We have to be visible. We should not be ashamed of who we are.” -Marsha P. Johnson. Have you ever wondered what the terms “LGBT” and “ally” mean? Knowing the difference between “sex,” “gender,” and “sexual orientation” is one way to be an ally.
The acronym “LGBT” stands for lesbian, gay, bisexual, and transgender. It encompasses both sexual orientation and gender identity (T). However, it is sometimes used as an umbrella term for anyone who does not identify as straight (heterosexual) or cisgender, so it is important to understand the term’s other sexual and gender identities. We define a few key terms and concepts below. These are just a few of the many terms used to describe sexual orientation, gender identity, and expression. A word of caution: Avoid imposing any of these terms on others. Allow others to identify themselves in ways that make them feel safe and true to themselves.
Same-sex sexual activity between men and women is illegal in Sri Lanka. Transgender people’s gender expression is also illegal. Sentences include a maximum of ten years in prison and a fine. In recent years, there has been evidence of the law being enforced, and LGBT people are regularly subjected to discrimination and violence.
Types of criminalization
- Criminalizes LGBT people
- Criminalizes sexual activity between males
- Criminalizes sexual activity between females
- Criminalizes the gender expression of trans people
Same-sex sexual activity is illegal under the Penal Code of 1883, which punishes acts of “carnal knowledge against the order of nature” and “gross indecency.” The maximum penalty under these provisions is ten years in prison and a fine. This law criminalizes both men and women. In addition to being subject to laws that criminalize same-sex activity, trans people may face prosecution under an impersonation law, which carries a maximum penalty of three years in prison and a fine.
During the colonial period, when English criminal law was imposed on Sri Lanka, the British left behind the 1883 Penal Code. Sri Lanka kept the law after independence and still criminalizes same-sex sexual activity today.
There is substantial evidence that the law has been enforced in recent years, with LGBT people frequently arrested. According to reports from civil society organizations, activists, and police records, numerous arrests occur each year, and those detained are frequently subjected to torture in the form of beatings and forced anal and vaginal ‘examinations.’ There is evidence that trans people are specifically targeted under the Vagrancy Ordinance and anti-impersonation laws. In recent years, there have been numerous reports of LGBT people facing discrimination and violence, including assault, harassment, extortion, and denial of basic rights and services.
Law and Legal Developments
2022
On March 23, the UN Committee on the Elimination of Discrimination Against Women issued a ruling finding that criminalizing same-sex sexual activity between women is a violation of human rights in a case brought by Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND, and supported by the Human Dignity Trust. It found that the Sri Lankan authorities had subjected Ms. Flamer-Caldera to gender-based discrimination and violence, as well as violated her right to access justice. The Committee urged Sri Lanka to decriminalize same-sex sexual activity and to take action to end the threats, harassment, and abuse suffered by Ms. Flamer-Caldera as a result of her identity.
2017
The government removed a proposal to decriminalize same-sex sexual conduct from the Human Rights Action Plan in January. According to State Minister of Finance Lakshman Yapa Abeywardena, the President has decided to withdraw “culturally inappropriate” proposals.
In November, Sri Lanka’s Deputy Solicitor General, Nerin Pulle, pledged to change the Penal Code in Sri Lanka following the country’s UPR review, stating, “The government is committed to ensuring that no provision in the law is applied in a discriminatory manner to persons of the LGBTIQ community.”
2011
A Bill of Rights draught prepared by a committee reporting to the Ministry of Disaster Management and Human Rights expressly included sexual orientation as a protected characteristic. The Bill was submitted to the Ministry of Justice for review following the National Human Rights Action Plan approved by Cabinet in 2011, but it has yet to be adopted.
Criminal Provisions
- Penal Code 1883, Section 365 Unnatural Offences
Section 365 makes ‘carnal intercourse against the order of nature’ a crime punishable by up to ten years in prison and a fine. It only applies to male-male intercourse.
- Penal Code 1883, Section 365A Acts of gross indecency between persons
Section 365A punishes acts of ‘gross indecency,’ as well as the procurement or attempted procurement thereof, with up to two years in prison and/or a fine. This provision applies to both acts between men and acts between women.
- Penal Code 1883, Section 399 Cheating by personation
Cheating “by pretending to be some other person” is punishable by up to three years in prison and a fine under Section 399 of the Penal Code. This provision can be used to discriminate against transgender people.
Enforcement
2022
A lesbian couple was arrested and detained by police in June, according to reports. The father of one of the women had objected to the relationship and filed a complaint with the police, which resulted in both women being arrested and brought to court. Before proceeding with the case, the Interim Magistrate at the Wattala Magistrate’s Court ordered the women to appear before a psychiatrist for a psychiatric evaluation in March. The Wattala Magistrate’s Court dismissed the case against the women after a successful revision application to the High Court of Negombo.
2020
According to the local NGO EQUAL GROUND and Human Rights Watch, at least seven people have been subjected to forced physical ‘examinations’ in an attempt to ‘prove’ same-sex conduct since 2017. According to the report, a local lawyer claimed to have represented six defendants charged with same-sex sexual activity in the previous year.
2019
Six people were arrested in October for same-sex sexual activity. Authorities subjected them to physical abuse while detained, including whipping with wires, forced anal examinations, and HIV tests.
2018
A police performance report published in 2018 publicized arrest and prosecution statistics on same-sex sexual activity, referred to in the report as “homosexuality,” in Sri Lanka. In 2016, 17 cases involving 33 people were filed, and all of them were prosecuted. In 2017, there were four cases involving six people (three of which were prosecuted), and in 2018, there were five cases involving nine people (all five prosecuted). All of those arrested were men. While this data shows a significant decrease in arrests, it also shows that those arrested are almost always prosecuted. The total number of convictions is unknown.
2016
According to the US Department of State report on Sri Lanka, police use the Vagrancy Ordinance to detain transgender people on suspicion of prostitution, and section 399 to harass people who express themselves in gender nonconforming ways. Criminal prosecutions under the criminalizing legislation, on the other hand, were uncommon.
2014
According to a shadow report submitted to the UN Human Rights Committee by EQUAL GROUND, there have been no convictions in Sri Lanka since its independence in 1948, despite the fact that police have used the laws to harass and extort money or sexual favors from LGBT individuals with impunity and have assaulted gay men and lesbians in Colombo and other areas.
Discrimination and Violence
2021
LGBT people face widespread discrimination in employment, education, healthcare, and housing, according to a UK Home Office Country of Origin report on Sri Lanka. They face online hate speech, emotional violence, and physical abuse.
2020
According to the US Department of State report, while prosecutions were rare in its opinion, police used the threat of arrest to assault, harass, and sexually and monetarily extort LGBT people. Transgender people were subjected to societal discrimination, including arbitrary detention, mistreatment, and barriers to employment, housing, and healthcare.
Following a visit to Sri Lanka, the UN Special Rapporteur on freedom of religion or belief reported that LGBT people reported that religious teaching was a significant factor in the community’s marginalization, resulting in deep personal struggles for those who had to reconcile their religious beliefs with their sexual and gender identities.
2017
In its shadow report to the CEDAW Committee, EQUAL GROUND described numerous cases of abuse, including:
- Arbitrary arrests and detentions, as well as abuse and violent police behavior: According to the report, Sri Lanka’s Vagrancy Order of 1842 is frequently used to harass, arrest, and detain people based on their appearance, citing the example of “masculine-looking” women who are perceived to be lesbians. It was also reported that police harassed and extorted money and sexual favors from LGBTI people in Colombo and other parts of Sri Lanka, as well as assaulted lesbian women.
- Violence against lesbians and bisexual women: According to the report, women who are abused by their partners in same-sex relationships are unable to rely on the Prevention of Domestic Violence Act, No.34 of 2005; if a woman does report these violations, she is subjected to harassment at the time of reporting.
- Forced marriage: According to the report, LGBT individuals in Sri Lanka are not protected from being forced into heterosexual marriages, and lesbian and bisexual women are frequently coerced into marriage and threatened with violence or removal of their property if they refuse.
- Discrimination in the workplace: According to the report, lesbian and bisexual women in Sri Lanka face discrimination in the workplace because of their sexual orientation. This manifests itself in the following ways: being assigned the worst shifts; being required to meet higher quotas than their peers; being forced to dress contrary to their gender identity; and being subjected to sexual harassment and/or termination of employment.
A coalition of civil society organizations, including the Women’s Resource Centre, reported to the CEDAW Committee in another alternative report that “transgender women sex workers who are arrested are frequently kept overnight and forced to dress like men while in custody.” They are frequently apprehended by police solely because they are transgender.”
The Women’s Media Collective also submitted a report to the CEDAW Committee on lesbian, bisexual, and transgender discrimination. Their report addressed, among other things, stereotypes, and harmful practices toward LBT women, as well as gender-based violence against LBT people. According to the report, the criminalization of consensual adult same-sex behavior and relationships exposes LBT individuals to abuse on multiple levels and prevents them from seeking redress for fear of legal repercussions.
2016
In August, Human Rights Watch released a report on gender identity and sexual orientation discrimination in Sri Lanka. The report included anecdotal evidence from LGBT community members who had faced discrimination and physical and sexual violence. One respondent, a 31-year-old lesbian, was harassed and threatened with death by her girlfriend’s father in late 2007, but she did not report it to the police. “I’m a criminal in this country,” she said. What is the point of wasting time speaking up when the laws are unequal and unjust? I simply do not want to be illegal.”
2014
Several instances of gay people being abused were described in a shadow report submitted to the United Nations Human Rights Committee by EQUAL GROUND, including physical abuse, threats, assault, harassment, rape, battery, as well as bribery, blackmail, extortion, and police violence.
2013
Gay rights activists in Sri Lanka were reportedly ordered to cease their protests ahead of the Commonwealth Heads of Government Meeting.
2012
According to the UNHCR, one gay rights organization, Companions on a Journey, was forced to close after being exposed in the press as a group “promoting homosexuality.” One of the group’s members, whose name was published in the paper, was evicted by his landlord. Police searched the organization’s office and questioned several gay activists for several hours.
Litigation in Sri Lanka
The Human Dignity Trust has backed its Sri Lankan civil society partner, EQUAL GROUND, and its Executive Director in her fight to end the criminalization of same-sex sexual activity between women. For eight years, the Trust represented Ms. Flamer-Caldera at the CEDAW Committee, representing the applicant and expanding on the findings of its report Breaking the Silence.
Penned by
Rtr. Imesha Udawatta
Rotaract Club of University of Sri Jayewardenepura
Leave a Reply