SUBMISSION ON LGBTIQ PERSONS AND TRANSITIONAL JUSTICE MECHANISMS

Photo courtesy 30 Years Ago

TO THE ZONAL TASK FORCE AND THE CONSULTATION TASK FORCE FOR RECONCILIATION MECHANISMS

Download glossary of terms here, which was included as part of the submission.

Introduction

We present this submission as individuals self-identifying as Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer (LGBTIQ), as family members and friends of LGBTIQ people, and as individuals/communities coming forward in support of Sri Lankans who wish to acknowledge and break the silence surrounding a people whose rights have been denied through the mechanisms and institutional structures of a democratic state.

Context

The war created a climate of insecurity which was attributable in part to decades of militarisation and the resulting breakdown of democratic norms and the rule of law. Militarisation creates and boosts very stark models of masculinity and femininity and forces people into adopting extreme binary gender conforming roles. This is particularly limiting for people who do not conform to such gender roles.  In addition, militarisation paves the way for these rigid gender norms to be connected to reproductive sexuality (where sexuality is confined to the logic of reproduction–within marriage and the monogamous heteronormative family unit) and its role in the rhetoric of ethno-nationalism. The difficulty in asserting sexual and gender diversity and expression that differ from the prescribed norms was evident during the war and continues today. There were instances where people who were assigned female at birth but identify as male faced a challenging time when they were stopped for routine checks by military personnel at checkpoints. This occurred when their identity cards were checked and the gender on the document was found to be recorded as female, which was perceived to be at odds with their visible gender presentation as male. It should be emphasised that this authentication and verification of identity (including gender identity) in the context of militarisation, posed problems for a range of subjects and not only for the people we mention above.

In this way, militarisation led to the reinforcement of heteronormativity and heteropatriarchy, and forced people to be covert about their sexuality and gender identity. For instance, on 01 August 2016, the media reported that a soldier had been hospitalised as a consequence of sexual abuse after having spent three days with a Buddhist monk whom he had befriended.^[1] While little is known about this particular case apart from what has been reported in the media, there are many other media reports and cases referred to those who work with LGBTIQ people that raise issues around the stifling of discussion, practices and performance of gender and sexuality.^[2]

During the war, groups and organisations working on LGBTIQ rights were afraid to work openly and visibly in Colombo, and could not even envisage working in areas under military control. Organisations that continued to work on sexual rights came under scrutiny and surveillance. The surveillance of NGOs and human rights organisations and activities involved the requirement of submitting work plans to the government. This created pressure and forced LGBT groups to work within constraints and to seek creative means to continue working covertly. This proved detrimental to the sexual health practices and rights of society in general.

Human Rights Defenders and other local and international officials have also been targeted by the media and publicly humiliated for their work and commitment in areas of sexual health and human rights.^[3] These media references allege that “these individuals promote vices and aggressively promoted their ideology which has slowly started hitting the foundations of Sri Lankan society especially the family unit”. ^[4]

The destructive nexus between militarisation and heteronormativity could be seen at the highest levels of government. Political rivals resorted to questioning the masculinity and sexual normality of their opposition and dissenters, with a view to discrediting them and delegitimising and diffusing arguments. Power (which also meant the relative power of one ethnic group over another) was ranked according to crude models of masculinity that were ‘strong’ (read conventionally gendered male and heterosexually attracted) or ‘ponna’ (derogatory Sinhala for male homosexual, which is also an insulting shorthand for lacking in masculinity). An archetype was created of a male leader who was both head of the family and of the nation (the Sinhala ‘king’ and ‘patriarch’) and this model of normative Sinhala masculinity was invested with a steadying influence, in a story that said that after decades of war, the country was finally safe and could progress in the hands of a ‘real (Sinhala) man’. This representation assigned virtually supreme power to whatever was designated as ‘normal’ masculinity and ‘normal’ male sexuality (in intersection with meanings of class, ethnicity and religion) and created a climate of contempt for homosexual men and gender non-conforming people. Women were seen in a one-dimensional way in terms of their gender and sexuality – denied agency and framed in relation to their connection to (heterosexual and normatively masculine) men. They were relegated to stereotypical heteronormative and heteropatriarchal roles as wives and mothers in the private domain, praised for being guardians of the home; for bringing up healthy, normal families on the patriarchal model; and for ensuring the continuity of their ethnic groups. In other words, what was prescribed for them was reproductive sexuality, where they had to adhere to bourgeois and ethno-religiously-framed norms of sexual respectability. This entailed not recognising that they had sexual agency as heterosexual women, and not seeing themselves as desiring subjects outside of sexual relations with men (i.e. one man), marriage and family.

This also paved the way for aggressive moral conservatism, especially with regard to the normalisation of standards and proper behaviour. Moral conservatism was (and continues to be) on the rise, especially with regard to normalisation of standards of proper behaviour for women (for example, prescribing standard dress codes for women working in the public sector and schools, and for mothers visiting their children’s schools).

Homophobic and transphobic articles repeatedly appear in the media, especially in the print media, including in some State owned newspapers and those that follow State policy. Radio and television talk shows often feature homophobic content, including casual homophobic comments such as jokes. Reporters, editors and radio presenters are rarely (if ever) called out for their bias in these instances. These references constitute a means by which society strengthens its resistance to recognising LGBTIQ communities and continues to isolate, ridicule and justify acts of violence against members of such communities. Complaints to the Press Complaints Commission have in most cases been unsuccessful and have even created a backlash.^[5]

Rivira, a Sinhala newspaper, published a series of articles in its Sunday editions criticizing the work conducted by an LGBTIQ organization in Sri Lanka. The articles maligned all LGBTIQ people and incited violence against the LGBTIQ community. Excerpts of these articles included quotes such as: “… ulterior motive of harming the cultural decencies and morality of Sri Lanka”, and compared LGBTIQ persons to “mangy dogs who are involved in this dastardly low and heinous acts [i.e. homosexual sex].” In one of the articles published on 11th September 2011, an LGBTIQ organization was identified by name, and its address was published with photographs of their field workers. The article also called on parents to take extreme precautions to protect their sons, based on the misleading and homophobic notion that if a man is gay, he must necessarily be a paedophile too.^[6]

Ensuring Non-Recurrence

The government of 2015, under the leadership of President Maithripala Sirisena, gained victory at elections on a pledge of good governance. Most importantly, the President, Prime Minister Ranil Wickremesinghe, and the Minister of Foreign Affairs, Mangala Samaraweera, have expressed commitment to securing long-term peace and reconciliation premised on principles of good governance with a focus on strengthening democratic institutions and ending impunity and inequality. The process of constitutional reform, was strengthened by gaining insight from the public through consultations. This would hopefully see a full enjoyment of rights in all structures of transitional justice. These measures could be seen as indicative that Sri Lanka is enriching its focus on democracy. The time is apt now to put in place structures, policies and personnel that have a common commitment to ending impunity and observing the Rule of Law. This would mean hearing, involving and addressing the needs of minorities and victims, which include LGBTIQ people as well. The State must be open to recognising the fact that prevailing laws perpetuate the stigmatisation and victimisation of LGBTIQ people, and it must take steps to make reforms and address these injustices.

In December 2015, vehicles started sporting stickers with ‘Sinhale’ (Sinhala Blood) written on them, which depicted the lion and the sword from the Sri Lankan National Flag. The lion mythology around the lineage of the Sinhala people was used to enforce Sinhala Buddhist (majoritarian) ideology at a particular political moment.  There were incidents of houses and shops owned by Muslims being spray painted with the same words. Since April 2016, threats and verbal abuse against LGBTIQ people have been reported from people claiming to stand for ‘Sinhale’ ideology; they have also been highly vocal on social media. The media reported that the Sinhale campaign is supported by at least one opposition parliamentarian. The High Commissioner for Human Rights, Zeid Ra’ad Al Hussein voiced his concern with regard to Hate Speech spread by continued aggressive campaigns in social media and other forms (such as the “Sinhale” bumper sticker campaign) that stoke nationalism against ethnic, religious and other minorities.  “In recent months, incidents targeting the Muslim community, evangelical Christian groups, and LGBT groups have continued to be recorded.  The High Commissioner encourages the Government to be more forthright in combating such discriminatory violence, including through appropriate legislation to regulate hate speech and incitement to violence.^[7]”

On the legal front, one of the most problematic events during war time took place following the effort, in 1995,  to repeal Sri Lanka’s ‘anti-sodomy’ law, Section 365A[8] of the Penal Code, which can be read to criminalise homosexual sexual activity between consenting adults in private and in public. These efforts resulted in a step backward: instead of the repeal of the law, the provision was amended so that the category of perpetrator was made gender neutral (where previously the presumed offence had explicitly applied only to sexual activity between ‘male persons’) and made to apply to women as well—an apparent effort to apply the law equally to both sexes. Efforts to prevent the application of Section 399 of the Penal Code towards transgender persons were also ineffective. Struggles to repeal the Vagrants’ Ordinance which is used to target women engaged in sex work as well as lower and middle income transwomen (often on the pretext that they are soliciting) were futile. Section 3(2) of the Vagrants’ Ordinance enables a police officer to arrest a person determined to be idle and disorderly without a warrant, and many transgendered persons are victimised as a result of this law.

Institutions and processes for transitional justice

Enabling Environment

Given that LGBTIQ persons, too, were victims during and after the war years, we ask that any processes and mechanisms for reconciliation in Sri Lanka should be open and conducive to receiving submissions and complaints from members of the LGBTIQ community, in a manner that encourages them to come forward with their narratives of violence, abuse and violations; that ensures them of full acceptance of their choices; and that provides security in the eventuality that their submissions are met with contempt.

 

Human Rights Organizations working with the LGBTIQ community have long documented that LGBTIQ people belong to communities affected by war, whether combatants or non-combatants, civilians or members of security forces. However, laws and constitutional provisions exclude them from reporting crimes, abuse and discrimination that they have faced, as they fear that this would invite further scrutiny on their lives and bring them to the notice of law enforcement authorities.

During and in the aftermath of the war, perturbing reports have continued to emerge of rape being used as a means of torture against men and women^[9]. As reported by the International Truth and Justice Project in 2016, “Human rights groups in Sri Lanka have focused on sexual violence as a problem for women. However, two-thirds of our post-war torture victims are male. Anal rape of male detainees by the Sri Lankan security forces appears prevalent and is an even less recognised issue than vaginal and anal rape of women”^[10]. 

Taking all this into consideration we respectfully call

1. For the continued recognition of the gravity of the crime of rape of women; at the same time, we also call for the recognition of the existence and seriousness of the crime of rape of men especially during conflict and war, by including a Penal Code provision that is separate from the one that addresses the rape of women, to legally define and recognize the crime of rape of men, along with accompanying punitive provisions. This would go some way towards empowering men to report the sexual crimes they have faced and would also strengthen engagement with the Truth Justice Reconciliation and Non-recurrence Commission.

2. For officials and personnel working within the Transitional Justice frameworks and mechanisms (not limited to counsellors) to be sensitised through appropriate training to adopt a non-discriminatory approach and to be accepting of people with diverse gender expressions and sexual orientations. This will inspire confidence in any truth seeking or accountability mechanism.

3. For organizations and structures, and especially laws and policies, that are put in place to serve victims and others who collaborate with the justice system and the Transitional Justice mechanisms to identify and provide for the possibilities that next-of-kin, complainants may not be relatives or spouses of the victims, especially in cases or LGBTIQ people. The laws and the policies especially should not be restrictive. For instance while it is positive that the Office of Missing Persons Bill[11] provides for complainants to be any other person, and also for the Office to provide information to “any other complainant”, the restrictive definition of the term “relative” to mean a spouse or blood relative restricts LGBTIQ partners seeking redress, which is discriminatory. We would at this point like to recognise the importance of official recognition for female-headed households in the context of the conflict, at the same time as we also ask that the provision of reparations and services be not only limited by identifying households within a rigid structure of traditional definitions of family, and that they be open to family structures that are not heteronormative.

4. For organisations and individuals working with sexual and gender minorities to have the freedom to work openly and visibly to support their engagement with Transitional Justice mechanisms, without fear of social and legal reprisals. This could include appropriate law enactment and enforcement against hate speech targeted at minority communities, especially the LGBTIQ community.

5. For the vetting of personnel and officials involved in any arm of the transitional justice processes, to ensure that offenders accused of sexual and gender based violence are not part of these processes, and for a whistleblower mechanism to be established that would take action against such offenders where there are credible complaints of abuse of power with regard to sexual and gender based violence.

6. For systems of complaint recording to be established, ensuring that there is provision to address cases of actors who violate these basic standards in receiving testimony or providing redress and services to any of the Transitional Justice mechanisms.

We ask for recognition of the fact that even giving testimonials of violence and violations of human rights and asking for justice and reparations are affected by the attitudes of personnel involved in the process as well as the existence of discriminatory laws and policies pertaining to the policing of sexuality and gender. This institutionalised discrimination inhibits and dissuades people from giving evidence for fear of being exposed, shamed, socially stigmatised, discriminated against and legally victimised.  The report of the Public Representations Committee on Constitutional Reforms^[12]  stresses the responsibility of the State to accord due protection to all vulnerable groups including persons with diverse sexual and gender orientation. In this light, we ask:

7. For explicit Constitutional provisions to protect the rights of people with diverse sexual orientations and gender identities, through the extension of equality and non-discrimination provisions on the basis of sexual orientation and gender identity. This was suggested in the Report of the Public Representations Committee on Constitutional Reform as an inclusion to the Bill of Rights with the following clause – No person or group shall be discriminated against on the grounds of race, religion, caste, marital status, maternity, age, language, mental or physical disability, pregnancy, civil status, widowhood, social origin, sexual orientation or sexual and gender identities.

8. For the repeal of the following laws that continue to expose LGBTIQ people to abuse and harm

• Section 365 and 365A of the Penal Code
• Section 399 of the Penal Code
• Vagrants’ Ordinance

List of Signatories

1. Acushla Wijesinha
2. Ananda Galappatti
3. Anushaya Collure
4. Aritha Wickramasinghe
5. Dr Asha Abeyasekera
6. Ashan Munasinghe
7. Balasingham Skanthakumar
8. Bhavani Fonseka
9. Buddhima Padmasiri
10. Deanne Uyangoda
11. Denver Peterson
12. Dr Darshi Thoradeniya
13. Dini Kurukulasuriya
14. Prof Dushyanthi Mendis
15. Dr Eshani Ruwanpura
16. Gava Bolonghe
17. Gowthaman Balachandran
18. Hans Billimoria
19. Harean Hettiarachchi
20. Dr Harini Amarasuriya
21. Himali Silva
22. Jake Oorloff
23. Dr. Kanchana Ruwanpura
24. Dr Kaushalya Perera
25. Kiruthika Thurairajah
26. Lakshan Dias
27. Mahishi Ranaweera
28. Marcus Kenny
29. Marini Jayawardene
30. Melisha Yapa
31. Mohandhas Thangarajah
32. Neloufer De Mel
33. Niluka Perera
34. Paba Deshapriya
35. Praveena Rajkobal
36. Ramani Muttetuwegama
37. Roshan Dela Bandara
38. Ruki Fernando
39. Ruvanthi Sivapragasam
40. Sachini Perera
41. Sanjana Hattotuwa
42. Sarala Emmanuel
43. Saranga Anjana Wijerathna
44. Sepali Kottegoda
45. Sharika Jayawardene
46. Sharni Jayawardena
47. Sherman De Rose
48. Dr Shermal Wijewardene
49. Dr Shyamani Hettiarachchi
50. Steve De La Zilwa
51. Subha Menike Wijesiriwardene
52. Suhithakumar Maanikkavasagam
53. Sunela Jayewardene
54. Suralini Fernando
55. Thakshala Tissera
56. Thenu Ranketh
57. Thiyagaraja Waradas
58. Thyagi Ruwanpathirana

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^[1] http://www.adaderana.lk/news/36312/monk-arrested-over-sexual-assault-on-soldier

^[2] http://www.dailynews.lk/?q=2016%2F08%2F03%2Flocal%2F89415

^[3] The Editorial, Daily Mirror, July 29,2010

^[4] Ibid

^[5] Daily Mirror Editorial ‘A Tide Against The Natural’ 29 July 2010; Sunday Divaina ‘Women Disguised as Men’ 17 May 2009; Sunday Divaina, ‘Pudding Boarding, Sardine Boarding’ 2 May 2010; Sunday Divaina, Young Men Consuming the Forbidden Fruit’ 9 May 2010; Divaina, ‘Admitted to Male Ward due to Indistinguishable Clothing’ 17 August 2010; The Sunday Leader, ‘Karu will save us from Less-Be-Annes’, 15 August 1999; The Sunday Island, Letters to the Editor, ‘Lesbian Conference in Colombo?’ 20 August 1999;

^[6] The Rivira 18^th September 2011 ( http://www.rivira.lk/2011/09/18/janaindex.htm)/ http://www.rivira.lk/2011/09/18/vimarshana.htm/The Rivira 09th October 2011/ http://www.rivira.lk/2011/10/09/vimarshana.htm

The Rivira 30th October 2011/http://www.rivira.lk/2011/10/30/vimarshana.htm

^[7] 2016, June, High Commissioner for Human Rights, Oral Update to the Human Rights Council A/HRC/32/CRP.4

[8] http://esn.ac.lk/gee/images/pdf/Penal-Code-Amendment-Act-No.-22-of-1995.pdf

^[9] Report of the OHCHR Investigation on Sri Lanka, A/HRC/30/CRP.2, September 2015, A

^[10] 2016, International Truth and Justice Project, Silenced : Survivors of Torture and Sexual Violence in 2015 http://www.itjpsl.com/wp-content/uploads/2015/07/Silenced_jan%202016.pdf

[11] http://documents.gov.lk/files/bill/2016/6/93-2016_E.pdf

^[12] http://www.yourconstitution.lk/PRCRpt/PRC_english_report-A4.pdf