Photo courtesy of LNW
Thanks to archaic Victorian-era laws that are still present in Sri Lanka, the country’s Lesbian, Gay, Bisexual, Transgender, Intersex and Queer/Questioning (LGBTIQ) community has been marginalised and discriminated against for over a century.
Sri Lanka still criminalises same-sex sexual relations between consenting adults under Article 365 and 365A of the Penal Code, which states that “carnal intercourse against the order of nature” and “acts of gross indecency” are criminal offences punishable with a sentence of up to 10 years. While these sections do not explicitly state that these offences pertain to same-sex sexual relations, they are most often used against LGBTIQ individuals due to the murky and vague nature of the said provisions and their colonial, anti-sodomy legacy.
To make matters even more complicated, Article 16 of Sri Lanka’s Constitution states that “All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.” This means that discriminatory laws such as Article 365 and 365A remain valid and operative and cannot be challenged by a citizen in court. The only way to abolish such laws is through legislative process.
In a historic landmark decision, the UN Committee on the Elimination of Discrimination against Women (CEDAW) found that Sri Lanka’s criminalising of same-sex sexual relations under section 365A of the Penal Code of 1883 was a human rights violation and called for the decriminalising of same-sex relations. The decision was made in response to a case brought by Rosanna Flamer-Caldera, the founder of Equal Ground to CEDAW in 2022.
Three years on, the laws remain on the statute book. As part of its series on Assessing the Key Issues Facing the NPP Government, Groundviews spoke to Rosanna about changing outdated laws and the need for recognition and acceptance of the LGBTIQ community.
What is the significance of Sections 365 and 365A of the Penal Code in relation to LGBTIQ rights?
Since there is such a lot of homophobia, the police target LGBTIQ persons under these laws. They feel that they are at liberty to at any point stop somebody they think might be LGBTIQ and demand to see their ID, their wallets and ask, “why are you carrying condoms, why are you standing at the bus stand so late at night, are you looking for sex?” They intimidate people, beat them up. The police used to do in the past but they are a lot better now. They have been sensitised. We have brought a case against them in court and they have realised that these laws can only be used if a person is caught in the act. It’s in private and in public. Even if I was making love to my girlfriend in the privacy of my own home and somebody saw me through a window and complained to the police, they can come into my home and arrest me. The implication for the LGBTIQ community is that because of these laws, we are deemed as perverts and pedophiles. People are at liberty to call us all kinds of names, accusing us of all kinds of indecent acts just because of this law. The connotation is that because there’s a law prohibiting same-sex relationships, that it is a bad thing and that it’s unnatural.
What are some of the main challenges that LGBTIQ people face when trying to access legal support?
In the past it’s been difficult for them because people didn’t want to give them any kind of support, including legal support. Equal Ground has been working since 2004 and we have been challenging the law consistently and constantly. We have been talking to the police; we have been sensitising the public at large and the police as well. People should understand that this is a law that was brought by the British. We are still hanging on to these laws. The British decriminalised a long time ago and they even have same-sex marriage equality. Why are we clinging on to these archaic laws? Because our society, from a very long time ago, had no issues with homosexuality. There are many documented cases of homosexual kings and queens and transgenders within the court. But the British, with their puritanical Christian values, came to Sri Lanka and forced this on us. And now we have embraced it as though we were given a pot of gold. We need to change that. These are not our laws. This is not our culture, to marginalise a community just because people are gay, lesbian, transgender or bisexual. It has taken 20 years of us advocating and now in the last five or six years there have been a lot more organizations coming out and fighting for the rights of the LGBTIQ community. So now they can’t really ignore us as much.
What should the government be doing to improve the situation of the LGBTIQ community?
According to the CEDAW ruling on my case that I filed in 2018, it found that the government needed to do several things. One is to decriminalise and repeal 365 and 365A immediately and to compensate me for the troubles that I have been through based purely on the fact that I’m a queer activist and a queer person. It’s been three years now since the CEDAW decision; Sri Lanka is remiss in its obligations towards the treaty bodies as well as towards the people of this country, especially the LGBTIQ community. In my opinion, it was just something dangling in front there so that they can be seen to be doing something about it but they had absolutely no will to pass it through. This government has promised that 365 and 365A will be repealed and I urge the government to give me the compensation that it has been told to give. I’m not that interested in that. What I am interested in is that the laws be repealed immediately. What are you waiting for? You will always have an excuse to put certain communities on the back burner, their rights on the back burner but you have been instructed by the UN. The country has signed the optional protocol. It has to take the UN treaty bodies very seriously. So my call to the government is, what are you waiting for? You have two thirds majority, just go ahead and do it.
How do the social factors, particularly the influence of religious groups and the recent support from conservative mothers for President Trump’s views on gender, impact the decriminalisation of homosexuality?
We know that this particular group, the Mothers of Lanka, are politically affiliated and that the fact that they are raising their ugly heads to shout about homosexuality and calling us pedophiles and sexual deviants is just something to flag so that they can push forward their political agendas and try to push this new government aside or try to bring in their sons and daughters. I don’t take them very seriously because we have been here for a long time so why are you waiting for Trump to come to say all these things? Why weren’t you saying things before that? The allegations they are making about homosexuality and people who are queer being pedophiles and sexual deviants I have refuted in an article on Groundviews because it’s simply not true. Their allegations are not true. It’s not based on any kind of empirical data; there is no scientific value to their rantings. There are so many mothers in Sri Lanka, like my own mother, who loved me even though she knew I was a lesbian. There’s not one day that she didn’t tell me, “I love you darling and I’ll be with you and stand up for you no matter what.” That’s what mothers should do for their children, not rant and rave and try to push aside their children because they’re different. It’s easy to do that, especially when you’re hiding something. Perhaps we should take a look at the sexual abuse that happens in this country and point out to why exactly it is happening. Don’t just blame people without any kind of data to back you up.
How can the broader community, including allies, contribute to improving the legal protections and rights of LGBTQI individuals?
One of the things that we set out to do when we formed Equal Ground was to make sure that we have allies on our side because we knew that we could not push the decriminalisation process without the help of our parents, friends and family. So allies are extremely important on this road to decriminalisation and past it. There is always this us versus them attitude in Sri Lanka. It has led to a war and it has led to riots where people were killed. It is unnecessary because we all are children of this soil. We are all Sri Lankans. I may look foreign. I’m a Burger. I was born here. My parents were born here and their parents were born here. So don’t turn around and say I don’t belong here because I do belong here. This is my country as much as it is everybody else’s country. Politics and religion have soured the dynamic of this gentle country, this gentle population. Anywhere in the world you go, one of the things that you heard in the past was how gentle Sri Lankan people were. What has happened to that? What has happened to our value system? It has been turned on its head by avaricious politicians and now it seems like evangelical Christians are behind this mother’s movement. We are importing some horrible stuff from America to push this attitude of hatred towards people who are different, whether it’s the colour of their skin or their ethnicity or the language they speak or who they love. There shouldn’t be a difference. We are all citizens of this country and we need equal protection under the law.
What international frameworks do you think could be leveraged to strengthen LGBTQI rights?
Does our government listen to international instruments? We talked about CEDAW. It has been very clear that under the CEDAW committee ruling, 365 and 365A need to be repealed. But obviously they are not in the least bit bothered about that. So my question is, are we really playing with the international community or are we just giving lip service when we go to the UN and are asked certain questions? It seems like they don’t bother too much about international mechanisms or instruments. We used the CEDAW optional protocol to bring the case against the government. It has been ruled that they are in error so they need to do something about it but three years on, they have done absolutely nothing. It seems that Sri Lanka doesn’t care about international standards. All they care about is being in power and doing as they please.
