effects of migration on education outcomes in Nepal. Bontch-Osmolovski ( 2009 ) studies the role of migration in education and finds significant positive effects of parental migration on their children's enrollment in school. However, the author finds no significant difference, on average, of the effect of migration by the gender of the child, which is contrary to Nepal ( 2016 ), who finds higher levels of school enrollment, greater incidence of private schooling, and shorter working hours for boys in migrant households when compared with girls. Bansak and Chezum ( 2009 ) also find that remittances positively affect school attendance, with a greater positive impact among boys than girls.

The aforementioned studies rely primarily on enrollment and school participation rates as the basis of analysis of gender discrimination, assuming parental decisions only affect the participation of children at school and ignore other forms of discrimination between boys and girls already enrolled in schools. This discussion becomes even more pertinent given rising enrollment and participation rates for both boys and girls at the primary and secondary school levels. Considering the clear evidence of unequal expenditure in favor of boys’ education in comparable societies, there is a need to investigate whether this trend exists in Nepal as well. Vogel and Korinek ( 2012 ) were the first to evaluate the expenditure allocation decisions of households on education in Nepal. Their study examines how remittance income is allocated in terms of schooling expenditure for boys and girls within the same family. They find that households that receive substantial remittances tend to increase education spending for boys but not for girls. Therefore, more remittances do not necessarily result in increased investment in girls’ education. However, the study primarily limits itself to remittance-based households and does not take nonmigrating households into consideration.

This paper aims to build on the findings of Vogel and Korinek ( 2012 ) by looking at the education expenditure allocation decisions of Nepalese households. It focuses on the extent of discrimination practiced against girls in terms of expenditure patterns on education and examines the possible reasons behind such inequality. Using the Blinder–Oaxaca decomposition method (along with decomposition using quantile regressions), the study examines the extent of explained differences and unexplained differences (proxied as discrimination) in education expenditure for families across Nepal.

Data for the study comes from the three rounds of the Nepal Living Standards Survey (NLSS) conducted in 1995–1996, 2003–2004, and 2010–2011. 4 The surveys follow the methodology developed by the World Bank in its Living Standards Measurement Study and collect information from all over Nepal on wide-ranging variables including, among others, poverty; income, wealth, and expenditure sources; household composition; and migration. The latest survey collected data from 5,988 households (in addition to 1,032 households used for the panel sample) from 71 districts (499 primary sampling units) across Nepal over a 12-month period. For the study, I use samples from both rural and urban households from all three geographical regions surveyed in the study. Due to a lack of observations among students of higher studies and for schools under other systems of education, I have confined the samples for the regression analysis to include students until the 10th standard of their schooling and who have studied in either community schools or private schools. 5 To arrive at total education expenditure per student, I have calculated total school fees of individual children by adding the costs of uniforms, text books, transportation, private tuition, and other fees, and then deducting the monetary value of any scholarships. Fees are presented on a nominal basis and have not been converted to real terms. The sample for education expenditure per child was trimmed by the top 0.1% and the bottom 0.1% to remove potential outliers.

Two methods have been popularly used to disaggregate biases in education expenditure in popular research. The first methodology makes use of Engel Curves, which observes household-level expenditure data and analyzes the relationship between changes in household gender composition and patterns of expenditure. In the absence of individual-level data on expenditure patterns, this method can provide valuable insights into inferring the level of bias from the overall household expenditure data (Aslam and Kingdon 2008 ). However, the validity of this methodology has also been challenged (Kingdon 2005 ).

Where individual-level data are available, the use of decomposition provides far more useful results. First used by Blinder ( 1973 ) and Oaxaca ( 1973 ), this method decomposes the expenditure gap into an endowment gap and a coefficient gap. The endowment gap explains differences in expenditure based on differences in endowments and the coefficient gap is the discrimination coefficient (Madheswaran and Attewell 2007 ). While the Blinder–Oaxaca decomposition is popularly used to decompose bias in wage gaps in the labor market, the methodology is as effective in understanding the bias in education expenditure as well, and has been used in studies analyzing decomposition of education expenditure. Here, I use the Blinder–Oaxaca decomposition method to disaggregate bias in the expenditure gap that can be explained by differences of endowments and the unexplained gap.

Considering the possibility of differential effects of various control variables across the expenditure distribution, I also use the quantile decomposition methodology of Melly ( 2005 ) to evaluate levels of discrimination across various points in the distribution of the education expenditure. The methodology goes beyond the mean and decomposes differences in education expenditure between the two groups (girls and boys) at different quantiles of the variable of interest.

Analysis of the descriptive summary of the variables suggests the existence of a discrepancy in spending between boys and girls, with the total expenditure pattern showing that education expenditure on boys is slightly greater than that on girls (Table 1 ). While there is not much difference in the fees paid among various school categories, 7 in fact expenditure in private schools is higher in the case of girls, 8 the representation of boys in private schools is much higher than that of girls. 9 Worryingly, the overall difference in expenditure between boys and girls increased over the course of the three surveys. The mean of actual expenditure shows that while the difference in expenditure per student was only NRs3 in 1995–1996, it had risen to NRs886 by 2010–2011. Since mean expenditure in private schools is almost 8 times the mean expenditure in government schools, the faster rate of private school enrollment among boys when compared with girls over the last 15 years has proved to be the major source of expenditure bias and discrimination against girls.

Note: NLSS I does not contain the gurukul–madrasa–gumba category but instead includes a category for community schools. Similarly, NLSS II only categorizes government schools, private schools, technical schools, and other schools.

Source: Author's calculation based on Nepal Living Standards Surveys.

The rural–urban classification of enrollment and expenditure echoes the findings of the national aggregate (Tables 2 and 3 ). While in absolute terms the amount of expenditure on education (for both girls and boys) is higher in urban areas, the share of girls' fees to boys' fees is significantly lower in rural areas (0.76) than in urban areas (0.93), suggesting a higher degree of discrimination among rural populations. 10 However, over time while the inequality in terms of expenditure has remained fairly stable in rural areas, there has been a marginal rise in expenditure on boys in urban centers (with the share of girls’ fees to boys’ fees dropping from 0.99 to 0.93). This trend is noticeable in rising gaps across the years in expenditure levels in both private and public schools in addition to a faster rate of growth in private school participation for boys (from 34% to 61%) compared with girls (from 32% to 51%). In rural areas, rising gaps in expenditure in public schools were observed over time, although surprisingly the average expenditure gap in private schools became negative. However, this negative expenditure gap is offset by a disparity in private school participation growth rates with the enrollment of boys in private schools increasing from 4% to 18% compared with the rate of girls increasing from 2% to 11%. 11

a The poverty line has been drawn based on nutritional requirements included in the NLSS.

Source: Author's compilation.

The first set of regressions were simple OLS models with gender as a dependent variable (Table 5 ). The coefficient of the major variable of interest (female) was significant with the semi-elasticity of fees at between –0.098 and –0.202, indicating lower levels of education expenditure for girls. Other control variables showed the expected outcomes. The semi-elasticity of total family income was positive and significant, but the level of influence on total education expenditure was very low. This perhaps is indicative of the poor quality of income data collected in the survey since data on income are notoriously unreliable (see, for example, Deaton 1997 , 29–31). As expected, poverty has a strong negative influence on total education expenditure, with poor families expected to spend up to 50% less on education expenditure than nonpoor families. Expenditure fell as household size increased and rose with the educational attainment of parents. Similarly, the grade of students and type of school had the expected strong and positive impact on education expenditure. Interestingly, regressions also showed that members of the upper caste were more likely to spend more on education than people from other ethnicities. 12

Note: *** , ** , and * denote significance at the 1%, 5%, and 10% level, respectively. See Table 4 for a description of the variables.

Source: Author's calculations based on NLSS Surveys.

Gender-wise classification of the OLS regression also provided interesting insights (Table 6 ). For variables like poverty, grade, and school types, the coefficients were comparable for boys and girls, while other variables impacted the two cohorts unequally. The impact of the size of the household was found to be relatively insignificant for boys but was highly significant and negative for girls, suggesting that a reduction in education expenditure per child due to an increase in household size primarily impacts girls. Therefore, a focus on family planning measures would lead to increased education opportunities for girls. 13 The importance of the mother's education was also reflected unequally. A woman's level of education is likely to play a more important role in a daughter's education compared with a son's; that is, the semi-elasticity of a mother's education on education expenditure is higher for girls than boys. 14 Distance from school had a larger negative impact on girls than boys, suggesting proximity to school is an important factor contributing to a better education for children. 15

Source: Author's calculation based on NLSS Surveys.

To differentiate the roles of endowments and discrimination in explaining the differences in education expenditure between boys and girls, I conducted a Blinder–Oaxaca decomposition analysis on the same observations (Table 7 ). Results from NLSS II show that in log terms, expenditure on boys was 0.098 higher than on girls, of which only about 9% could be explained by differences in the control variables and about 90% could be attributed to discrimination. Similarly, results from NLSS III show that expenditure on girls is lower than expenditure on boys by around NRs0.264 per child in log terms. Only about 8% of this gap can be explained via differences in household characteristics and the remaining 92% can be attributed to discrimination.

Note: *** , ** , and * denote significance at the 1%, 5%, and 10% level, respectively.

Results from the Ñopo decomposition also display an incidence of discrimination, although the extent of discrimination appears to be much smaller (Table 8 ). This technique shows that in 2010–2011, almost 60% of the expenditure gap was due to unexplained factors (discrimination). The results were more dramatic in 1995–1996 and 2003–2004, when in both cases the endowment effects of men and women constituted more than 100% of the expenditure gap. Therefore, if boys and girls were to have the same distribution across the controlled variables, the expenditure gap would be even higher, suggesting that, given prevailing conditions, socioeconomic status and other factors are more favorable in households incurring girls’ expenditure compared to boys’. The Blinder–Oaxaca and Ñopo methodologies both demonstrate the existence of widespread gender discrimination in household education expenditure, albeit to different degrees.

The results of the quantile decomposition reinforce the findings of the Blinder–Oaxaca decomposition method by using four quantiles (20th, 40th, 60th, and 80th percentiles) of education expenditure (see Table 9 ). While in NLSS I and II, there are significant differences in expenditure, large differences are observed in NLSS III. Among all four quantiles, education expenditure on girls was lower and significant in comparison with boys. Differences in expenditure were found to be the largest among the highest and the lowest spenders, and smallest among the 60th percentile. The ratio of unexplained to total differences fell among the higher quintiles, with the largest share of unexplained differences found in the poorest population segments. 16 The regressions suggest that, despite controlling for factors such as school enrollment (which already displays a significant source of discrimination in favor of boys), parents still choose to spend more on boys’ education than on girls’ education, which is clearly indicative of the differential treatment of boys and girls in Nepalese households. Worryingly, this phenomenon is new and coincides with rising average costs of education in Nepal.

Discrimination in school participation has been widely reported in the literature as a major source of gender inequality in Nepal. Even with improving participation rates for girls at all grade levels, the inequality persists. This study has explored discrimination among school-going boys and girls by analyzing the expenditure behavior of their parents and found that boys are better represented in private schools and girls are better represented in public schools, which stands as the most important form of discrimination. This phenomenon is more pronounced in rural Nepal, although a noticeable difference in participation is observed in urban areas as well.

Through simple OLS regressions, the effects of various control variables on total education expenditure across two genders were investigated. The data substantiate the findings of existing literature, including Vogel and Korinek ( 2012 ), that parental expenditure patterns in education are discriminatory. My analysis finds that even after controlling for school type, parents spend as much as 20% less on girls compared with boys. The data show that differences in expenditure comprise unequal spending on private tuition, textbooks and supplies, and other education-related expenditure. The paper also found that while the mother's education is an important equalizer, household size and distance to the school disproportionately affect household expenditure on a girl's education.

The Blinder–Oaxaca decomposition method, the Ñopo decomposition method, and a decomposition based on quantile regressions were used to further investigate the level of gender discrimination in education expenditure. All three of these methods revealed a high level of discrimination in education expenditure in favor of boys among households in Nepal. At times, more than 60% of the difference in education expenditure between genders could be explained by such bias. Findings from the quantile decomposition show that discrimination has risen over time and that households in the lowest and highest quintiles of income were the ones most likely to discriminate between boys and girls. The latter result is counterintuitive and therefore should be a matter of further research. Another area for further research could be the impact of such differential treatment on the performance of children at schools.

The study finds sufficient evidence to conclude that discrimination in education expenditure is prevalent among Nepalese households. It also suggests that such discrimination might be on the rise. Therefore, it is imperative for the government to improve the quality of education at public schools to not only provide better quality education for girls, but also to encourage parents to review the decision-making processes in which they are more likely to send boys than girls to private schools. I also find that educating parents (especially mothers) and improving access to schools can potentially reduce unequal expenditure, albeit to a small extent. To the extent that unexplained differences (discrimination) still account for the largest share of differences in education expenditure, I conclude that parental choices are still largely governed by a patriarchal mindset within Nepalese society, even among families at the highest income levels. Therefore, the medium-term approach should be accompanied by a longer-term strategy of changing the perception of women's roles in Nepalese society so that household investment decisions are not biased against girls.

Discrimination against girls is also pervasive in a school environment. However, the focus of analysis in this study concerns parental expenditure choices that are biased in favor of boys.

In the Indian subcontinent, men are expected to live with their parents and look after them in their old age, while women are expected to live with their husbands. This practice contributes significantly to the unequal treatment of women and girls in terms of human capital development, marriage, and other critical life decisions including inheritance.

Private schools are generally considered to provide higher quality education in Nepal than public schools. They are more expensive to attend, spend more on children's education per student, have lower rates of teacher absenteeism, have better school management systems, and exercise more stringent grade promotion systems. As a consequence, private schools produce better results in School Leaving Certificate exams. In 2012, the success rate of private school students taking School Leaving Certificate exams was 93.1% compared with only 28.2% for public school students (Sharma 2012 ). Parents prefer private schools provided they can afford them. Therefore, the higher rate of participation of boys in private schools is indicative of discriminatory expenditure decisions at the household level.

Henceforth, NLSS I, NLSS II, and NLSS III will imply surveys conducted in 1995–1996, 2003–2004, and 2010–2011, respectively.

The education system in Nepal is classified into primary (1st–5th grade), lower secondary (6th–8th grade), secondary (9th–10th grade), higher secondary (11th–12th grade), and tertiary levels. Classification is made based on national level examinations and students are required to attend. All students must clear the School Leaving Certificate examinations in 10th grade to qualify for higher-level studies in which students can choose boards and areas of interest. School Leaving Certificate examinations are traditionally considered the entry gate for higher education in Nepal. The government has prioritized the elimination of gender disparity in education through the secondary level under the Education for All Initiative (Ministry of Education and Sports 2003 ). The NLSS classifies primary and secondary schools into four categories: (i) community or government-owned schools, (ii) institutional or private schools, (iii) technical schools, and (iv) religious schools. As can be observed from Table 1 , the share of students studying in the latter two categories is extremely small.

For the purpose of this study, Brahmin (hills and terai) and Chettris (hills and terai) are considered to be members of the upper castes.

Since the proportion of schools other than government schools and private schools is less than 2%, the focus in the remainder of this paper will be on community (public) and institutional (private) schools. Policy documents, including the Education for All Initiative and the annual Flash Report of the Department of Education, also focus on these two school structures. Therefore, leaving out religious schools and vocational schools will not detract from the analytical discussion (Ministry of Sports and Education 2003 , Department of Education 2015 ).

The declassification of expenditure, which is not shown in Table 1 , reveals that parents spend more for girls’ transportation and other costs compared with boys’ in private schools, leading to higher expenditure per student for girls among private schools. It is not clear why this is the case. An examination of school distances and modes of transportation do not provide an answer.

See footnote 3.

After accounting for all categories of schools, differences in expenditure in rural areas could be observed in terms of textbook and supplies, private tuition fees, and other fees not described in the NLSS. This suggests corrective measures require not only making schools more attractive for girls but a more thorough approach of changing parental mindsets by discouraging patriarchy and promoting equality of girls at the household level.

Inequality in private school enrollment extends far beyond gender. Spatially, private schools constitute only 1% and 20% of all secondary schools in mountainous areas of the far-western and mid-western regions in Nepal, respectively. Similarly, enrollment of other marginalized groups such as Dalits, ethnic minorities, and the disabled—is also found to be disproportionately low in private schools (Department of Education 2015 ). Differences in rural–urban private school enrollment rates can be observed in Tables 2 and 3 .

This discrepancy is explained both by differences in school preferences and expenditure categories. Not only were upper caste households more likely to send their children to private schools (22% private school enrollment for households from other ethnicities compared to 28% for members of the upper caste), but they also were more likely to spend on other educational expenditure and tuition fees. The cultural reasons behind these differences are beyond the purview of this study. However, basic analysis reveals that parents from the upper caste earn more than everyone else and are more likely to be educated than counterparts from other ethnicities.

The average household size in the sample was 5.94 persons, which provides sufficient space for family planning interventions.

The reasons behind this phenomenon are not clear but evidence suggests that mothers prefer allocating educational resources to daughters and fathers to sons (Glick and Sahn 2000 ). Education empowers women and increases their bargaining power in the family, thus allowing them to spend more resources on girls. This finding is supported by additional evidence from Africa and Asia (King and Lillard 1987 , Lillard and Willis 1992 , Tansel 1997 ).

The distance needed to travel to attend school is an important impediment to educating girls. In developing societies, girls’ safety is a crucial consideration. The United Nations Girls’ Education Initiative ( 2014 ) has made reducing the distance to the nearest school an important component of its activities.

In the lower quintiles, the participation of students in private schools is almost negligible, with only about 4% of boys and 3% of girls enrolled in private schools at these income levels. In the upper two quintiles, the participation ratio of boys in private schools is about 62% compared with 56% for girls. Therefore, while the unexplained differences are larger in poorer segments of the population, discrimination is also prevalent at higher income levels, primarily through the school selection process.

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More ‘can and must be done’ to eradicate caste-based discrimination in Nepal

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Shocked over the killing last weekend of five men in Nepal, who had planned to escort home one of their girlfriends from a higher caste, the UN human rights chief on Friday stressed that ending caste-based discrimination is “fundamental” to the overall sustainable development vision of leaving no one behind.

“It is distressing that caste-based prejudices remain deeply entrenched in our world in the 21st century, and I am filled with sadness for these two young people who held high hopes of building a life together despite the obstacles presented by their accident of birth” said High Commissioner for Human Rights Michelle Bachelet, referring to the couple at the centre of the tragedy.

Last Saturday, a 21-year-old man from the ‘untouchable’ Dalit caste, known as Nawaraj BK, and his friends, traveled some 32 km from Jajarkot district, to Western Rukum district, the home of the man’s girlfriend, who belongs to a higher social caste.

They intended to escort the young woman back to their home district, reportedly at her request, but were attacked and chased into a river. Five men, four of whom were also Dalits, were later found dead, while another is still missing.

🇳🇵 #Nepal: UN Human Rights Chief condemns Dalit killings, incl. 5 men and a 12-year old girl. Shocked by incidents of caste-based discrimination &amp; violence that have taken place during #COVID19, @mbachelet calls for an independent investigation 👉 https://t.co/s0M8KoShyP pic.twitter.com/tllawTFg55 UN Human Rights UNHumanRights

“Caste-based discrimination remains widespread, not only in Nepal but other countries, and often leads to serious harm and, as in this case, even loss of life”, lamented Ms. Bachelet. 

Dalits under attack

Nawaraj’s case is not an isolated one.

Dalits, formerly known as “untouchables”, have suffered for generations of public shaming at the hands of upper-caste Hindus and continue to face widespread atrocities across the country, with any seeming attempts at upward social mobility, violently shut down.

In a similar case, disturbing reports have also emerging about a 12-year-old Dalit girl who was killed in a separate attack in the village of Devdaha, in the Rupandehi district in southern Nepal.

She is said to have been forcibly married to her alleged rapist from a dominant caste. The girl’s body was reportedly left hanging from a tree on Saturday.

The High Commissioner called for an independent investigation into the attacks, underscoring that the victims and their families have the right to justice, truth and reparations.

Searching for justice

The killings have triggered outrage in Nepal, prompting the federal Ministry of Home Affairs to establish a five-member “high-level investigation committee” to look into the incident. 

On Tuesday, police reportedly filed a complaint against 20 alleged perpetrators. 

“Despite constitutional guarantees, impunity for caste-based discrimination and violence remains high in Nepal”, according to the UN human rights office ( OHCHR ). 

And while the country has taken “big strides to address this scourge”, she maintained that “so much more can and must be done, to eradicate this blight on society”.

The Nepali Parliament’s Law, Justice and Human Rights Committee has asked authorities to immediately investigate two cases of gang-rape of Dalit women, as well as other caste-based cases involving murder, enforced disappearances and forced abortion.

Although Nepal is party to the Convention on the Elimination of All Forms of Racial Discrimination , the Committee tasked with monitoring the treaty observed that despite the abolition of “untouchability” in Nepal, Dalits continue to face deep-rooted discrimination, including issues surrounding inter-caste marriages.

Discrimination at every turn

And the risks for this vulnerable caste has only increased during the COVID-19 pandemic. 

On Monday, the parliamentary committee directed the Government to investigate all incidents of caste-based discrimination and violence during the coronavirus lockdown. 

Dalits in Nepal and other countries experience discrimination at every level of their daily lives, limiting their employment and educational opportunities, the places where they can collect water or worship, and their choice of who to marry, says OHCHR.

Structural barriers and discrimination force Dalits to continue low-income and dehumanizing employment, such as manual scavenging, disposing of dead animals, digging graves or making leather products.

• discrimination

Judith Butler Thinks You’re Overreacting

How did gender become a scary word? The theorist who got us talking about the subject has answers.

“There is a set of strange fantasies about what gender is — how destructive it is, and how frightening it is,” said Judith Butler, whose new book takes on the topic. Credit... Elliott Verdier for The New York Times

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By Jessica Bennett

Jessica Bennett is a contributing editor in Opinion, where she writes about gender, politics and personalities.

• Published March 24, 2024 Updated March 26, 2024

The first thing I did when reading Judith Butler’s new book, “Who’s Afraid of Gender?”, was to look up the word “phantasm,” which appears 41 times in the introduction alone. (It means illusion; the “phantasm of gender,” a threat rooted in fear and fantasy.)

The second thing I did was have a good chuckle about the title, because the answer to the question of who is afraid of gender was … well, I am? Even for someone who’s written on gender and feminism for more than a decade and who once carried the title of this newspaper’s “gender editor,” to talk about gender today can feel so fraught, so politicized, so caught in a war of words that debate, or even conversation, seems impossible.

I am perhaps the intended reader of Butler’s book, in which the notoriously esoteric philosopher turned pop celebrity dismantles how gender has been constructed as a threat throughout the modern world — to national security in Russia; to civilization, according to the Vatican ; to the American traditional family; to protecting children from pedophilia and grooming , according to some conservatives. In a single word, “gender” holds the power to seemingly drive people mad with fear.

Butler’s latest comes more than three decades after their first and most famous book, “Gender Trouble,” brought the idea of “gender as performance” into the mainstream. As it turns out, Butler — who has written 15 books since — never intended to return to the subject, even as a culture war raged. But then the political became personal: Butler was physically attacked in 2017 while speaking in Brazil, and burned in effigy by protesters who shouted, “ Take your ideology to hell .”

This conversation has been condensed and edited for clarity.

Did you ever think you’d see a world in which your ideas would be so widespread — and so fraught?

When I wrote “Gender Trouble,” I was a lecturer. I was teaching five classes, trying to work on this book I thought no one would read. Still, I knew I wasn’t just speaking for myself; there were other people who were strong feminists but also lesbian or gay or trying to figure out gender in ways that weren’t always welcome. But today, the people who are afraid of my ideas are the people who don’t read me. In other words, I don’t think it’s my ideas that they’re afraid of. They’ve come up with something else — a kind of fantasy of what I believe or who I am.

And of course it’s not just my views that are being caricatured, but gender more broadly — gender studies, policies that focus on gender, gender discrimination, gender and health care, anything with “gender” in it is a kind of terrifying prospect, at least for some.

So … who is afraid of gender?

It’s funny, I have a friend, a queer theorist. I told him the book’s name and he said, “Everyone! Everyone’s afraid of gender!”

What’s clear to me is that there is a set of strange fantasies about what gender is — how destructive it is, and how frightening it is — that a number of forces have been circulating: Viktor Orban, Vladimir Putin, Giorgia Meloni, Rishi Sunak, Jair Bolsonaro, Javier Milei, and of course Ron DeSantis, Donald Trump and lots of parents and communities in states like Oklahoma and Texas and Wyoming, who are seeking to pass legislation that bans the teaching of gender or reference to gender in books.

Obviously, those folks are very frightened of gender. They imbue it with power that I actually don’t think it has. But so are feminists who call themselves “gender critical,” or who are trans-exclusionary, or who have taken explicit positions against trans politics.

Can you describe what prompted you to return to this subject?

I was going to Brazil for a conference on the future of democracy. And I was told in advance that there were petitions against me speaking, and that they decided to focus on me because I’m the “papisa,” the female pope, of gender. I’m not quite sure how I got to have that distinction, but apparently I did. I got to the venue early, and I could hear the crowds outside. They’d built a kind of monstrous picture of me with horns, which I took to be overtly antisemitic — with red eyes and kind of a demonic look — with a bikini on. Like, why the bikini?

But in any case, I was burned in effigy. And that freaked me out. And then, when my partner and I were leaving, at the airport, we were attacked: Some woman came at me with a big trolley and she was screaming about pedophilia. I could not understand why.

You thank the young man who threw his body between you and the attacker, taking blows. Was this the first time you’d heard that “ pedophilia ” association?

I had given a talk on Jewish philosophy, and somebody in the back said, “Hands off our children!” I thought, What? I figured out later that the way that the anti-gender ideology movement works is to say: If you break down the taboo against homosexuality, if you allow gay and lesbian marriage, if you allow sex reassignment, then you’ve departed from all the laws of nature that keep the laws of morality intact — which means it’s a Pandora’s box; the whole panoply of perversions will emerge.

As I was preparing to interview you, I received a news alert about the “Don’t Say Gay” settlement in Florida, which says that schools cannot teach about L.G.B.T.Q. topics from kindergarten through the 8th grade, but clarifies that discussing them is allowed . You write that words have become “tacitly figured as recruiters and molesters,” which is behind the effort to remove this type of language from the classroom.

Teaching gender, or critical race theory, or even ethnic studies, is regularly characterized as forms of “indoctrination.” So for instance, that woman who was accusing me of supporting pedophilia, suggests that my work or my teaching would be an effort at “seduction” or “grooming.”

In my experience of teaching, people are arguing with each other all the time. There’s so much conflict. It’s chaotic. There are many things going on — but indoctrination is not one of them.

What about the warping of language on the left?

My version of feminist, queer, trans-affirmative politics is not about policing. I don’t think we should become the police. I’m afraid of the police. But I think a lot of people feel that the world is out of control, and one place where they can exercise some control is language. And it seems like moral discourse comes in then: Call me this. Use this term. We agree to use this language. What I like most about what young people are doing — and it’s not just the young, but everybody’s young now, according to me — is the experimentation. I love the experimentation. Like, let’s come up with new language. Let’s play. Let’s see what language makes us feel better about our lives. But I think we need to have a little more compassion for the adjustment process.

I want to talk for a moment about categories. You have occupied many — butch, queer, woman, nonbinary — yet you’ve also said you’re suspicious of them.

At the time that I wrote “Gender Trouble,” I called for a world in which we might think about genders being proliferated beyond the usual binary of man and woman. What would that look like? What would it be? So when people started talking about being “nonbinary,” I thought, well, I am that. I was trying to occupy that space of being between existing categories.

Do you still believe that gender is “performance?”

After “Gender Trouble” was published, there were some from the trans community who had problems with it. And I saw that my approach, what came to be called a “queer approach”— which was somewhat ironic toward categories — for some people, that’s not OK. They need their categories, they need them to be right, and for them gender is not constructed or performed.

Not everybody wants mobility. And I think I’ve taken that into account now.

But at the same time, for me, performativity is enacting who we are, both our social formation and what we’ve done with that social formation. I mean, my gestures: I didn’t make them up out of thin air — there’s a history of Jewish people who do this. I am inside of something, socially, culturally constructed. At the same time, I find my own way in it. And it’s always been my contention that we’re both formed and we form ourselves, and that’s a living paradox.

How do you define gender today?

Oh, goodness. I have, I suppose, revised my theory of gender — but that’s not the point of this book. I do make the point that “gender identity” is not all of what we mean by gender: It’s one thing that belongs to a cluster of things. Gender is also a framework — a very important framework — in law, in politics, for thinking about how inequality gets instituted in the world.

This is your first book with a nonacademic press. Was that a conscious decision?

Oh, yeah. I wanted to reach people.

It’s funny because many of your ideas do reach people, albeit in internet-era sound bites. I’m thinking about, for instance, of “gender is a drag” T-shirts or “ Judith Butler explained with cats .” It strikes me that a lot of people who claim to have read you have actually just read the Instagram caption of you.

Well, I don’t blame them for not reading that book. It was tough. And some of those sentences are truly unforgivable. Hopefully I didn’t do that in “Who’s Afraid of Gender?”

I feel like I’m more in touch with people who are mobilizing on the ground at the global level than I have been before. And that pleases me.

Jessica Bennett is a contributing editor in the Opinion section of The Times. She teaches journalism at New York University and is the author of “Feminist Fight Club” and “This Is 18.” More about Jessica Bennett

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