(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Bhutan is a small constitutional monarchy nestled between India and China, and its recent constitution of 2008 acknowledges Mahayana Buddhism as its principle inspiration. The Constitution also drew from those of other countries, in particular that of South Africa in recognition of its focus on human rights. No reference is made to the Universal Declaration of Human Rights in the Constitution, though Article 9, Principles of State Policy does include:
‘20. The State shall strive to create conditions that will enable the true and sustainable development of a good and compassionatesociety rooted in Buddhist ethos and universal human values.’ This could be considered an acknowledgement of values similar to those enshrined in the United Nations Charter.
Fundamental Rights for Bhutanese citizens are contained in Article 7:
‘1. All persons shall have the right to life, liberty and security of person and shall not be deprived of such rights except in accordance with the due process of law.
15. All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status.’
The constitution does however allow the State to restrict these rights:
‘22. Notwithstanding the rights conferred by this Constitution, nothing in this Article shall prevent the State from subjecting reasonable restriction by law, when it concerns:
(b) The interests of peace, stability and well-being of the nation;
(d) Incitement to an offence on the grounds of race, sex, language, religion or region.’
This allows for the laws against sodomy laid out in the Penal Code of Bhutan to remain, at least legally, consistent with the constitution.
Chapter 14, Section 213 of the Penal Code states:
A defendant shall be guilty of the offence of unnatural sex, if the defendant engages in sodomy or any other sexual conduct that is against the order of nature.’
Section 214 grades unnatural sex as a ‘petty misdemeanor’, putting it in the same class as bestiality, marital rape and sexual harassment.
Chapter 2 Section 3 classifies as follows:
‘(c) A crime shall be petty misdemeanor, if it is so designated in this Penal Code or other laws andprovides for a maximum term of imprisonment of less than one year and a minimum term of one month for the convicted defendant.’
No published cases have been found. There is no record of Section 213 of the Penal Code ever being instigated. We would be grateful if users of this website are able to refer us to any that they know of which involved LGBTI cases from the Bhutan. There are also no cases available of refugees claiming asylum elsewhere on account of LGBTI persecution from within Bhutan.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
No research currently available cites any cases that have prosecuted individuals under Chapter 14 Sections 213-214 of the Penal Code, either women or men. Articles on www.globalgayz.com suggest that this is down to public ignorance about the existence of any LGBTI community and a deep respect for privacy that the nation has always espoused. Interviews with Global Gayz indicate that most homosexual men are in heterosexual marriages with a family and that sole commitment to homosexual relationships is rare. Gender reassignment is not recognised as an offence, but no evidence could be found to suggest that the operation is available in Bhutan or that there is any recognition of trans gender individuals by most ordinary Bhutanese people.
Despite the lack of enforcement the Bhutanese government has not accepted recommendations from Canada during the 2009 Universal Periodic Review to decriminalise sodomy. In March 2010 the Government formally rejected the recommendations, responding that laws on sodomy between consenting adults would be reviewed when there was a felt need and desire from the Bhutanese people.
The Bhutanese government did not sign the Franco/Dutch initiated statement presented to the UN in December 2008 that condemned discrimination and prejudice based on sexual orientation or gender identity. Nor did it sign the opposing statement backed by the Arab League.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
No records could be found of any NGOs working within Bhutan focussing on the rights of LGBTI. Bhutan’s long history of self isolation has only recently started changing. This, coupled with a long history of ruling governments’ hostility towards human rights and NGOs, may help explain the continuing lack of information on local and international NGOs working there. Readers who have more information on this are encouraged to get in touch with the contact below.
COUNTRY OF ORIGIN SPECIALISTS
We have no specialist on LGBTI for Bhutan, but would welcome suggestions.
Researched by Edward Mundy
Email: ed [dot] mundy [dot] uk [at] gmail [dot] com (ed.mundy.uk[at]gmail.com)