No pride in Sri Lanka

In June, millions of people across the world celebrate pride events that acknowledge the self-acceptance, achievements and legal rights of the Lesbian Gay Bisexual and Transgender (LGBT) community. Such rights have now become the norm and many countries have as the first step decriminalised same-sex relations between consenting adults.

In 2017, India’s Supreme Court gave the country’s LGBT community the freedom to safely express their sexual orientation. It ruled that an individual’s sexual orientation is protected under the country’s Right to Privacy law. A year later consensual gay sex was legalised by India’s Supreme Court when it struck down Section 377 of the penal code, a colonial-era law that outlawed same-sex relations. Sri Lanka has not seen such progressive actions that reflect the values of a modern society either in the judiciary or the legislature and continues to criminalise sexual activities. It is one of 69 countries that sill criminalises same-sex relations between consenting adults.

Same-sex sexual activity is prohibited under the Penal Code, which criminalises acts of ‘carnal knowledge against the order of nature’ and ‘gross indecency’. These provisions carry a maximum penalty of 10 years’ imprisonment and a fine. Both men and women are criminalised under this law. The 1883 Penal Code was inherited from the British during the colonial period, in which the English criminal law was imposed upon Sri Lanka and we retained the law upon independence and continue to uphold these outdated laws.

There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrests. In fact, even last week there was a report of two women, one a foreign national and the other a Sri Lankan, being arrested by the Akkaraipattu police and produced before a magistrate who in turn sent them for psychiatric evaluation after the Sri Lankan woman’s father complained about his daughter’s same-sex relationship. Reports by civil society organisations, activists, and police records suggest that those detained are often subjected to torture in the form of beatings and forced anal and vaginal ‘examinations’.

In March this year the UN Committee on the Elimination of Discrimination against Women (CEDAW) found that Sri Lanka violated the rights of a lesbian and leading LGBT activist who was subjected to discrimination, threats and abuses due to the country’s laws. CEDAW found that Sri Lanka had breached the rights of Rosanna Flamer-Caldera, the founder and Executive Director of Equal Ground, an organisation defending the rights of the lesbian, gay, bisexual, transgender and intersex community in Sri Lanka.

Such international condemnation could have been avoided if necessary actions were taken to rectify these archaic laws. An opportunity to do so was lost in 2017 when then president Maithripala Sirisena insisted on removing the provisions within the National Human Rights Action Plan that sought to decriminalise same-sex sexual conduct. It was claimed that such an action is “culturally inappropriate.” Unfortunately, the culture under reference here is the Victorian value system bestowed by colonial occupiers 140 years ago which in turn based laws governing sexual conduct on Canon law.

The fact that law abiding citizens of this country have to live in fear of the law due to their sexual orientation is an abomination in this day and age. The State, the judiciary and the laws of a country should be there to protect vulnerable communities and not to cement inherent prejudices and discriminations of society. India with his rich diversity, numerous conservative religions and a ‘culture’ that predates Sri Lanka’s by many millennia has shown that it is possible for a society to evolve and reflect the values of non-discrimination and equality as suited to the modern times. Sri Lanka too must undertake such a journey in which fellow citizens are celebrated for their diversity and are reassured of their rights and dignity which are inherently theirs by birth. 

The repealing of section 365 and 365A of the penal code that criminalise same-sex sexual activity between consenting adults should be a priority. Until this initial step is taken there is hardly any “pride” in the legal system.