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The Court of Appeal on December 8, 2021 ordered issuance of notices in a writ application by which several activists sought an order against Sri Lanka Police to prevent discrimination and vilification of the lesbian, gay, bisexual, transgender and other similar (LGBT+) people. The petitioners argued that the police violated their right to equality guaranteed by the Article 12 of the Constitution of Sri Lanka by conducting a seminar for their officers where a ‘counsellor’ delivered hate speeches giving the impression that LGBT+ people are sexual predators. One of the respondents in tern argued that the counsellor was simply encouraging the officers to implement the law which criminalises homosexual acts.
The government’s ambivalent position in relation to the rights of LGBT+ people was demonstrated by numerous contradictory statements issued by various politicians in the past. In early September 2021, President Gotabaya Rajapaksa tweeted: ‘Today is #ZeroDiscriminationDay. As the President of Sri Lanka, I am determined to secure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance, and beliefs’. Several months later, the cabinet spokesperson, Minister Rambukwella, contradicted the President’s statement by announcing that LGBT+ rights are constitutionally not recognized in Sri Lanka. These statements without a doubt created confusion amongst the LGBT+ people as well as the government authorities. A legal discourse in this question is long overdue, and aiming to fill this gap, seven arguments are framed to establish that LGBT+ rights are in fact recognised under the Fundamental Rights (FR) framework of Sri Lanka, consequently proving that Minister Rambukwella is indeed wrong.
The LGBT+ rights in Sri Lanka overlap on two domains of law: criminal law and the FR. Sections 365 and 365 A of the Penal Code of 1887 criminalise ‘unnatural’ sex and ‘gross indecency’, and these provisions allow the police to arrest and prosecute consenting adults engaged in same-sex acts even in private spaces. In Sanath Wimalasiri case,[1] the Supreme Court upheld the conviction of two men engaged in oral sex in a vehicle but noted: ‘The contemporary thinking, that consensual sex between adults should not be policed by the state’. Since Article 16 of the Constitution paradoxically validates the continuous application of old discriminatory laws, the LGBT+ people will continue to face discrimination in the domain of criminal law, unless the Parliament takes steps to amend the Penal Code and other similar legislation, which criminalise certain sexual acts or gender expressions.[2]
What if a person of LGBT+ background is discriminated without establishing the occurrence of criminalised sexual acts, for example, discrimination at schools or workplaces simply because a person identifies him/herself as a gay or transgender person? The answer is that our Constitution protects the FR of LGBT+ people as outlined in the following seven arguments.
- The FR should be distinguished from the Criminal Law: The aforementioned penal laws often wrongly used as a justification to deny the FR of the LGBT+ people without distinguishing the difference between the two separate types of discriminatory actions of the public authorities: (a) discrimination by the police who are enforcing existing laws which criminalise certain sexual acts and (b) discrimination by other public authorities in absence of such criminalised sexual acts. The key argument of this article is that the provisions of the criminal law which prohibits certain sexual acts do not grant permission to the authorities outside the criminal justice system to discriminate LGBT+ people. For example, a gay person facing harassment in a Government workplace for simply being known as a homosexual, should be able to invoke the FR jurisdiction of the Supreme Court.
- Article 12 recognises LGBT+ people: Article 12(2) of the Constitution of Sri Lanka recognises LGBT+ status under ‘other’ categories of discriminatory grounds as per the text: ‘no citizen shall be discriminated on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds’. The phrase ‘or any one of such grounds’ makes this list of discriminatory grounds non-exhaustive; therefore, Article 12(2) leaves room for the Court to include other discriminatory grounds such as sexual orientation or transgender.[3] There is judicial precedent in this regard. The Supreme Court considered the HIV status of a child under Article 12 in Manuwel Dura Chandani v. Akila Viraj Kariyawasam,[4] although HIV/AIDS status is not a discriminatory ground explicitly included in the text.
- International law recognises LGBT+ people under ‘other’ categories: Our courts have referred to the international human rights jurisprudence to interpret domestic FR, therefore courts certainly can refer to the international law concerning non-exhaustive lists of discriminatory grounds established in the international conventions. In Salgueiro da Silva case,[5] a gay man challenged a decision of a domestic court which denied his parental responsibility exclusively on the ground of his sexual orientation. In this case the European Human Rights Court recognised LGBT status under ‘other’ categories of discriminatory grounds, although LGBT status was not explicitly mentioned in the European Convention of Human Rights. A similar judgement was passed in Atala Riffo case[6] by the Inter American Court of Human Rights.
- ‘Sex’ in Article 12(2) should be defined broadly to include LGBT+ status: Our courts can certainly adopt a broader interpretation of ‘sex’ to include sexual orientation, transgender and intersex status following the international authorities. In the recent US decision of Bostock case,[7] the majority of the Supreme Court concluded that sex based discrimination, prohibited under the Civil Rights Act of 1964, also includes discrimination based on gender identity and sexual orientation. A similar view was adopted by the Supreme Court of India several years earlier in NLSA case,[8] where the Court interpreted the terms ‘any person’ or ‘citizen’ in the FR chapter of the Constitution as ‘gender neutral’. In the subsequent landmark case, Navtej Singh Johar case,[9] this position was further cemented.
- The rights to equality before the law extends to right to life, right privacy and freedom of gender expression of LGBT+ people: In both aforementioned Indian judgements (National Legal Services and Navtej Singh) ‘identity’ of an individual was recognised along with the right to life and dignity. In NLSA case, Justice Sikiri noted that the time has come to ‘interpret the Constitution in such a manner, to ensure a dignified life of transgender people’ by categorically recognising the right to life and liberty with dignity, right to privacy and right against discrimination.[10] Justice Malhotra’s in Navtej Singh case noted: ‘LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution.’
- International soft law upholds the equal rights of LGBT+ people: Although non-ratified treaties or similar international protocols are not technically enforceable by the domestic courts due to the dualist nature of our human rights system, our courts have a history of relying on such soft law instruments in interpreting the FR. The most recent addition to the body of soft law on LGBT+ rights is the compendium of Yogyakarta Principles, and these principles guide the parties to apply the international human rights law in relation to sexual orientation and gender identity. Although these principles are non-binding indeed, they have been cited in various judgements across the jurisdictions including in India. Advocates of LGBT+ rights in Sri Lanka certainly can refer to these principles in our courts to adopt a progressive interpretation to the right to equality in the FR chapter of our Constitution.
- The Government of Sri Lanka has recognised LGBT+ rights in the international and domestic levels: The previously noted tweet of the President of Sri Lanka surely can’t be a random statement and possibly could be an extension to various attempts made by the government to appease the international community who frustratingly questioned the government’s track record on the ill-treatment of the LGBT+ people. At international level, in the Universal Periodic Review process, the Government of Sri Lanka submitted that ‘Article 12 of the Constitution […] protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities.’[11] At domestic level, recently the Attorney General said to have declined to prosecute three men who were arrested under section 365 of the Penal Code. One of the important steps taken by the government to recognise the transgender status is, making arrangements to issue a Gender Recognition Certificate (GRC)[12], and the GRC has been accepted by most of the state authorities issuing identification documents.
While we can present volumes of hair-splitting arguments to justify the claims of right to equality of the LGBT+ people in Sri Lanka, no progress can be achieved without seeing a significant positive shift in the mindset of the public. For this to achieve, LGBT+ people and their allies should come forward to win more hearts and minds of the public to make them understand that as adult humans, we too have the urge to be loved, and the right to love another adult to whom we are attracted to. Justice Chandrachud’s following statement in Navtej Singh case certainly guides us to construct our dialogue with the public: ‘Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right. The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing’.[13]
The author is a solicitor, lawyer and Senior Lecturer at the Faculty of Law, University of Colombo
[1] Galabada Payagalage Sanath v OIC Police Maradana ([2016] SC Appeal No.32/11; Supreme Court minutes 30.11.2016).
[2] Section 399 of the Penal Code which prohibits ‘cheat by personation’ has reportedly been used to arrest transgender persons[2] while provisions of the Vagrant Ordinance of 1841 have been used by the Police to arrest persons soliciting sex in public venues.
[3] Chandrasekaram, V. (2021). ‘There is more to bullying and harassment; Examining workplace violence within the context of fundamental rights jurisdiction of Sri Lanka’. In Law in defence of human integrity: principles and policies. Collected essays, University of Colombo, 125-137
[4] [2016] SC.FR.77/2016 SC Minutes 14 March
[5] Salgueiro da Silva Mouta v. Portugal. Eur. Court HR, judgment of 21 December 1999, Reports 1999-IX
[6] Atala Riffo and Daughters v. Chile. Inter-Am. Ct. H.R. (ser. C) No. 254, 30 (Feb. 24, 2012)
[7] Bostock v. Clayton County [2020] 590 US
[8] National Legal Services Authority v. Union of India (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013)
[9] Navtej Singh Johar & Ors. v. Union of India [2016] Crl 76
[10] NLSA case, para 114
[11] ‘List of issues in relation to the fifth periodic report of Sri Lanka: Addendum: Replies of Sri Lanka to the list of issues’ (17 September 2014) CCPR/C/LKA/Q/5/Add.1,
[12] Circular 01/34/2016
[13] Navtej Singh case, Paragraph 66