By Naveed Rozais
The Students for Liberty Sri Lanka chapter held the second session in a series of LGBTQ+focused webinars on 14 November, bringing together LGBTQ+ advocates and activists to discuss the legal landscape Sri Lanka’s LGBTQ+ community finds themselves in.
The webinar panel consisted of Vassar College New York LGBTQ+ and Gender Resources Director Danuhsi Fernando, University of Colombo Faculty of Law senior lecturer Visakesa Chandrasekaram, and international LGBTQ+ rights activist, political affairs analyst, and academic Dr. Chamindra Weerawardhana.
The aim of the webinar was to discuss what rights and protection the LGBTQ+ community in Sri Lanka currently have as well as the reforms needed for a more inclusive society and country.
Sri Lanka’s legal stance on LGBTQ+ issues
Same-sex relations are still criminalised under Sections 365 and 365A of Sri Lanka’s Penal Code (this section of the Penal Code deals with unnatural offences and grave sexual abuse) and the LGBTQIA community still faces a great deal of harassment and violations of their rights.
Dr. Weerawardhana shared that the Ministry of Health has published a circular on legal gender recognition modelled after the UK’s Gender Recognition Act of 2004. This circular allows a transgender person who has begun the medical gender change process to have their gender changed on their national identification documents including their birth certificates. This is contingent on medical review by a consultant psychiatrist who has to deliver a diagnosis of gender dysphoria for the process to begin.
However, Section 399, which deals with impersonation, is frequently used as a means to discriminate against transgender persons, especially those who haven’t undergone the medical change process, on the basis that they are violating the ordinance by dressing as a member of the opposite gender.
These sections of the Penal Code, along with the Vagrancy Ordinance, are frequently used to make arbitrary arrests against LGBTQ+ persons.
Fernando explained that the vague wording of these laws contributes to them being misused. For example, Section 365 reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished…”, but the word voluntarily means consensual, and consensual sexual relations between adults is not something that can be policed by the state. Fernando also noted that with the wording of carnal intercourse, the law implies that homosexual activity is against the order of nature, which is to say it doesn’t occur in nature, which is a myth, as homosexual relations happen very frequently within the animal kingdom.
Fernando also addressed the wording of Section 365A which addresses acts of “gross indecency” committed privately or publicly, pointing out that what constitutes gross indecency is never clearly defined and is subjective.
Fernando further shared that it is important for Sri Lanka to remember that these laws and attitudes are not our own, but were injected into our culture by colonists. The laws themselves come from British colonial law. Pre-colonisation, there were lots of depiction of homosexuality in our art and culture. It was only after western colonisation that same-sex relations became seen as bad.
“We need to go back to learning our history properly, and help people who use the word ‘culture’ back at us and help them realise it is colonisation.”
Speaking on the power of the Supreme Court, Fernando explained that constitutionally, the Supreme Court doesn’t have the power of judicial review, which means they cannot change laws, but they do have the power to interpret these laws.
In 2017, the Supreme Court said it was inappropriate for sentencing to be done on LGBTQ+ persons. However, Fernando noted that just because sentencing cannot be carried out doesn’t mean that LGBTQ+ persons cannot be detained or arrested, which is why it is important for LGBTQ+ persons to know their rights
Rights of the LGTBTQ+ community
Article 12 of Sri Lanka’s Constitution consists of two key parts. Part one states that “all persons are equal before the law and are entitled to the equal protection of the law”, and part two states that “no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth, or any one of such grounds”.
Fernando commented that while these protections against discrimination are implicit, it frequently doesn’t work that way practically, and we need clearer laws with terms that are not easy for people to hide behind.
Chandrasekaram commented that from a legal standpoint, the list of discriminatory factors is left open-ended for specific cases to be argued. For example, recently a boy was denied admission to school because his mother was HIV-positive, and the school felt the boy would likely be HIV-positive too. The Supreme Court went on record saying that the boy couldn’t be discriminated against because of his perceived HIV status. HIV status is not on the list of discriminatory factors listed in the Constitution but falls under other grounds.
However, with regard to sexual orientation, there have been no previous rulings, largely because those members of the LGBTQ+ community who are targeted by law enforcement are already disadvantaged and unable to defend themselves.
“For this to happen with sexual orientation, a high-profile person has to be a part of the case,” Chandrasekaram said, adding: “And you need a good, solid evidence base. This hasn’t happened yet.”
Fernando shared that it was vital for LGBTQ+ persons to know their rights. Namely, the right to ask law enforcement for their identification, the right to ask why they are being arrested (however, you should not resist arrest), the right to a lawyer, the right to not be detained for more than 48 hours without being produced before a magistrate, and the right to not being tortured and subjected to cruel or degrading treatment.
How can we move forward?
Chandrasekaram shared that there do not seem to be effective domestic remedies that afford LGBTQ+ persons a great deal of legal protection. Internationally, the Human Rights Committee is an avenue that can be pursued by LGBTQ+ persons whose rights have been violated. However, Chandrasekaram noted that the Human Rights Committee holds limited power, and the Supreme Court is not bound to hold recommendations made by the Human Rights Committee.
On a practical level, Chandrasekaram shared that the most practical way forward is amending these laws in the Penal Code to include more clarity. For example, removing the word “private” from Section 365A, so that consensual relations can take place in private without censure.
Weerawardhana commented on the future, sharing that even within the LGBTQ+ community, there is still a lot of bias and misunderstanding that takes place, particularly towards transgender persons, and that the correct use of terminology and fair unbiased representation, particularly in media, needs to take place in order to overcome these biases, both within the community and without.
“As Sri Lankans, we do have a democratic tradition, and it’s important to remember this. We need more representation of LGBTQ+ people in our daily lives, media campaigns need to be strengthened, and we need to strongly mobilise the younger generation. They need to be made more conscious,” Weerawardhana stressed on the importance of the younger generation.
