Photo courtesy of BBC
In a historic landmark decision, the UN Committee on the Elimination of Discrimination against Women (CEDAW) found that Sri Lanka’s criminalizing of same-sex sexual relations under section 365A of the Penal Code of 1883 was a human rights violation.
The decision was made in response to a case brought by Rosanna Flamer-Caldera, the founder of Equal Ground, to the Convention on the Elimination of All Forms of Discrimination against Women. Her case was supported by the Human Dignity Trust (HDT).
CEDAW is the body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women. The CEDAW Committee consists of 23 experts on women’s rights from around the world.
The CEDAW treaty is a tool that helps women around the world to bring about change in their daily life. In countries that have ratified the treaty, CEDAW has proved invaluable in opposing the effects of discrimination, which include violence, poverty, and lack of legal protections, along with the denial of inheritance, property rights, and access to credit.
While sections 365 and 365A of the Penal Code don’t explicitly state the offences are those specific to same-sex sexual relations, its holding that “carnal intercourse against the order of nature” and “acts of gross indecency” is often used against Sri Lanka’s LGBTIQ community. Offence under this section can lead to sentences of up to 10 years.
The case made by Ms. Flamer-Caldera documents the history of abuse and discrimination enabled by archaic Victorian era legislation and perpetrated by the Sri Lankan state against LGBTIQ communities and individuals in the country. The case also makes note of the personal experiences of Ms. Flamer-Caldera as a lesbian woman, Her case expands on how she suffered discrimination and abuse due to being a lesbian.
“As a teenager, she suffered from stigma associated with her sexual orientation and attempted to commit suicide when she was 17 years old. Not long after, she left Sri Lanka for the United States of America, where she could be open about her sexuality. She returned to Sri Lanka permanently in 1990. However, she found it difficult to find a job and to run her business being and dressing as who she is,” CEDAW committee’s statement noted.
It said that Equal Ground, Ms. Flamer-Caldera’s non-profit organization which she founded in 2004 has also faced continuous challenges. In 2013, a partner organization of Equal Ground was raided by the Criminal Investigation Department on the basis of the allegation that it was “spreading homosexuality”.
She also posits that the “criminalization of same-sex sexual activity has meant that the discrimination, violence and harassment faced by the lesbian, gay, bisexual, transgender and intersex community in Sri Lanka continue with impunity.” With police harassment of the community being a norm as well.
The video that surfaced last year of counsellor Ama Dissanayake at a training program for police cadets, preaching the deliberately misconstrued idea that “homosexuals” are those that prey on unsuspecting youth proves how homophobia and discrimination against LGBTIQ community is something systemically promoted within the state apparatus.
Even social media posts celebrating the win have been met with one of the many myths perpetrated about the community that freedom of sexual identity or orientation legitimizes pedophilia or incest.
To understand how impactful a victory this is for not just the LGBTIQ community in Sri Lanka but also for the global one, Groundviews spoke to Rosanna Flamer-Caldera.
What is the significance of this decision?
This decision by CEDAW is quite far reaching because it doesn’t just involve Sri Lanka but other countries where sex between lesbian and bisexual women is considered a criminal offence. So the ramifications of this are not just local but they are global as well.
Is the decision likely to change the status on the ground?
Although I am very happy about the recommendations made to the Sri Lankan government, will I see huge changes right off the bat? I highly doubt it since we’re going through such a huge crisis in the country. De-criminalizing same sex relations between consenting adults is a low hanging fruit. I feel like to change or repeal the law is just the will of the government and it will not make any major ripples in anyone’s life other than our lives. Our lives will be made that much easier and that much safer as well.
Do you feel society is more welcoming of LGBTIQ communities than it was before?
Overall there has been quite a change within the last four years or so. There are more people out and proud, there are more groups and individual activists and a lot more allies supporting the cause. But you will also find people who don’t agree with this still. You will have the occasional naysayers. But by and large, the yea-sayers are beginning to be the majority. That is a big stride we have made in Sri Lanka.
What has happened in the case Equal Ground brought against the conducting of a training program for the police where discriminatory remarks were made about the LGBTIQ community?
We haven’t won the case yet but what was positive was that the court decided that there was merit in the case and they gave us permission to proceed, so that was a huge win for us. They could have tossed it out and said there was no merit in the case but the fact that they didn’t was a very positive development. There was another case where the police brought a case against three men who had been charged under section 365A and who were subjected to anal examinations and beatings. We broke that story in November 2020 and it got a lot of media traction and international scrutiny; that was another win for the LGBTIQ community.
What is Equal Ground doing to fight misconceptions about the LGBTIQ community?
We proceed with work that is not just advocacy but also education and sensitizing and encouraging self-help so members of the LGBTIQ community can be fine about themselves rather than listening to the rhetoric and feeling ashamed and internalizing homophobia. We work on sensitizing young and upcoming parliamentarians, trying to bring change from the bottom up rather than the top down. We continue our work with allies, with parents and families of LGBTIQ communities, building allies and building up our strength.
