Ensuring equality and non-discrimination for lesbian, gay, bisexuals and transgender people

By Mathuri Thamilmaran

On 1 March, President Gotabaya Rajapaksa elicited considerable public interest through a single tweet. 

In his tweet commemorating Zero Discrimination Day, he declared his intent to ‘secure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance and beliefs’ (https://twitter.com/GotabayaR/status/1366258501886955526).

According to reports, the tweet made history as the first public acknowledgment by a South Asian Head of State of everyone’s right not to be discriminated against on the basis of sexuality and gender, thus affirming, effectively, one’s right to live life with dignity regardless of sexual orientation, gender identity or expression. It comes at a time when the President has initiated the drafting process of a new Constitution and a first draft is expected soon. 

The tweet has opened up a much-needed conversation on sexual orientation, gender identity and expression (SOGIE) in Sri Lanka, particularly regarding the Government’s obligation to ensure that lesbian, gay, bisexual and transgender (LGBT) people are not discriminated against in law or practice.

As it stands, the Sri Lankan Constitution guarantees the right to equality before the law and equal protection of the law of all persons (Article 12). It also prohibits discrimination on the grounds of race, religion, language, caste, sex, political opinion and place of birth. Notably, therefore, the Constitution does not prohibit discrimination on the grounds of sexual orientation or gender identity and/or expression. 

Sections 365 and 365A of Sri Lanka’s Penal Code (1883) criminalize “carnal intercourse against the order of nature” and “acts of gross indecency”, respectively. Both sections have been used to criminalise consensual same-sex sexual relations, albeit the Penal Code does not provide a definition of the terms used by those sections. Those convicted of the ‘crime’ may face up to ten years’ imprisonment.   Section 399 of the Penal Code criminalises “gender impersonation”, and has often been used against transgender persons with cases being filed against them “for misleading the public”. Further, the loitering provisions of the Vagrants Ordinance (1842) have been used to intimidate, extort, detain and interrogate individuals whose appearance do not conform to gender norms. 

In addition, Article 16 of the Constitution states that ‘existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency’ with the provisions of the Fundamental Rights chapter. As a result, judicial review of existing laws, such as the Penal Code and Vagrants Ordinance, is precluded, thereby shielding the authorities from any scrutiny, including in cases that have given rise to abuse allegations. These provisions have all contributed to an increase in human rights violations by police officers against LGBT persons.

Just last year, a special investigation by a local newspaper found that inhumane methods, including flogging and anal/vaginal examinations, which amount to torture or other ill-treatment, were being used against LGBT people by Sri Lankan authorities to obtain “evidence” of same-sex sexual relations. There had also been instances where H.I.V. tests had been ordered by courts and their results publicly revealed in court, a clear violation of the right to privacy of the individuals concerned. 

Following these revelations, the Minister of Justice Ali Sabry made an official statement that he had instructed the relevant authorities to stop such harmful practices while also reiterating his belief in non-discrimination on the basis of ‘gender, sexual preference or identity’. Further, it was reported that as recently as this month, judges were warning the police not to harass transgender persons by misusing the laws and to treat them with dignity.  

In 2014, the then Sri Lankan Government made representation before the UN Human Rights Committee that Article 12 of the Constitution included non-discrimination on the basis of sexual orientation and gender identity, but, as seen above, explicit provisions and application of the law seem to negate this argument. 

Furthermore, in 2017, during its Universal Periodic Review at the Human Rights Council, Sri Lanka committed to taking steps to end discrimination on the basis of sexual orientation and gender identity. Since then, however, attempts to include SOGIE in the National Action Plan on Human Rights have been dropped due to opposition within the Cabinet.

Sri Lanka’s neighbours in South Asia have made progressive strides, with both India and Bhutan having decriminalised consensual same-sex sexual relations in recent years. 

Bhutan’s penal code provision regarding ‘sex against the order of nature’ had been enacted only in 2004 but activism and the recognition that the law would dissuade those in same-sex relations from actively seeking treatment for H.I.V. led to the decision to decriminalise.

In 2018, the Indian Supreme Court read down section 377 of the Indian penal code which was used to criminalise consensual same-sex sexual relations, and stated that its application to consensual relations between LGBT persons was unconstitutional as it was in violation of certain fundamental rights, including the right to equality. 

In 2018, Pakistan enacted a law recognising the human rights of transgender people, including the right to legal recognition of one’s preferred gender identity. Among other things, the understanding that most of the discriminatory legal provisions were remnants of British colonial rule and the need to move past such influence has led to these developments.

In Sri Lanka, homophobia is primarily seen as cultural issue, but there are indications that times are changing. Sections of the media now allow more space for discussions of LGBT persons’ human rights, even covering Pride events, while a Supreme Court judgment in 2016 noted that ‘consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation’.

If a discriminatory law passed as late as 2004 can be discarded by Bhutan, then surely Sri Lanka too can follow its neighbours and break free from its colonial era shackles and guarantee equality for LGBT persons.

It is time that Sri Lanka steps up to fulfil its international human rights obligations by ensuring equality to all persons, including LGBT people, and that it delivers on the expectations raised by the President’s tweet and previous public pronouncements. 

Last year the President appointed an ‘Expert Committee’ to undertake the drafting of a new Constitution. The inclusion of SOGIE as prohibited discrimination grounds in the Fundamental Rights protection provided by the (new) Constitution would be a first step in fulfilling the State’s international law commitments as well as rebuilding its relationship with LGBT people. 

(The writer is National Legal Advisor – Sri Lanka at the International Commission of Jurists)