Advocacy, Colombo, Gender, Healthcare, Human Rights, Identity


11th June 2010 – 11th July 2010 marks PRIDE month in Sri Lanka. Historically stemming from the watershed Stonewall riots in 1969, which broke out when police raided a gay bar in New York City, it has now evolved into a global celebration of diversity. In recent years the South Asian region has become a prominent feature in PRIDE celebrations.  For example in the cities of Delhi, Bangalore, Calcutta, Mumbai, LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning) persons together with their heterosexual allies march the streets peacefully demanding they be recognised equally before the law. A year has now passed since India decriminalised homosexuality during PRIDE month by reading down section 377 of the Indian Penal Code that criminalised ‘carnal intercourse against the order of nature’ after an arduous and highly publicised 10 year campaign.

Closer to home, PRIDE month now in its 6th consecutive year aims to raise awareness about the issues faced by the LGBTIQ community in Sri Lanka and, to also celebrate diversity in Sri Lanka. One such event Rainbow Runway 2010 brought into the spotlight this hugely invisible community in Sri Lanka. Whilst the show was a colourful, fierce and strong representation of fashion and creativity the community that it represented remained all over Sri Lanka, unaware of a bold step forward demanding equal treatment before the law. Produced by EQUAL GROUND[1], the show opened with a plea by Executive Director, Rosanna Flamer Caldera to the Sri Lankan Government to emulate India and read down section 365A of the Sri Lankan Penal Code which effectively makes the LGBTIQ community of Sri Lanka criminals for being themselves.

In response to the requests made at the Fashion Show, Prime Minister D. M Jayarathna told an English daily newspaper that, “It is not wrong for them to seek rights. But we must know what exactly they want. They should communicate that to us and then we will see if it hurts our culture and take a decision accordingly.” He further stated that the Sri Lankan Government was open to dialogue with the gay community and the necessity to clarify what sort of “equal rights” they seek. In response to these statements EQUAL GROUND together with 2 other organisations with similar mandates have written to the Premier and sought an appointment to discuss the matter further.

The issues concerning the LGBTIQ community of Sri Lanka are largely unspoken about. This is due to a complex intersectionality of social and legal issues existing not only in Sri Lanka but in many South Asian countries. Section 365 of the Sri Lankan Penal Code (now amended to 365A) criminalised same sex activity between adults, whether consensual or not. The issue concerning the LGBTIQ community is distinctly different, understanding the inherent need for equal treatment before the law. It is one of consensual sex between persons of the same sex, in private. In 1995, an attempt to repeal this law resulted in section 365 being amended thereby bringing lesbians into the ambit of the law and its criminalisation, on the grounds that the existing law applicable to men only, was gender biased.

It is perhaps arguable that few cases are actually prosecuted under 365A, and thus the existing law does not discriminate on those grounds. It is strongly submitted that none should be prosecuted under this draconian law. The mere existence of the law leaves ample room for human rights violations based on sexual orientation and gender identity to be commonplace. Violence and harassments in all forms present themselves to LGBTIQ individuals in Sri Lanka on a daily basis. Unfortunately the perpetrators of such violations are not reported due to a multitude of reasons, for instance the fear of the victim’s sexual orientation, something that they have not yet particularly come to terms with, being public knowledge. Furthermore, when persons within positions of authority perpetrate such gross violations the impunity validates this treatment of LGBTIQ individuals, which drives them further underground.

Many organisations presently working in this field constantly grapple with issues, whilst for instance a safe space or psycho social support can be provided, protections can only be put into place minimally due to the lack of legal recourse. Protecting identities is prioritised over seeking, if any, recourse at the victim’s request that leaves organisations frustrated with the existing system.

From an International Law perspective, it is a clear that criminalising same sex conduct between consenting adults automatically carves out a group for discriminatory treatment. Many argue that the act of ‘sodomy’ that is criminalised and explicitly stated, yet it is submitted here that the immediate carving out of a separate group based on a conduct associated with them in some instances together with interpretation by national courts discriminates not only the conduct but the group, in this instance LGBTIQ persons.[2] This is lies in contradiction that all Human Rights are universal, enshrined in the Universal Declaration of Human Rights.[3]

From a health perspective, healthcare professionals ignorant and insensitive to persons of varying sexual orientations and gender identities are numerous; whilst this is grossly negligent it also impedes significantly the basic human right of enjoyment of the highest attainable level of health. The LGBTIQ community battles with hospitals and clinics that misdiagnose, mistreat or entirely deny proper medical care to LGBTIQ persons. Some medical professionals even claim it is a treatable mental and physical disturbance and extort LGBTIQ persons in a state of distress about their sexuality promising to avail them not only of the so called disease but also the consequential problems that arise within family units. A recent report[4] by Anand Grover, UN Special Rapporteur for Health states that the criminalisation of same sex behaviour between consenting adults is an impediment to attaining the highest attainable level of health but also because it infringes on other Human Rights namely the right to equality and privacy.

Respecting or celebrating diversity is not a Westernised concept. This is epitomised in the Delhi High Court’s Judgement, India’s Stonewall, in June 2009 which decriminalised homosexuality. Firstly, India truly embodies grand characteristics of a Democracy. The Constitution is viewed as a living document and is interpreted to include the LGBTIQ community based on evidence presented to the Court, one that is subject to change when mandated by the people the Constitution serves. Further it is argued that whilst a majority may not be in favour of LGBTIQ community for whichever reason, it is not a reason to exclude them and strip them of rights. Secondly, India being one of the world’s culturally and religiously diverse countries, views the issue secularly which ironically results in the small religious minority groups that opposed decriminalisation, being protected by the effects of the decriminalisation. Lastly, the issue is viewed as one of minority rights and its effect; the horizontal application of rights has had an impact of great significance to minority groups in India.

Looking towards the future, much needs to be accomplished. The movement in Sri Lanka is almost 20 years old and it has certainly moved at a slow and steady pace forward. It is intended that PRIDE and the advocacy work done not only by the gay movement in Sri Lanka, but also in tandem with the civil society organisations and partner government organisations that the community is afforded rights that are undeniable. Decriminalisation of section 365A of the Sri Lankan Penal Code is crucial. The dignity afforded to those who are able to live in their own country as a citizen and not a criminal is invaluable from all perspectives. Further, the right to seek and attain the highest level of Health without prejudice is undeniable. Finally inclusion into already existing legal frameworks for instance, anti discriminatory laws and protections from violence would afford the LGBTIQ community of Sri Lanka a considerable step forward to living full lives.  However, whilst legal recourse is the tangible yet immediate need in Sri Lanka, what is more challenging is the shift necessary in the attitudes and the consequential treatment of society towards the LGBTIQ community in Sri Lanka that will eventually mandate the peaceful integration of the LGBTIQ community into an appreciated, supported and valued group of a Sri Lankan identity.

[Editors note: Also view Celebrating a lesbian, gay, bisexual, transgender, intersex and questioning Sri Lanka which features Rosanna Flamer-Caldera is the Executive Director of Equal Ground.]

[1] EQUAL GROUND is a non profit organization operating in Sri Lanka for approximately 6 years. It’s mission is to seek “EQUALITY FOR ALL SEXUAL ORIENTATIONS AND GENDER IDENTITIES: HUMAN RIGHTS FOR EVERYONE.”  They are unique in their approach to rights, in that they are the only organization in Sri Lanka that includes ALL sexual orientations and gender identities – not merely the marginalized ones. This approach is perhaps one of the biggest strengths of EQUAL GROUND as the inclusion of heterosexuals into their movement is “leading by example” says Executive Director, Rosanna Flamer Caldera.

[2] It is further submitted that if this was not the case, all persons engaging in carnal intercourse ie anal sex and/or oral sex whether heterosexual or homosexual would in fact be criminals. It is clear that the law was designed and intended to target homosexuals.

[3] Other International Instruments include the Preamble of the International Covenant on Civil and Political Rights (ICCPR), Article 1 of the European Convention for the Protection of Human Rights and Freedoms, Article 1 (4) of the Arab Charter on Human Rights and Article 19 of the African Charter on Human and Peoples’ Rights.

[4] Statement by Mr. Anand Grover, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, at the 14th session of the Human Rights Council-