Pronouncing the decision regarding a case filed by Sri Lankan lesbian, gay, bisexual, and transgender (LGBT) activist Rosanna Flamer-Caldera, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) raised concerns about the discrimination faced by the activist and pointed to Sri Lankan laws that criminalise same-sex conduct between consenting adults.
A statement regarding the CEDAW Committee’s decision noted discrimination, harassment, stigmatisation, and threats of violence by state officials and members of the public, including the press and social media, against the activist.
What was highlighted by the said decision are the realities that Sri Lankan LGBT persons live with every day, and they are issues that have gone unaddressed for decades despite countless cases of discrimination and harassment against this community. In addition to discrimination faced in society, there are legal provisions, i.e. the Penal Code’s Sections 365 and 365A, which were enacted nearly a century and a half ago and are still used to inconvenience or harass the LGBT community. Legal reforms, i.e. the repeal of the said laws, have been a staple demand of the LGBT community throughout their fight for equal rights, and the CEDAW Committee’s decision, which highlighted legal protection for and legal obstacles against this community, is the latest expression of the opposition to the said laws.
Despite Sri Lanka’s lack of interest in repealing these laws, some other countries that used to have similar discriminatory and archaic laws have done away with them. Most notably, India, in 2018, decriminalised homosexuality by repealing their Penal Code’s Section 377, which bears strong similarities to Sri Lanka’s laws used against homosexual persons. In 1967, the UK, the country that introduced the aforementioned law to Sri Lanka, amended its laws which had criminalised homosexual acts in order to decriminalise such acts.
The Justice Ministry is currently in the process of reforming a number of laws, especially archaic ones which have not been updated to address issues of the present day, or do not provide adequate punishments, especially fines to penalise offenders. In fact, high-ranking members of the incumbent Government, including Justice Minister and President’s Counsel M.U.M. Ali Sabry and President Gotabaya Rajapaksa, have acknowledged all citizens’ right to be free from discrimination on the basis of their sexual orientation and/or gender identity.
Last year, Sabry stated that he had requested the relevant authorities to refrain from engaging in acts amounting to discrimination against the LGBT community. He made this statement in response to reports that alleged that judicial medical officers and police officers were conducting forced examinations on private body parts of LGBT persons without or against their consent. What is more, he underscored every citizen’s right to live with dignity and without fear of persecution, and that no persons should be discriminated against or made to suffer any form of abuse, indignity, or injustice on the basis of their gender, sexual preference, or identity.
Moreover, in a Tweet posted on the UN Zero Discrimination Day on 1 March 2021, President Gotabaya Rajapaksa implicitly acknowledged the right of LGBT, intersex, and queer and questioning persons to be free from discrimination on the basis of their sexual orientation and/or gender identity. He Tweeted that as the President of Sri Lanka he was determined to secure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance, and beliefs.
In this context, the Government must seriously consider repealing the laws used against the LGBT community, which the LGBT community feels is one of the biggest challenges that affect their lives. Doing so will considerably reduce discrimination against at least 5-10% of the population, which some claim to be the size of the LGBT population. Even though repealing these laws alone is not going to eradicate discrimination against the LGBT community, it will help the LGBT community to be free from discrimination and harassment at the hands of the law enforcement authorities, while also paving the way for LGBT persons to take legal action against rights-related violations on the basis of sexual orientations or gender identities.
There is no reason to continue with a law which criminalises what happens among consenting adults in the bedroom under the guise of cultural sensitivities, especially since the law was introduced by the British colonisers, who are generally despised by those Sri Lankans who claim to espouse “local” values, traditions, and culture. Amidst the impact of the Covid-19 pandemic, an unprecedented economic crisis, and the knock-on effects of the war between Russia and Ukraine, an archaic law which discriminates against the LGBT community may feel unimportant or less of a priority to the general population. However, it would mean the world to the LGBT community, and elevate Sri Lanka’s standing among the international community as a tolerant and open society. There is no wrong time to do the right thing, and there is not time like the present. The law must go.