Sri Lanka's Criminalization of Same-Sex Act
LGBTQ has a complicated relationship with sex, gender, and sexuality for which this marginalized community faces issues in associating with heteronormativity and heterosexuality.
Sri Lanka through its sodomy laws paved in Penal Code has criminalized homosexuality and third-gender identity with rigorous imprisonment and fines as penalty. It is tough to reside and be valued in a conservative society like Sri Lanka where there are so many restrictions on being open and expressive about one’s own identity.
United Nations International Human Rights Convention strives to put an end to the decriminalization and criminalization of homosexuality yet, Sri Lanka being a member of the United Nations cared less about it. Moreover, the rising supremacy of religion and nationalism has nurtured the dominance of heterosexuality while sowing seeds of homophobic attitudes toward homosexuals.
Homosexuality and third-gender identity is still considered taboo in Sri Lanka and due to the prevailing legitimacy and cultural barriers, it is unacceptable by the mainstream civilians of the society.
In a landmark judgment, the United Nations treaty body issued the Sri Lankan government to repeal its discriminatory law on criminalizing consensual adult same-sex conduct. Rosanna Flamer Caldera who is a LGBTQ rights activist brought the issue under CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) and advocated against social injustices on behalf of sexual and gender minorities.
Human Rights Watch in its 2016 report filmed the dark shadow that Sri Lanka’s penal code cast upon the lifestyle of the LGBTQ community and how it affected their healthcare and housing and created an atmosphere of pressure to conceal and conform their identities.
Homosexuality is criminalized in Sri Lanka and a minimum imprisonment of 10 years is stipulated for unnatural offenses. The penal code of Sri Lanka under section 365 and section 365A punishes “act of gross indecency” and “carnal intercourse against the rule of nature” with fine and imprisonment both, which according to the rule of the land refers and is applicable to a same-sex relationship.
- Article 365 of the Penal Code- matters related to a same-sex relationship which is considered unnatural offenses where a person voluntarily involved in carnal intercourse against the natural order with any man, a woman is liable to punishment of imprisonment which may extend to ten years along with fine. It also states that if an 18 years and above person indulges with a person under 16 years of age shall face rigorous imprisonment for a term, not below 10 years and not exceeding 20 years with a fine and compensation for the injuries caused in respect to the person as shall be decided by the court.
- Article 365A- defines ‘act of gross indecency’ as any person either in public or private committing or being a part of the commission or attempts to procure with another person of the same sex shall be held guilty and punished with imprisonment for a term extending 2 years with a fine or both and in case an 18 year and above person indulges with a person under 16 years of age shall face rigorous imprisonment for a term, not below 10 years and not exceeding 20 years with fine and compensation for the injuries caused in respect to the person as shall be decided by the court.
An NGO named Equal Ground in its report called Shadow Report covered and discussed the violations of the rights of the Sri Lankan LGBTQ community and highlighted the violation of Articles 2(1), 2(3), 17, and 26 that criminalizes same-sex conduct.
Article 7, 9 and 10 that deals with arbitrary arrests and detentions, abusive and violent behaviors of the police, Article 19(2), 21 and 22 where the freedom of expression, to form assembly and association is suppressed and lastly Article 2(1), 7, 9. 23(3)and 26 for the failure of protection against discrimination, hate crimes, and coercive marriage and was submitted to the United Nations Human Rights Committee.
In response to the queries raised by the United Nations Human Rights Committee, Sri Lankan Government gracefully stated that the people of the LGBTQ community were constitutionally protected against discrimination and stigmatization as Article 12 recognizes non-discrimination on the basis of language, sex, caste, political opinion, race, and religion a fundamental right of all its citizen.
It also stated that Article 12.1 advocates equality for sexual orientation and gender identity and that under Article 12.2, discrimination on the basis of sexual orientation and gender identity is unconstitutional. Further, the government clarified that sections 365 and 365A do not target any community but rather protect public morality.
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Section IV highlights the failure of Sri Lanka to enact and adapt processes that would ensure the right to legally recognize gender identity. Initiatives developed by the Lankan government to expose and expand the opportunities for the civil societies in section V.
This section keeps the civilians engaged with the policy or decision makers though it does not lead to any substantive changes in the legal field or policy making. Frequently, Lankan police taking advantage of the vulnerability of the LTBTQ use these laws to target this community of sexual minorities who participate in commercial sex work and the police violate their rights by means like arbitrary arrests, extortion, rape, and assault, and forced anal examinations in a prosecution which is a gender-based violence itself.
The activists and legal experts in LGBTQ matters criticize and question the law and order of the state officials and the civil society who verbally, physically, and emotionally abuse this community.
The political scenario of Sri Lanka is not enough mature to provide protection or welcome the rights of the LGBTQ community. There is a complicated, homophobic, and transphobic atmosphere in the contemporary politics of Sri Lanka and the present politicians tend to represent ethno-nationalist ideology to keep control and protect their political career in the long run and make amendments to the Penal Code and Constitution of Lanka could change the political scenario.
When the state criminalizes homosexuality or same-sex relationship, it kind of shows a green flag to society that queer women are pariahs, and such institutionalized discrimination can trigger and be used to justify violence against such women. Lesbians and bisexuals though have little access to recourse are victims of crime in the eye of the law of the land of Sri Lanka and in some cases these intersex people are denied justice.
