By Sarah Hannan
Clinging on to 19th-Century laws and not amending or repealing sections to match present-day civic rights has inconvenienced the minorities of Sri Lanka over the years; and in recent times, that the country is depriving the its vulnerable citizens of their fundamental rights caught the attention of the international community.
In this backdrop, United Nations (UN) Special Rapporteur on the rights to freedom of peaceful assembly and association Clément Nyaletsossi Voulé, at the end of his visit to Sri Lanka in July, shared some observations that raised concerns on the Constitution of Sri Lanka.
He referred to legislation being enforced in a biased manner which led to having chilling effects on the gathering of certain communities, including the LGBTIQA community in terms of peaceful assembly in public places.
In many instances, the law enforcement authorities detained persons most often identified as transgender or transsexual under the Vagrants Ordinance of 1841.
The Police would exercise their power to determine and interpret the law, and had many times used the Vagrants Ordinance to wrongfully detain transgender people and people of sexual minorities because they appear to look different.
In most cases, it is those of lower socioeconomic status who are the most vulnerable to this form of harassment; women including trans women are particularly vulnerable to sexual harassment, abuse, and mistreatment while in police custody.
Room for misinterpretation
The Vagrants Ordinance mentions that persons who behave in a riotous or disorderly manner, who wilfully refuse/neglect to engage in any employment and wander public spaces, beggars, common prostitutes, wandering persons who lodge outside houses or unoccupied buildings, and persons accosting or addressing another person against his will and to his annoyance in a public space can be arrested without a warrant.
Furthermore, Section 3 (b) of the Ordinance states that “every common prostitute” wandering in a public street or highway can be arrested. The Ordinance does not clearly define a common prostitute, and so when persons a misinterpreted as being so by law enforcers, it can cause a great risk to transgender persons, who would be arrested and detained.
According to the Police, most often, they arrest transgender persons (male to female) on the street during night patrols.
The leads are given by anonymous callers who state there are cross-dressers roaming the streets. With the Police being empowered to arrest transgender persons without a warrant and not following procedure to verify whether the complaint was true or not, most often, transgender persons are placed in a vulnerable situation, where they are judged as sex workers.
Transgender persons are also penalised under Section 399 of the Penal Code, which covers cheating by personating.
Attorney-at-Law Radhika Gunaratne informed that cross-dressing is not impersonation.
“There are lots of women who wear trousers. If the aforementioned interpretation is true, all those women would be impersonators. Although it can be interpreted as impersonation in a narrow sense, it cannot be in a broader sense. Even though cross-dressing cannot be called an offence, the Police usually push it across as an offence. However, such interpretations can be legally challenged.”
Gender impersonation is neither clearly mentioned nor included in the illustrations under Section 399 in the Penal Code.
It seems that gender impersonation is interpreted as an offence even when an imaginary person is impersonated. Interpreting cross-dressing as impersonation is seriously inaccurate in the case of transgender persons as they engage in cross-dressing as a part of expressing their true identity.
Reforms not seen the light of day
Lambda Legal law fellow Yuvraj Joshi in 2015 and 2016 documented abuses against LGBTI people in Sri Lanka for Human Rights Watch (HRW).
During his research, he found that people who do not conform to gender norms in Sri Lanka, including many who are or are perceived to be lesbian, gay, bisexual, transgender, or intersex (LGBTI), face detention and harassment by the Police, discrimination in housing, employment, and healthcare, and other forms of mistreatment.
“Social standing plays a significant role in the discrimination that LGBTI people face: Those who are poor, who engage in sex work, or who obviously do not adhere to rigid gender norms are most vulnerable to abuse,” Joshi reported.
Sri Lanka has been in the midst of constitutional reform since 2015; yet, with the office term for President Maithripala Sirisena too nearing its end, there seems to be little to no progress on any such reforms.
In January 2017, Sri Lanka’s Cabinet refused to incorporate a provision against “discrimination based on sexual orientation” in the proposed National Human Rights Action Plan for 2017-2022. Indeed, President Sirisena himself strongly objected to protections from sexual orientation discrimination.
The Cabinet’s action was condemned by many civil society actors and LGBTIQ people.
The new constitution was to provide an opportunity to expressly incorporate gender identity and sexual orientation into the Constitution’s Equal Protection clause as well as other fundamental rights protected under international law that are currently absent from the constitutional text, including the rights to life, health, and privacy.
Sri Lanka’s own Public Representations Committee on Constitutional Reform, comprising members nominated by the Government and civil society, and tasked with preparing recommendations based on public submissions, proposed a directive principle that people and groups should be protected from discrimination on the basis of “sexual or gender orientation and identities” and that Sri Lanka should protect “all vulnerable groups including persons with diverse sexual and gender orientations”.
Many local activists have engaged in public and quiet advocacy on this issue, including groups like Heart2Heart, Venasa Transgender Network, and Equal Ground, as well as nearly 90 LGBTIQ people who filed a submission to the Committee.
Activists believe that constitutional protections from discrimination based on sexual orientation and gender identity would represent a significant step in addressing an underlying cause for these abuses.
They may also pave the path for the repeal of some laws, including Sections 365 and 365A of the Penal Code, which are used to discriminate against LGBTI people.
As a submission to the public Representations Committee made by LGBTIQ people stressed, “without detailed mention of specific communities that are persecuted in our society, we will not be able to achieve the goal of holistic equality for all citizens of Sri Lanka”.