Photo courtesy of Gay Star News
Sri Lanka is a nation of paradoxes; the land where millions identify as Buddhists, has also seen decades of bloodshed and war due to ethnic conflicts. In the folds of its rich cultural tapestry, Sri Lanka shields patriarchal and misogynistic practices. Against raucous noise and impassioned pleas made about preserving the “sanskruthiya” of the country, the silence about thousands of cases of rape, harassment, and abuse is deafening. While the mere suggestion of including sexual and reproductive health education in school curriculums is enough to spark heated debates, news about sexual abuse of young boys inspires crude jokes and memes. Therefore, Sri Lanka continuing to use archaic Victorian laws, put in place by the British colonisers in 1883, while touting a Sinhala-Buddhist, nationalist rhetoric, is ironic, albeit unsurprising.
It does not matter that Britain itself has shed these laws decades ago. In fact, it has called its former colonies to repeal the anti-LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer/Questioning) laws introduced by its administrators in the 19th century, claiming that it regrets the introduction of such laws, and “the legacy of discrimination, violence, and death that persists [even] today” as a result.
Even Pope Francis, the leader of the Roman Catholic Church – a deeply conservative religious institution – expressed his support for civil unions between same-sex couples. This will undoubtedly lead to a remarkable shift in the debates about the legal, social, and religious recognition of non-heteronormative relationships.
Sri Lanka’s Legal Landscape
Unfortunately, despite global acceptance of the LGBTIQ community, Sri Lanka is one of the 72 countries in the world (almost half of which Commonwealth jurisdictions) that criminalise private, consensual, same-sex sexual activity among adults. Here, same-sex sexual relations among consenting adults are criminalised by Section 365 and 365A of the Penal Code, which states that “carnal intercourse against the order of nature” (in other words, any type of sex that is considered unnatural) and “acts of gross indecency” are criminal offences punishable by the law, carrying a sentence of up to 10 years. Section 365 and 365A do not specify that these offences pertain to same-sex sexual relations, but they are most often used against LGBTIQ individuals.
Further, according to Section 365, sexual intercourse needs to occur for it to be constituted as a crime in the eyes of the law. 365A, on the other hand, is more ambiguous; the term “gross indecency” can be interpreted in different ways and does not necessarily mean that a sexual act needs to take place for a charge to be placed. In other words, a simple act such as holding of hands by a same-sex couple in public can be constituted as an act of indecency and they can be arrested. This means that the police are free to judge what constitutes as “gross indecency” and arrest individuals – whether they are LGBTIQ persons or not. Further, in both these provisions, whether the acts are consensual or not is not taken into account.
In addition, the Vagrancy Law and Section 399 of the Penal Code regarding cheating by impersonation are also used against the LGBTIQ community in Sri Lanka, particularly against transgender individuals.
It is important to note, however, that while “acts of gross indecency” and “unnatural carnal intercourse” are criminalised, technically, diverse Sexual Orientations and/or Gender Identities/Expressions (SOGIE) are not outlawed. Fundamental rights recognised by the Sri Lankan constitution includes non-discrimination under article 12(2) which states that “no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, and place of birth or any one of such grounds”. At least on two occasions, the Sri Lankan government has committed before the United Nations that LGBTIQ persons are constitutionally protected, and non-discrimination on Sexual Orientation and/or Gender Identity/Expression is implicitly included under this constitutional provision. In fact, in 2014 the then government told the UN Human Rights Council (UNHRC) that discrimination based on one’s SOGIE was considered unconstitutional. In 2017, the Sirisena-Wickremesinghe government pledged to “ensure and strengthen respect for fundamental rights of all persons, including those from the LGBTIQ community, and address concerns raised in that regard.” In addition, with the intervention of the Human Rights Commission in 2016, the Registrar General’s Department and the Ministry of Health issued two circulars, to provide Gender Recognition Certificates (GRC) to transgender persons who wish to amend the gender assigned to them at birth in their official documents.
That said, the government thus far has not repealed anti-LGBTIQ laws, such as Sections 365 and 365A, and their existence invites and excuses discrimination, harassment, violence, and stigma against the LGBTIQ community. They are used to harass, threaten, and intimidate anyone who is seen to be deviating from the rigid, heteronormative social structures that govern the Sri Lankan society. In fact, the implications of the law, in Sri Lanka’s conservative context, go far beyond its legal scope. For instance, in September this year, a transgender individual was denied entry to a popular bar in Colombo simply due to her “appearance”. Unfortunately, this is not a one-time occurrence. There are also countless incidences where LGBTIQ individuals are stigmatised, harassed, and discriminated against; actions such as denying entry into establishments and public spaces, misgendering or using incorrect pronouns, hurling derogatory remarks, bullying and verbal abuse, and even physical violence are all too common in Sri Lanka. As a result of these laws, Sri Lanka’s LGBTIQ community largely lives in the shadows and instances of violations of their fundamental rights go unreported.
Arrests under 365 and 365A of the Penal Code
However, among all these challenges, perhaps one of the most concerning issues is the way the police wield these laws to persecute anyone who does not conform to the heteronormative standards.
In September, a local newspaper revealed that the Fort Magistrate’s Court was set to sentence two men who had confessed to engaging in same-sex sexual relations. The news garnered quite a bit of attention and stirred up controversy. However, this is nothing new; the police repeatedly persecute the LGBTIQ community in Sri Lanka, using several sections in the Penal Code – primarily Sections 365 and 365A.
In a recent joint press release, EQUAL GROUND (EG) and Human Rights Watch (HRW) revealed that in last few years, Sri Lankan police have not only arrested individuals perceived as engaging in “acts of gross indecency” in public spaces, but have raided private spaces such as hotel/motel rooms as well as people’s private residences.
In a Facebook post, LGBTIQ activist and lawyer, Aritha Wickramasinghe, highlighted another case where the police had arrested three gay men in a hotel room in Colombo in 2019. According to Mr. Wickramasinghe, the men were not engaging in sexual relations but they are being prosecuted for same-sex sexual relations because they had condoms in their wallets.
These are not isolated cases. According to the performance report (2018) of the Sri Lanka police, submitted to the Parliament, homosexuality is considered a “vice” which is defined as “offences that impact adversely on morality and well-being which is expected from the society.” The report reveals that, under this provision, the police has prosecuted 33 people for homosexuality in 2016, six in 2017, and nine in 2018. All of them are identified as men in the report.
Meanwhile, the Grave Crimes Abstract of the police paints a different picture. Problematically, it lumps together cases of “unnatural sex” or cases of same-sex sexual relations with cases of grave sexual abuse. In 2019, the report recorded 710 cases of “unnatural offences/grave sexual abuse”, but it is difficult to discern how many of these cases are consensual same-sex relations among adults and how many are cases of sexual abuse. This also shows that the legal system does not take consent, nor the age of consent, into account when considering sexual relations among same-sex adults. (Ironically, while the report does distinguish between cases of consensual same-sex sexual relations and cases of sexual abuse, it does dedicate a separate section to record cattle theft!) This highlights the vague, imprecise, and unclear nature of Sri Lanka’s laws criminalising same-sex sexual relations among consenting adults, leaving ample room for the police to abuse these laws and use them to target the LGBTIQ community.
Repercussions beyond Arrests: Forced Anal/Vaginal Examinations and Abuse
As bizarre as it sounds that Sri Lanka still criminalises adults for consensual sex, the arrests are not the most disturbing element of this issue. In the EG-HRW joint press release, it was revealed that, in the 2017 – 2020 period, the authorities forced medical tests that include anal/vaginal examinations on at least seven individuals to provide proof of homosexual conduct.
The press release notes that the exams “are a form of sexual violence as well as cruel, inhuman, and degrading treatment that can rise to torture.” It went on to call the government to end such abusive examinations. “Sri Lanka’s Justice Ministry should immediately bar judicial medical officers from conducting forced anal examinations, which flagrantly violate medical ethics as well as basic rights,” it said.
As pointed out by HRW, anal and vaginal exams have no scientific or medical basis and have been largely discredited as viable proof of “sexual activity” and international bodies such as the World Health Organisation (WHO) have called these examinations a form of violence and torture.
Much like Sections 365 and 365A, these examinations are also rooted in 19th century European practices and values. As such, it is somewhat unsurprising that Sri Lanka continues to use these 150-year-old medical science to probe into consensual sexual conduct among adults.
Apart from the anal/vaginal examinations, the arrested individuals are also subject to other forms of abuse. The press release notes that some of the men involved in the cases mentioned above have been whipped with wires and forced to take HIV tests, of which the results have been revealed in the courts.
Meanwhile, a HRW report in 2016 revealed that a significant number of LGBTIQ individuals in Sri Lanka, particularly transgender persons and gay men, have been detained without cause and suffered sexual and/or physical abuse by the police. Concerningly, the report also quoted several respondents who said that they have been raped by police officers. Most often, victims are those who do not conform to traditional gender norms. The HRW further noted that “these abuses [and violations] take place within a broader legal landscape that fails to recognise the gender identity of transgender people without abusive requirements; makes same-sex relations between consenting adults a criminal offense; and enables a range of abuses against LGBTI[Q] people by state officials and private individuals.”
Local advocates for LGBTIQ rights have also repeatedly expressed their concern about injustices against the community in the hands of the Sri Lanka police. “The recent evidence of violence and harassment against the LGBTIQ community by law enforcement here is gravely concerning,” said Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND recently. She went on to highlight that “Sri Lanka must respect its commitment to the UN to protect the fundamental rights of LGBTIQ people, including by ending arbitrary arrests and by banning torture and other mistreatment by the authorities.”
The existence of these anti-LGBTIQ laws, coupled together with their murky and vague nature, enables the police and lawmakers to enforce these laws as they see fit. Anecdotal evidence shows that most of such cases are not even brought to courts; instead, the police uses the threat of arrest to intimidate LGBTIQ individuals, often to solicit bribes. In addition, the trauma of such experiences prevents victims from reporting police abuse, harassment, and undue arrests. What this means is that, since most LGBTIQ individuals fear the police more than the courts, these laws impose a power imbalance and allows the very people who are meant to protect the law to break it.
As such, considering the inhumane, cruel nature of these laws and their implications to a just society, it is high time that the Sri Lankan government took measures to repeal decriminalise consensual, same-sex relations among adults.
The author is the Media and Communications Officer at EQUAL GROUND