The Rotaract Club of the Faculty of Law, University of Colombo, recently hosted a webinar that focused on the legal aspects faced by the Lesbian, Gay, Bisexual, Transgender, Queer/Questioning (LGBTQ+) community. Speaking at the event was Attorney-at-Law, solicitor, and University of Colombo Faculty of Law lecturer Dr. Visakesa Chandrasekaram.
Speaking on the topic of the current legalities for a member of the LGBTQ+ community, Dr. Chandrasekaram said: “We can look at it from two perspectives. One is that homosexuality is a criminal offence in Sri Lanka and the Penal Code Sections 365 and 365A criminalise consensual sex between two people of the same sex.”
He further noted that there are certain provisions related to cross dressing in Section 399 of the Penal Code. “It is very easy for a person to be prosecuted under these sections.”
Going into the second aspect, he stated: “Then there would be the human rights angle. We do have an equality provision, and Article 12 of the Constitution specifies a number of different groups, but the LGBTQ+ group is not explicitly included in this article.” He raised the point that this could bring arguments for and against the community.
“The good thing about Article 12 is that it also recognises ‘other’ groups, If you look at the international human rights jurisprudence, mainly the European Court of Human Rights has interpreted the term of ‘other’ to include the LGBTQ+ community. Therefore, we can argue their right to equality before the law.”
He also added that some may argue that it is not specified explicitly, but he believes that there is a strong case to be made in the modern democratic society that their rights are protected.
The contradictions in policies
When taking the aforementioned Penal Code sections and Article 12 into consideration, there is a clash in the two laws. Whilst one can interpret the former to argue that same-sex sexual intercourse is a crime, members of the LGBTQ+ community are also protected under Article 12. “We have another article; Article 16 allows the continuity of archaic laws. Despite some of these laws violating our fundamental rights principles, they can still be enforced. The only restriction we have is enforced by Article 12.”
These laws have a history going back thousands of years; there are phrases such as “against the order of nature” and “gross indecency”, that Dr. Chandrasekaram notes come from the Old Testament in the Bible, followed by the New Testament and adopted by the Quran as well. “Because the historical roots are not very clear, according to my knowledge, these laws were first initiated in the 16th Century followed by more laws being implemented by the British Empire, and we thus inherited those (vague) laws.”
He observed that there are a lot of contradictions and a lack of clarity: “The law is based on the idea that sex is only for reproduction purposes; anything else is considered ‘unnatural’.” Due to this, the phrase referring to sexual relations “against the order of nature” could apply to homosexual people of the community.
He further questioned: “Can’t we, in spite of the existence of Article 16, follow the Indian pathway and recognise the right to privacy over the criminal offence of consensual sex between two adults of the same sex?”
Social status and its impact
Some issues that are confronted by the LGBTQ+ community are also faced by the general public as well. One example is how the Police would treat an individual. “You will see that individuals have a level of power because they belong to a certain class or civil status. So, those who have that may have the capacity to manoeuvre police officers’ decisions, and these officers would also have the discretion to decide on repercussions based on class and social status.” Dr. Chandrasekaram stated that we have to bear in mind that while there are certain laws that can be used to harm the LGBTQ+ community, certain generic acts, that are not strictly legal, can affect them too.
Using a personal example to prove his point, he said: “As a member of the LGBTQ+ community, I still have educational qualifications, I am a lawyer, so I have that civil power, and I’m an artist as well, so I have not been discriminated against as much as somebody who would not have that certain status could be.”
Dr. Chandrasekaram urges practitioners of the law to challenge the construct of the offence when they are given cases involving the LGBTQ+ community: “They should ask questions like ‘what about the privacy of the individuals?’, ‘what about when similar acts occur between heterosexuals?’, and what exactly is ‘unnatural offence?’”
He also questioned how one could be viewed as committing an act of gross indecency when the act in question is done in private and not in public.
If these questions are asked when a member of the LGBTQ+ community is being persecuted, there is a chance the charges may even be dropped.
To find out more on the laws governing the LGBTQ+ community in Sri Lanka, watch the webinar on the Rotaract Club Facebook page: @RotaractClubOfFacultyOfLawUniversityOfColombo