• Guidelines are progressive but need oversight
• Impact from practical implementation remains to be seen
• Police officers require more awareness, education, and training to be effective

In a move that has been welcomed as “progressive” by activists striving to protect the rights of lesbian, gay, bisexual and transgender persons and also persons of other diverse sexual orientations and gender identities (LGBT+), the Human Rights Commission of Sri Lanka (HRCLS), last week, issued a set of guidelines to direct Police officers how to protect a transgender persons’ human rights and engage with the transgender community during their duties.

Acknowledging that transgender persons face harassment at the hands of law enforcement officers due to the former’s gender identity/expression, the HRCSL noted that new guidelines are aimed at protecting fundamental rights guaranteed in the Constitution. In a context where all human beings are born free and equal in dignity and rights, the HRCSL added, human beings of all sexual orientations and gender identities are entitled to the full enjoyment of that dignity and rights, and that all should ensure non-discrimination, personal security, and the right to privacy of transgender persons.

12 Guidelines to protect transgenders’ human rights 

To protect transgender persons’ right to recognition before the law, the guidelines stipulated that Police officers should recognise transgender persons, their identity and the process (of transitioning), and should take into account the constitutional guarantee that “all persons are equal before the law and are entitled to the equal protection of the law,” as stated under Article 12(1) of the Constitution. It further requires that all Police officers in different sectors should be aware of transgender persons and their transitioning process, and should respect their universally recognised rights and freedoms as enshrined in the Yogyakarta Principles (Yogyakarta Principles is an internationally recognised set of principles on the application of international human rights law and standards with a focus on diverse sexual orientations and gender identities.)

The second guideline aims at protecting transgender persons’ right to equality and non-discrimination, regarding which two instructions were issued.  It instructed Police officers to refrain from discriminating transgender persons based on the latter’s gender identity. Further the document states that Police officers’ failure to adhere to this right will be a violation of Article 12(2). In addition, it noted that disrupting transgender persons’ access to law enforcement authorities by means of unequal treatment, inaction, negligence, unnecessary delays, insensitivity towards the needs of transgender persons, and any such form of action, would amount to a violation of Article 12(1) of the Constitution.

The third guideline focuses on protecting the right to freedom from torture and cruel, inhuman or degrading treatment or punishment, regarding which it was explained that transgender persons face physical attacks, verbal abuse, blackmail, attempted sexual harassments and other forms of violence at Police stations due to their gender identity. If Police officers use degrading terminology to address transgender persons, the guideline noted, such acts should be regarded as physical and mental torture, inhuman or degrading treatment or punishment towards transgender persons, and they amount to a violation of Article 11 of the Constitution and of other applicable, prevailing laws. In addition, it read that when checking the body of transgender persons, Police officers must understand such persons’ gender identity and act accordingly. If there are reasonable grounds to suspect a transgender person, Police officers are required to first check the national identity card or any other valid document of the transgender person in question before checking their body. Maintaining and respecting that person’s privacy, and also treating them with due dignity, are essential. The Police are further required to formulate guidelines to inform of the manner in which such body searches of transgender persons should be conducted. In this regard, the HRCSL noted that a transgender person is just another person, and that they are entitled to all rights every other person is entitled to as per the Constitution.

With regard to the right to security of the person, on which the fourth guideline is based, the HRCSL stated: “Transgender persons face stigma, discrimination and violence in public places, such as non-verbal gestures, verbal abuses, threats and physical attacks. In these circumstances, the Police should proactively intervene, avoid the situation, and take appropriate legal action against individuals who violate those rights. Inaction, avoidance or delaying legal actions by Police officers regarding such grievances would violate Article 12(1) of the Constitution. When transgender persons cross-dress, the Police tend to criminalise such actions under Section 399 of the Penal Code, which refers to “cheating by impersonation”. Also, the Police usually erroneously judge these cross-dressed individuals as sex workers. Cross-dressing cannot be considered impersonation concerning transgender persons, and they should not be prejudiced as sex workers. Misapplication of criminal law has severe consequences, and the Police must be advised of these consequences. Severe action must be taken against Police officers that do not adhere to the prescribed regulations.”

The right to freedom from arbitrary arrest and detention is the fundamental right the fifth guideline aims to protect. Noting that transgender persons are often arrested under the Vagrants’ Ordinance merely because they stand on the road, the guideline recommended that the definition of “vagrant” must be clearly defined to avoid such wrongful arrests. If the Police do not follow this legal provision, it would be considered an illegal arrest, and will, therefore, violate Article 13 of the Constitution, according to the HRCSL.

Moreover, the guidelines focus on protecting individuals’ right to privacy, regarding which the seventh guideline underscored that personal information of transgender persons must be treated with confidentiality. Directing that disclosure of transgender persons’ “transgender status” and sensitive information should be on a need-to-know basis, the guideline said that such information should not be disclosed to other arrestees, the general public, lawyers, and court staff when they present before courts. Under this, Police officers are required to recognise the right to privacy when conducting body searches on transgender persons, and to assign an appropriate Police officer to conduct such searches on male-to-female transgender persons as per the request of such transgender persons.

Noting that the seventh guideline aims to protect the right to humane treatment while in detention, the HRCSL’s guidelines read: “Police officers, when detaining transgender persons who have committed an offence or are suspected of committing an offence, must consider their gender identity and treat them with humanity. A male-to-female transgender detainee has to be treated as a female detainee, and a female-to-male transgender detainee has to be treated as a male detainee. Both (types of) transgender persons should be detained separately from other detainees to avoid harassment. If a transgender person is detained without any reason, such detention would be considered illegal, and would, therefore, violate Article 13 of the Constitution. Any sexual harassment, threat, blackmail, beating or attack in a detention would be considered torture or inhuman or degrading treatment, as it violates Article 11 of the Constitution.”

In addition, eighth, ninth, 10th and 11th guidelines focus on transgender person’s right to enjoy family life, best interests of transgender children, right to access to law enforcement authorities, and the right to freedom of expression, association and assembly, respectively. The 12th guideline discussed the right to promote the rights of LGBT+ persons in Sri Lanka.

LGBT+ community’s response

Sri Lanka’s transgender community welcomed these guidelines, noting that it is a crucial initial step in putting an end to harassment against transgender persons at the hands of the Police. However, they raised concerns about the need to ensure that Police officers actually adhere to these guidelines. These concerns were shared by both LGBT+ activists and individual transgender persons.

“These guidelines are indeed a progressive move. But, they could and should be improved further,” Venasa Transgender Network Executive Director Thenu Ranketh, told The Daily Morning.

Explaining that these guidelines would support transgender persons to deal with discriminatory acts at the hands of the Police, he added that since these guidelines are essentially recommendations, there is a possibility that Police officers would implement them selectively based on their personal opinions. Referring to the circular issued by the Police in last December with regard to dealing with transgender persons and (transgender) persons who have undergone the transitioning process, Ranketh added that these guidelines should further improve Police officers’ compliance to that circular.

However, according to Ranketh, these directives alone would not end discrimination against transgender persons, and Police officers’ knowledge on the same crucial: “The circular and these guidelines would not make any positive change if Police officers that are tasked with enforcing the law at the grassroots level do not have adequate awareness about these regulations. The Police officers that were a part of the process of formulating these guidelines were high-ranking Police officers. However, it is ordinary Police officers of lower ranks that deal with the general public. They should therefore, have a good understanding of the provisions of the circular and of the guidelines. Otherwise, they would not know how to deal with transgender persons.”

In addition, he opined that the transgender community should also be aware of these directives, in order for this community to be able to take a stance on their rights when dealing with Police officers.

Meanwhile, Équité Sri Lanka Chairman Thushara Manoj, who also welcomed these guidelines calling it a “good initiative”, explained why such initiatives are a pressing need: “This is a good initiative, since harassments against LGBT+ persons at the hands of the Police are quite prevalent. In fact, relatively more cases of Police harassment on the basis of gender identity and expression have been reported than those based on sexual orientation. The type and prevalence of such harassments vary in various areas, and depends largely on how sensitive Police officers are when it comes to transgender persons. In some areas, when Police officers (of certain Police stations) deal with transgender persons, they pay attention to the reasons that resulted in such an encounter. However, in some areas, Police officers (of certain Police stations) pay more attention to transgender suspect’s gender identity. Majority of Police officers does not have adequate sensitivity and knowledge about transgender persons and their identities.”

Manoj stressed that although these guidelines are useful and progressive, there should also be a mechanism to monitor whether those guidelines are followed by Police officers. This is, in a context where various circulars issued to the Police in the past were not adhered to as expected. Adding that what is necessary is not just a guideline but also a system to ensure the practical implementation of these guidelines, he further opined that such guidelines should be issued not just for transgender persons but also for LGB persons. In addition, he pointed out the importance of taking more proactive measures to protect LGBT+ persons as opposed to reactive measures.

The two activists opined that in order to ensure that these guidelines benefit transgender persons at the grassroots level, it is necessary to raise awareness among Police officers that actually deal with the general public.

In this regard, Ranketh proposed that awareness raising programmes should be conducted not only for existing Police officers, but also for those who join the Police force in future. Adding that such programmes should target Police officers of all levels, he said that the transgender community should also be given an opportunity to conduct such programmes and discuss the issues they face at the hands of Police officers.

Meanwhile, Manoj recommended that a code of conduct should be introduced for Police officers in addition to the said guidelines and awareness raising programmes: “A code of conduct – which says that Police officers will not discriminate people or encourage discrimination on the basis of ethnicity, race, sexual orientation and gender identity and such grounds – should be introduced to the Police. When recruiting Police officers, new officers should in writing agree to adhere to this code of conduct when enforcing the law. Having in place such a code of conduct would make it easier to fight discriminatory acts by Police officers against transgender persons.

In addition, several transgender persons that spoke with The Daily Morning on the condition of anonymity said that adhering to these guidelines should be made mandatory for Police officers, and that Police officers that fail to adhere to these guidelines should be fined in order to encourage Police officers in general to take these guidelines seriously. Noting that more policies should be introduced to protect transgender persons’ human rights, they added that the Government should be more active in this regard.