Global Human Rights Defence

Hydropower - The Effect of Climate Mitigation on Human Rights
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Authors: Judit Kolbe and Malene Solheim 
GHRD, November 2021

On the 1st of March 2021, Sri Lanka’s President, Gotabaya Rajapaksa, became one of the first South Asian Heads of State, and the first Sri Lankan President, to publicly acknowledge LGBTQ+ rights in a Twitter post celebrating Zero Discrimination Day. Rajapaksa declared his intention as President tosecure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance and beliefs”. While this message was welcomed by many members of the LGBTQ+ community, others pointed out the discriminatory national legislation still in force and the daily harassment, violence and discrimination experienced by the community in Sri Lanka. 

Origins of the LGBTQ+ movement in Sri Lanka 

The Sri Lankan LGBTQ+ movement emerged in late 1990, concurrently with the international awareness on HIV/AIDS. The first non-governmental organisation (NGO) for LGBTQ+ rights in Sri Lanka, Companions on a Journey (CoJ), was founded in 1995 and funded by the Dutch government. The NGO and its founder, Sherman de Rose, are often cited as the founders of the LGBTQ+ movement in Sri Lanka. CoJ pursued the decriminalisation of homosexuality and launched a campaign to that effect in 1995. In response, the Sri Lankan legislator recognised that the law, as it stood at that time, only applied to men, yet the former extended the law to women as well. In 2005, Equal Ground (EG) was founded; it is the most prominent LGBTQ+ NGO in Sri Lanka today, seeking “equality for all sexual orientations and gender identities; human rights for everyone”.

Between 2005 and 2015, Mahinda Rajapaksa was the president of Sri Lanka. He openly opposed LGBTQ+ rights, contributing to an environment of intolerance and discrimination. Moreover, extremist Sinhalese-Buddhist nationalist groups added to the sentiment as they objected to granting LGBTQ+ rights and threatened or attacked LGBTQ+ advocacy NGOs. Since then, many LGBTQ+ organisations and right’s initiatives have been founded. Nonetheless, the community still faces a multitude of challenges.

 National discriminatory legislation 

Article 12(2) of Sri Lanka’s Constitution protects individuals from discrimination on the grounds of sex and “other such grounds”. Yet, same-sex relations between consenting adults and implicitly the expression of transgender people are criminalised in Sri Lanka. 

Section 365 of the Sri Lankan Penal Code criminalises “carnal intercourse against the order of nature”. A violation of this provision can lead to up to ten years of imprisonment, as well as a fine. Section 365 concerns sexual intercourse between men only. Notably, the Penal Code of 1883 is a colonial law passed during British rule in Sri Lanka. Section 365 of Sri Lanka’s Penal Code criminalising homosexual activities between men has not been changed since. As described above, in 1995, the Penal Code was amended and Section 365A was added, criminalising acts of “gross indecency with another person” and other acts falling short of sexual intercourse. Since this provision incorporates gender-neutral language, it applies to acts between men and between women. A violation of Section 365A can lead to imprisonment of up to two years, a fine or both.  Furthermore, same-sex marriage is not allowed under domestic law.

For over 135 years, the LGBTIQA community has been marginalised and discriminated against due to archaic British Laws that were introduced in 1883, which our Governments have clung on to for over 70 years of independence in order to vilify and marginalise [the LGBTQ+] community. (Equal Ground, Colombo Pride, 2018)

The fact that homosexuality is not explicitly mentioned within the law but placed into the categories of “unnatural offences” and “gross indecency” technically leaves its applicability open to interpretation. However, these provisions are understood to de facto criminalise same-sex relations among Sri Lankan society. Additionally, Sri Lankan police arrest and detain LGBTQ+ persons on the basis of these provisions. Since Sri Lanka’s independence in 1948, not a single case has been prosecuted under these laws, where a person was accused of being a homosexual – however, these laws are used to threaten, discriminate against and harass members of the LGBTQ+ community. Similarly, prosecution under these provisions relating to homosexual activities is rare, yet, they are used to discriminate against the community. Thus, regardless of the enforcement of these laws, they continue to perpetuate discrimination, harassment and violence against the LGBTQ+ community in Sri Lanka.

Moreover, Section 399 of the Sri Lankan Penal Code of 1883 criminalises “cheating by personation”. This provision and a vaguely formulated Vagrancy Ordinance criminalising “riotous [and] disorderly” behaviour and punishing “common prostitution”, are used to target transgender persons. Nonetheless, a Gender Recognition Circular was adopted in 2016, introducing gender recognition certificates and allowing transgender people in Sri Lanka to obtain legal gender recognition within days and identity cards without a gender history. 

While no international treaty focuses on gender rights and sexuality, the right to equality and non-discrimination guaranteed by international human rights law, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), applies to all people, “regardless of [their] sex, sexual orientation, gender identity or ‘other status’”. The aforementioned Sri Lankan provisions and their interpretation thus go against international human rights standards and treaties ratified by Sri Lanka.

The laws serve as a pretext for denying sexual minorities a range of rights […]. They also legitimise the stigma of sexual minorities in Sri Lanka, who face pervasive societal discrimination in employment, housing, the media, family matters, and daily life. (Equal Ground, 2013)

Current Discrimination and Challenges  

Discrimination is still widespread across Sri Lanka and being LGBTQ+ is still difficult for many, as demonstrated by the tables below.

Figure 1: [Overview of the LGBTQ+ experience in Sri Lanka]

The physical discrimination of LGBTQ+ persons in Sri Lanka takes many shapes – physical, cultural and structural.  Visual discrimination means explicit and intended discrimination targeting members of the LGBTQ+ community. Last year, Human Rights Watch (HRW) released an article revealing that medical personnel in Sri Lanka performed forced anal and vaginal penetration exams to obtain “evidence” of homosexual conduct. Additionally, the court ordered several men to take a HIV test, without their consent. These examples demonstrate how discrimination is physical. 

However, discrimination is often played out in a non-explicit manner – structural factors can also create a discriminatory society. As same-sex marriage is prohibited by Sri Lankan law, people who experience domestic violence in same-sex relationships are less likely to report it compared to people in heterosexual relationships. This has eventually led to higher suicide rates amongst LGBTQ+ persons in Sri Lanka. 

Lastly, discrimination is also cultural. Equal Ground (EG) reports that queer women are in a position of particular vulnerability in Sri Lanka. Gender roles within the familial sphere are restrictive for women as they are expected to abide by heteronormative roles such as mothers and housewives. Women in same-sex relationships are met with prejudice by family members and society due to the neglect of traditional gender roles. This makes the lives of women in the LGBTQ+ community difficult.

The three types of discrimination, physical, structural and cultural, are interrelated and cannot be tackled independently from each other.

  • “In order to ease the shame and guilt felt by the Sri Lankan LGBTQ+ community, it is not sufficient to tackle the law, but also to change the cultural and societal structure around the matter.”

(Kemone Brown, 2011)

International Attention 

The discrimination of LGBTQ+ people in Sri Lanka has recently gained attention from the international community. However, Sri Lanka is home to 22 million people, and it is often placed in the shadow of other larger bigger countries in South Asia.

As NGOs expand their work in Sri Lanka and promote LGBTQ+ rights, an increasing plurality of genders and sexualities are represented in popular media, politics and everyday life. The United Nations Development Program’s (UNDP) report from 2013 on “Sri Lanka Advocacy Framework HIV, Human Rights and Sexual Orientation and Gender Identity”. The report reveals information about HIV is not easily accessible to the LGBTQ+ community and this impacts their sexual health. Furthermore, it highlights limited health care services and physical violence as two major challenges for the LGBTQ+ community in Sri Lanka. In later reports, these two types of discrimination were further analysed. 

In 2019, Amnesty International published a report that narrated the different types of discrimination faced by four queer individuals. The report identifies police brutality and workplace bullying as two central arenas for discrimination. The aim of such a report is to personify the discrimination against LGBTQ+ people in Sri Lanka. 

Currently, the LGBTQ+ community remains a victim of physical, structural and cultural discrimination. Both grassroots and international efforts are required to combat the discrimination that is taking place presently. Furthermore, Sri Lanka’s colonial legislation criminalising homosexual activities and relations should be revised – these provisions leave the LGBTQ+ community vulnerable to discrimination, harassment and violence by society and the police and deny them the enjoyment of their fundamental rights.

Bibliography

Domestic Sri Lankan Legislation 

Sri Lanka Penal Code 1883, as amended by Act No. 22 of 1995. http://hrlibrary.umn.edu/research/srilanka/statutes/Penal_Code.pdf, accessed 20 November 2021. 

The Vagrants Ordinance 1842, as amended by Ordinance No. 20 of 1947, http://hrlibrary.umn.edu/research/srilanka/statutes/Vagrants_Ordinance.pdf, accessed 22 November 2021. 

General Circular No. 01-34/2016, issued 16 June 2016. http://www.health.gov.lk/CMS/cmsmoh1/viewcircular.php?cno=01-34/2016&med=english, accessed 20 November 2021. 

Constitution of the Democratic Socialist Republic of Sri Lanka, as amended on 29th October 2020 – Revised Edition 2021. https://www.parliament.lk/files/pdf/constitution.pdf, accessed 20 November 2021.

Books 

Galtung, J. (2012). Peace by Peaceful Means Peace and Conflict, Development and Civilization. SAGE Publications Ltd.

Graupner, H. & Tahmindjis P. (2005). Sexuality and Human Rights: A Global Overview. Harrington Park Press.

Articles  

Amnesty International (2019, December 7). Sri Lanka: End Discrimination against LGBTI people. Amnesty International. https://www.amnesty.org/en/latest/press-release/2019/12/spectrum-sri-lanka-lgbti/, accessed 22 November 2021.

Brown, K. (2011). Struggling Against Homophobia and Hate Crimes. Equal Ground.https://www.equal-ground.org/wp-content/uploads/homophobicviolencebooklet.pdf, accessed 22 November 2021.

Ellawala T. (2019). Legitimating Violences: The ‘Gay Rights’ NGO and the Disciplining of the Sri Lankan Queer Figure, Journal of South Asian Development 14(1). https://journals.sagepub.com/doi/pdf/10.1177/0973174119843454, accessed 21 November 2021.

Equal Ground (2020). Equal Ground Voices Concerns over Forced Anal/Vaginal Examinations on LGBTIQ Community in Sri Lanka. https://www.equal-ground.org/equal-ground-voices-concerns-over-forced-anal-vaginal-examinations-on-lgbtiq-community-in-sri-lanka/, accessed 21 November 2021.

Equal Ground (2021). Mapping LGBTIQ Identities in Sri Lanka: A report on the documentation and research conducted by Equal Ground. https://equalityfund.ca/wp-content/uploads/2021/06/Mapping.pdf-Research-report.pdf, accessed 21 November 2021. 

Galagedera, G. et al (2019). Spectrum:Four stories of discrimination faced by LGBTI people in Sri Lanka. Amnesty International, pp. 1-37. https://www.amnesty.org/en/wp-content/uploads/2021/05/ASA3714772019ENGLISH.pdf, accessed 21 November 2021. 

Human Rights Watch (HRW) (2020, October 20). Sri Lanka: Forced Anal Exams in Homosexuality Prosecutions. HRW. https://www.hrw.org/news/2020/10/20/sri-lanka-forced-anal-exams-homosexuality-prosecutions, accessed 20 November 2021. 

United Nations Development Programme (UNDP) (2013). Sri Lanka Advocacy Framework: HIV, Human Rights and Sexual Orientation and Gender Identity. UNDP. Sri Lanka – United Nations Development Programmehttps://www.undp.org › rbap › docs › hiv_aids › r…, accessed 29 November 2021. 

Wijesiriwardena, S. (2017, December 21). Where have all the queer women gone?. Gender It. https://www.genderit.org/es/node/5050, accessed 21 November 201.

Newspaper Articles

Kotelawala, H. (2017, January 19). Sri Lanka Officially Refuses To Go Gay. Roar Media. https://roar.media/english/life/reports/sri-lanka-officially-refuses-go-gay, accessed 20 November 2021. 

Maduwage, S. (2020, October 3). Persecution of the LGBTIQ Community: Does Sri Lanka’s Police have Nothing Better to Do?. Daily Mirror. https://www.dailymirror.lk/opinion/Persecution-of-the-LGBTIQ-Community-Does-Sri-Lankas-Police-have-Nothing-Better-to-Do/172-197127, accessed 21 November 2021.

Tamil Guardian (2016, May 10). Sinhala threaten LGBT activists in Sri Lanka. Tamil Guardian. https://www.tamilguardian.com/content/sinhale-threaten-lgbt-activists-sri-lanka, accessed 21 November 2021.

Thomas, S. (2021, March 03). In A First, Sri Lankan President Acknowledges LGBT Rights. Star Observer. https://www.starobserver.com.au/news/201090/201090, accessed 20 November 2021. 

Online Websites

Equal Ground (2021). About Us. Equal Ground. https://www.equal-ground.org/about-us/, accessed 21 November 2021

Equaldex (2021). LGBT Rights in Sri Lanka. https://www.equaldex.com/region/sri-lanka, accessed 29 November 2021.

Human Dignity Trust (2021). Sri Lanka. Human Dignity Trust. https://www.humandignitytrust.org/country-profile/sri-lanka/, accessed 20 November 2021. 

Outright Action International (2021). Sri Lanka. https://outrightinternational.org/region/sri-lanka, accessed 21 November 2021.

Sri Lankan Government 

Foreign Ministry of Sri Lanka (2020). Overview Conventions. Foreign Ministry of Sri Lanka. https://mfa.gov.lk/overview/, accessed 21 November 2021. 

Other 

Equal Ground, Centre for International Human Rights of Northwestern University School of Law, Heartland Alliance for Human Needs & Human Rights (2013, December). Human Rights Violations Against Lesbian, Gay, Bisexual, and Transgender (LGBT) People in Sri Lanka: A Shadow Report. https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/LKA/INT_CCPR_ICO_LKA_15986_E.pdf, accessed 21 November 2021. 

Equal Ground (2018). Butterflies for Democracy: Colombo Pride 2018. https://d.facebook.com/ColomboPRIDESriLanka/photos/a.1683178768379522/2277796088917784/?type=3&_ft_=mf_story_key.2277796205584439%3Atop_level_post_id.2277796205584439%3Atl_objid.2277796205584439%3Acontent_owner_id_new.105844679446280%3Athrowback_story_fbid.2277796205584439%3Apage_id.105844679446280%3Aphoto_id.2277796088917784%3Astory_location.4%3Astory_attachment_style.photo%3Apage_insights.%7B%22105844679446280%22%3A%7B%22role%22%3A1%2C%22page_id%22%3A105844679446280%2C%22post_context%22%3A%7B%22story_fbid%22%3A2277796205584439%2C%22publish_time%22%3A1544071909%2C%22story_name%22%3A%22EntStatusCreationStory%22%2C%22object_fbtype%22%3A266%7D%2C%22actor_id%22%3A105844679446280%2C%22psn%22%3A%22EntStatusCreationStory%22%2C%22sl%22%3A4%2C%22dm%22%3A%7B%22isShare%22%3A0%2C%22originalPostOwnerID%22%3A0%7D%2C%22targets%22%3A%5B%7B%22page_id%22%3A105844679446280%2C%22actor_id%22%3A105844679446280%2C%22role%22%3A1%2C%22post_id%22%3A2277796205584439%2C%22share_id%22%3A0%7D%5D%7D%7D%3Athid.105844679446280%3A306061129499414%3A2%3A0%3A1546329599%3A5496408408654335507&__tn__=EH-, accessed 21 November 2021

Gonzalez, J. (2019, June). Repainting the Rainbow: A Postcolonial Analysis on the Politics of the LGBTQ Movement in Sri Lanka. https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8975740&fileOId=8979999, accessed 21 November 2021.

Rajapaksa, G. (2021, March 1). Twitter. https://twitter.com/GotabayaR/status/1366258501886955526, accessed 20 November 2021. 

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Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

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