Photo courtesy of Human Rights Watch
Earlier this month, a news report revealed that a 22 year old woman had filed a complaint with the Human Rights Commission against the Welisara-Mahabage police. She alleged that her parents had subjected her to severe abuse after learning that she was a lesbian and in a consensual, same-sex relationship. She was locked up in her house for several weeks and taken to several Catholic priests in an attempt to “convert” her into heterosexuality. According to the news report, one of the priests had advised her parents to force her into a marriage and take away her financial independence to “cure” her.
With the help of a friend, she had manged to make the police aware about her situation, but the tables turned when she was brought into the station. After her parents informed the police that she was being confined due her sexual orientation, the police illegally confiscated her personal belongings and attempted to subject her to physical examinations against her will. Her lawyers from iProbono said that the police attempted to subject her to a psychiatric evaluation as well as a physical examination by a Judicial Medical Officer in order to prove that she suffered a mental illness as a result of her sexual orientation.
This is not an isolated incident. In the wake of Pride celebrations last month, the Sunday Times reported that a lesbian couple had been arrested by the Akkaraipattu Police due to their sexual orientation. It was revealed that one of the women was from India and she was attempting to help her partner migrate to India so they could get married. They were arrested when the father of the Sri Lankan woman lodged a complaint against them at the police. Subsequently, the court ordered the two women to be sent to the Kalmunai Base Hospital for a psychiatric evaluation.
Research and anecdotal evidence show that women who love women (including lesbians, bisexual women, transgender women and queer women) are often subject to discrimination, harassment and violence at home, workplaces and public spaces due to their sexual orientation. Families often try to subject them to conversion therapies (both by medical and religious means) and/or force them into heterosexual marriages to “turn them straight.” It is difficult to keep track of and document these incidents as often they happen behind closed doors. Nevertheless, coercion into unwanted marriages happen with alarming regularity as families see marriage as a way to avoid the stigma attached to victims’ sexuality. Often, their financial independence is also taken away by forcing them to quit their jobs and not allowing them to leave the home, resulting in the victims unable to seek help. And in instances legal help is sought, the police often invoke Section 365 and 365A of the Penal Code to arrest the victims and harass them further, even forcefully subjecting them to psychiatric evaluations and physical examinations.
The current legal and social context
Sri Lankan society is structured on strict gender roles and responsibilities where anything that strays from heteronormative and binary gender standards is considered abnormal, deviant and deserving of punishment/discrimination. Due to Sri Lanka’s colonial past, same sex sexual relations between consenting adults are criminalised by Sections 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 law, carrying a sentence of up to 10 years. In 1995, human rights activists attempted to repeal the Penal Code but instead of decriminalising same sex sexual relations between consenting adults, the amendment substituted the word males in the original legal text with the gender-neutral term people, thereby criminalising same-sex sexual activity between women as well.
Statistics by Human Dignity Trust (HDT) show that Sri Lanka is one of 70 countries that criminalises private, consensual, same-sex sexual activity. It is also one of 42 countries that criminalises private, consensual sexual activity between women using laws against lesbianism, sexual relations with a person of the same sex and gross indecency.
However, it is important to note that while Sections 365 and 365A can be interpreted to criminalise same-sex sexual relations, they do not criminalise diverse sexual orientations and gender identities/expressions. In other words, it is not a crime to be gay, lesbian, bisexual, transgender and/or queer in Sri Lanka. Sri Lankan authorities, particularly the Attorney General’s Department, have on multiple occasions assured to international bodies that the constitution implicitly grants equal rights to LGBTIQ persons and protects them against discrimination.
Nonetheless, it is not surprising that these legal and cultural biases against queer people, especially queer women, have bled into all facets of society including the medical and mental health professions.
Conversion or corrective therapy
Last year, EQUAL GROUND received a complaint from a gay man in his mid-twenties, who sought treatment at a mental health clinic in a state run hospital. The psychiatrist who was supposed to treat his mental health issues reprimanded him, claiming that homosexuality was unnatural and it was the cause of all his problems. He went on to pressure Kamal to change himself if he wants to be helped and claimed that no medical professional in the world would be able to assist him with his mental health issues if he continued to be gay.
It is common for certain hospitals and clinics in Sri Lanka to provide conversion or corrective therapy – the pseudoscientific practice of trying to change an individual’s sexual orientation and gender identity from LGBT to straight (heterosexual). For instance, Suwasevana Hospitals (Pvt) Ltd in Kandy lists homosexuality and transvestitism as conditions that can be treated with its medical hypnosis service.
While Sri Lanka continues to marginalise its LGBTIQ population, global psychiatry and medical bodies have largely accepted that diverse sexual orientations and gender identities/expressions are not mental or physical illnesses. The Diagnostic Statistics Manual (DSM) published by the American Psychiatric Association (APA) – what is considered the standard classification of mental disorders – removed the diagnosis of homosexuality from its second edition (DSM II) in 1973 – nearly 50 years ago. Further, the World Medical Association (WMA) has strongly emphasised “that homosexuality does not represent a disease, but a normal variation within the realm of human sexuality.” Meanwhile, the World Health Organisation’s (WHO), International Classification of Diseases (ICD) removed homosexuality from its list of diseases in 1990 and states that “sexual orientation by itself is not to be considered a disorder” (ICD 10); in 2018, it announced that being transgender is no longer considered a mental disorder in its latest ICD, published in 2019 (ICD 11). Other prominent mental health organisations have also affirmed that homosexuality and being transgender/gender-variant are not mental disorders or illnesses.
Even the Sri Lanka College of Psychiatrists (SLCP), the country’s main medical body on mental health and psychiatry, last year stated that it does not consider homosexuality a mental illness and called for its decriminalisation. “The Sri Lanka College of Psychiatrists would like to categorically state that we do not endorse the view that homosexuality is due to a disease of the mind or body,” it said. “Modern day psychiatrists do not identify or diagnose homosexuality as a mental illness or treat it as such. This myth that homosexuality is a mental illness is not in keeping with the evidence-based science practiced by our membership,” the SLCP added. “We would like to strongly urge the authorities to change article 365 of the penal code which states that homosexuality is a criminal act. This archaic law should be abolished and homosexuality decriminalised in Sri Lanka,” the statement said.
Since non-heteronormative sexual orientations and gender identities are not considered as mental or physical illnesses or a disorder, there is nothing to cure or correct. In other words, all sexual orientations and gender identities/expressions are natural and valid. Conversion and correction therapies are considered pseudoscientific practices and are widely discredited in the medical field. Also, there are no credible scientific studies that prove that conversion therapy is effective in any way. Mainstream international medical bodies have acknowledged the potential harm and ineffectiveness of such therapies/cures. For instance, in 1998, the American Psychiatric Association listed depression, anxiety, and self-destructive behaviour as some of the key risks of such corrective/conversion therapies. In fact, the United Nations (UN) has stated that such practices can amount to torture or cruel, inhuman, or degrading treatment or punishments.
Earlier this year, Samagi Jana Balavegaya (SJB) MP, Rohini Kaviratne, tabled a private member’s motion to ban conversion therapies by unregistered clinics in Sri Lanka. However, there has been no updates on its implementation or the next steps so far.
CEDAW ruling on Sections 365 and 365A
In March this year, in a landmark decision, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) committee found that the criminalisation of consensual, same-sex relations between women in Sri Lanka is a human rights violation. The decision was in a case brought by Rosanna Flamer-Caldera to at the UN, with the support of the Human Dignity Trust (HDT), and sets a major legal precedent, holding that the criminalisation of lesbian and bisexual women violates the Convention.
The CEDAW Committee said that section 365A of the Penal Code of 1883 (amended in 1995) that criminalises same sex sexual relations between consenting adults compounds discrimination against women in Sri Lanka, and as such, violates lesbian and bisexual women’s right to non-discrimination under article 2 (a) and (d)–(g) of the Convention. It also noted that that decriminalisation of consensual same-sex relations is essential to prevent and protect against violence, discrimination and harmful gender stereotyping.
As such, the CEDAW committee urged the government to decriminalise same-sex sexual relations. It also asked Sri Lanka to take measures to protect women against gender-based violence by adopting comprehensive legislation against discrimination against lesbian, bisexual, transgender and intersex women, and provide adequate protection, support systems and remedies, including reparation, to lesbian, bisexual, transgender and intersex women who are victims of discrimination. Further recommendations included ensuring victims of gender-based violence including lesbian, bisexual, transgender and intersex women have access to effective civil and criminal remedies and protection, including counselling, health services and financial services, addressing workplace discrimination against LBTI women and providing sensitisation training to law enforcement agencies.
Research has shown that globally, LGBTIQ persons experience much higher rates of depression, anxiety and other mental illnesses, even leading to self-harm and suicide in certain instances as a result of the daily traumas they go through. In this context, discrimination and harassment by families, authorities, as well as medical professionals, especially those working in the field of mental health, cause irreparable harm to LGBTIQ persons. As they are unable to get the help they need, they are forced to live in the shadows, often at the cost of their mental and physical wellbeing. Therefore, it is high time for the government of Sri Lanka to remove oppressive laws and practices against the LGBTIQ community and grant them their basic human rights.
To obtain EQUAL GROUND’s Counselling Services, visit https://www.facebook.com/EGcounsellinghotline/ or call +94-11-4334277 (LB women), +94-11-4334278 (Transgender Persons), +94-11-4334279 (General).