GSP+ and LGBTIQ rights: What is going on?

By Shihara Maduwage 

Sri Lanka’s trade concessions for its exports to the European Union (EU), through the Generalised Scheme of Preferences (GSP+), is in peril again. In June this year, the EU Parliament adopted a special resolution that called on the European Commission (EC) to consider “whether there is sufficient reason, as a last resort, to initiate a procedure for the temporary withdrawal of Sri Lanka’s GSP+ status”.

The EU’s GSP+ scheme cuts trade tariffs significantly for Sri Lankan exports, including apparel, ceramic and rubber. The facility is vital to Sri Lanka as the EU is Sri Lanka’s second-largest trading partner and the country’s second main export destination; the EU accounted for 22.4% of Sri Lankan exports in 2020. 

The scheme is heavily contingent upon meeting human rights standards. In 2010, Sri Lanka lost its GSP privileges, as the country failed to address alleged human rights violations. Sri Lanka was regranted this vital facility in 2017 in the form of GSP+ on the conditions that would implement human rights reforms, and in particular repeal or replace its anti-terror laws under the Prevention of Terrorism Act (PTA). However, as Sri Lanka has repeatedly failed to meet these conditions, the EU is considering the suspension of the facility once again. In this regard, a five-member European Union delegation visited Sri Lanka in September this year. 

GSP+ and LGBTIQ rights 

The resolution highlights that the European Parliament is “concerned that provisions in Sri Lanka’s Penal Code, notably sections 365, 365A and 399, have been interpreted in such a way as to criminalise individuals with diverse sexual orientations and gender identities.” 

Sections 365 and 365A of Sri Lanka’s Penal Code are archaic British laws, inherited from the colonial period. These state that “carnal intercourse against the order of nature” and “acts of gross indecency” are criminal offences punishable by the law, carrying a sentence of up to 10 years. 

As their legacy is rooted in Victorian-era sodomy laws, these Sections are most often used against the Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer/Questioning (LGBTIQ) community. Section 399 of the Penal Code regarding “cheating by personation” (referring to impersonation) is also used against the LGBTIQ community in Sri Lanka, particularly against transgender individuals.

Meanwhile, the EU Delegation’s statement after the visit mentioned that the mission had a significant focus on non-discrimination, the respect for the rights of all communities in Sri Lanka, and impediments to the exercise of fundamental freedoms, among other issues.

In 2017, when the EU was considering regranting the GSP+ facility to Sri Lanka, it raised concerns about continued discrimination of the LGBTIQ community. 

In order to address this concern, the then government included a proposal to “decriminalise homosexuality” but dropped it in its National Action Plan for Human Rights (2017-2021) later due to protests from the Ministers. The Minister of Health and Cabinet Spokesperson at the time, Rajitha Senaratne, said the Cabinet opposed the request for decriminalising homosexuality but that the Government will “not prosecute anyone for practicing it.”

Instead, the Action Plan simply included a clause on eliminating “discriminatory practices within healthcare settings based on perceived or actual HIV status, sexual orientation and gender identity including steps to remove structural and systemic barriers, through in-service training programmes for healthcare staff.” 

Implications of discrimination and criminalisation  

That said, latest Equal Ground’s research report ‘Mapping LGBTIQ Identities in Sri Lanka’ shows that one in eight – or 12% – adults between the ages of 18-65 years in Sri Lanka identify as LGBTIQ. This means that refusing to decriminalise same-sex sexual relations among consenting adults leaves the doors open for the marginalisation and the discrimination to take place against 12% of the population. 

The Mapping Study also revealed that 11% of LGBTIQ respondents have faced some form of abuse or discrimination due to their SOGIE while 6% of the LGBTIQ respondents mentioned that they were refused medical treatment and 10% said they have been refused employment. Furthermore, 12% have been forced out of work, education or their houses. Additionally, 10% of LGBTIQ respondents have faced physical assault and 17% of them have faced some type of harassment including verbal abuse, harassment by the police, family and/or at work. Evidence also shows that LGBTIQ persons face more bullying and harassment during their childhood which leads to interruptions in education. 

Due to anti-LGBTIQ laws and resulting discriminatory practices, the queer population in Sri Lanka is not able to live their authentic lives. It also means that they are held back from realising their potential and fully contributing as productive members of the society. 

Current situation on LGBTIQ rights and decriminalisation 

Under the current Rajapaksa-led regime, the conversation surrounding LGBTIQ rights and decriminalisation of homosexuality has been a mixed-bag. 

For instance, in September last year, the Fort Magistrate’s Court was set to sentence two men who had confessed to engaging in same-sex sexual relations. It was also revealed that in the 2017-2020 period, the authorities forced medical tests that include anal/vaginal examinations on at least seven individuals to provide proof of homosexual conduct. Anal and vaginal exams have no scientific or medical basis and have been largely discredited as viable proof of “sexual activity” and international bodies such as the World Health Organisation (WHO) have called these examinations a form of violence and torture. 

On a positive note, following these revelations, the Minister of Justice, Ali Sabry, issued a statement requesting relevant authorities to refrain from this practice till these events can be properly investigated.

In another recent incident, a self-proclaimed counsellor and trainer was seen making malicious and homophobic remarks about the LGBTIQ community to the Police in Kandy, during a training session. Following the uproar about this incident, the Sri Lanka College of Psychiatrists made a statement supportive of the LGBTIQ community, condemning her remarks. 

On Zero Discrimination Day this year (1 March 2021), President Gotabaya Rajapaksa tweeted, “Today is #ZeroDiscriminationDay. As the president of #lka I am determined to secure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance, and beliefs.” The inclusion of sexuality here is significant. 

Thus, while it is clear that there has been some progress made with regards to granting rights to the LGBTIQ community, the road ahead is long. 

At this juncture, GSP+ is vital to Sri Lanka, especially considering its current debt situation and the pandemic-related economic losses. Key industries such as the apparel sector – which was hit heavily due to the pandemic – are dependent on access to the EU market through GSP+. It is also important to consider that losing the GSP+ concession would also disproportionately impact the low-income earners. 

Adhering to the conditions placed by the EU relating to human rights are an obstacle that the Sri Lankan Government needs to overcome in order to have continued access to the vital EU markets. Beyond meeting the conditions, it is also imperative to have policies in place that ensure non-discrimination of all communities, including the LGBTIQ community. 

On a broader scale, taking positive steps towards decriminalisation is vital, not only because the world is watching, but because every Sri Lankan deserves to live with respect, safety, and dignity. 

Sources: 

https://ec.europa.eu/trade/policy/countries-and-regions/countries/sri-lanka/

https://www.europarl.europa.eu/doceo/document/TA-9-2021-0290_EN.html 

https://eeas.europa.eu/delegations/sri-lanka/105156/eu-gsp-monitoring-mission-concludes-visit-sri-lanka_en 

http://gbvforum.lk/r-library/document/National%20Action%20Plan%20for%20Human%20Rights.pdf 

https://www.equal-ground.org/wp-content/uploads/Report_EG-edited.pdf 

(The writer is Media and Communications Officer at Equal Ground.)