The Legal Landscape of LGBT Rights in Sri Lanka: A Call for Equality and Inclusivity
Keywords
LGBT
rights, legal reforms, human rights, Sri Lankan law, international law,
discrimination, equality
Abstract
The
rights and worth of the Lesbian, gay, bisexual and the transgender (LGBT) have
been a topic with a lot of debate worldwide and the same has applied to Sri
Lanka. This research paper focuses on the legal aspect of the homosexuals’
right; human rights’ analysis on this right; and the society’s perception and
challenges faced by the lesbians, gays, bisexuals, and transgenders in Sri
Lanka. This paper has sought to identify the state of Sri Lankan politics with
reference to the rights of the LGBT community through a legal analysis of
domestic laws and international treaties, comparative legal analysis, and
stakeholder interviews and focus on the current legal positions of the LGBT
community as well as provide possible ways forward with regard to legal and social
reform to ensure that the rights of the LGBT community are fully realized in
Sri Lanka.
1. Introduction
The
rights of the people belonging to the LGBT community have been an issue of
debate and concern in many parts of the globe with some countries offering full
protection of the individuals while others take the middle road or do not allow
the practice at all. Sri Lanka being a culturally diverse country which has a
core value system has faced many challenges on how to treat the individuals
within the Lesbian, Gay, Bisexual, and Transgender community. This issue has
been receiving much attention and concern as it is a social issue that impacts
the lives of many people, as well as being about their rights, and one of the
basic tenets of society, which is the right to be accepted and respected.
Going
back to the colonial British rules Sri Lankan society has been shaped by laws
and sentiments that prohibited and rejected homosexuality and cross dressing.
Modern negative legal sanctions and social attitudes toward the homosexuality
and other non-heterosexual practices derive from these earlier laws and
cultural perceptions and contribute to persecution, exclusion and denial of
rights and liberties of the gay and lesbian people.
It
is evident that there is an urge of formulating strategies to address the
challenges that the Sri Lanka’s LGBT people face in their daily lives. To some,
it is a question of human rights, where people of gay and lesbian orientation
and people of the transgender community must be afforded the same rights as any
other citizen without discrimination.
Therefore,
this research paper seeks to carry out a critical analysis of the existing
laws, human rights philosophy, public opinion, and the most progressive
practices in relation to the homosexuals in Sri Lanka. It is with the hope of
expanding the knowledge and understanding of this issue and its impacts that
this paper aims to submit itself to scholarly and practitioner discourses on
the issue and how it can be solved to ensure that this vulnerable group is
afforded equal opportunities in the society.
In
combination with an assessment of the current state of the Sri Lankan
legislation and practice, as well as the international legal framework,
comparative law, and the voice of stakeholders, this paper seeks to contribute
to better understanding of the current situation of the LGBT people in Sri
Lank, and provide recommendations for the amendments in the legislation, as
well as societal changes that would ensure non-discrimination and equal
protection of human rights for the members of the LGBT community
This
is a very important group of people and should be accorded the respect of
society, organizations, and the law for it is not only legal but moral and
ethical to do so. It is a measure of how society stands on issues such as human
rights, equality, and tolerance of the cultural and physical differences of
people in society. It is therefore for Sri Lanka to rise to the occasion and
fully transform into what it can be, to set a positive example as a nation
emerging from conflict to show that progress is possible from any
circumstances.
In
conclusion, this research paper therefore seeks to add to the literature and
the ongoing push for change by advocating for the recognition of the LGBTIQ
population as deserving of equal rights and opportunities, as is evident from
the foregoing discussions and findings of other scholars.
2. Legal Framework in Sri Lanka
The
legal landscape in Sri Lanka concerning the LGBT community is predominantly
shaped by the British colonial legacy, specifically the Penal Code of 1883.
This archaic code continues to exert a significant influence on the legal
treatment of the LGBT community, reflecting the discriminatory attitudes of the
colonial era.
Sections
365 and 365A of the Penal Code criminalize "carnal intercourse against the
order of nature" and "gross indecency," respectively, which have
been broadly interpreted as prohibiting same-sex sexual activities (Penal Code,
1883). These provisions, rooted in outdated moral and religious beliefs,
effectively criminalize consensual same-sex relationships, perpetuating stigma
and marginalization.
Additionally,
Section 399 of the Penal Code has been utilized to target the transgender
community by criminalizing "cheating by personation" (Penal Code,
1883). This provision has been weaponized to discriminate against transgender
individuals, denying them the fundamental right to self-expression and gender
identity.
However,
there are these aforementioned anachronistic provisions in the Sri Lankan legal
system at present, yet the Sri Lankan courts have realized the need for a
change in certain aspects in respect of the new change in the societal culture
and the applicable international human rights standards. As in Amerasinghe
v. Daluwatta (2001), the case where the charge of homosexuality was
dismissed on procedural grounds, this point could be considered as a shift in
legal interpretation (Amerasinghe v. Daluwatta, 2001).
However,
this brief advancement in legal provisions was followed by the contrasting
position in another case of Galabada Payagalage Sanath Wimalasiri v. Officer
in Charge (2009) where the Supreme Court upheld the criminalization of
same-sex sexual activities thus making the legal position rather ambiguous (Galabada
Payagalage Sanath Wimalasiri v. Officer in Charge, 2009). This decision
clearly demonstrated that the prejudices of society are deeply rooted and the
court’s unwillingness to repeal the discrimination provisions in the Penal
Code.
This
irregularity and ambiguity of these judicial decisions symbolically represent
the legal status of the lesbian, gay, bisexual, and transsexual people in Sri
Lanka, highlighting the imperative desire of comprehensive legal changes in
consonance with certain international human rights norms and principles of
equality.
Thus,
it is important to note that though the Sri Lankan Constitution in its Article
12(1) promises equality for all persons before and under the law the concept of
equality in the Sri Lankan context, particularly when applied to the lesbian,
gay, bisexual and transgender community has been a contentious issue which has
often been defined, not necessarily by the Constitution, but by the prejudices
of society. This scenario underlines the importance of specifying the
constitution rights and having comprehensive legislation that provides
protection to members of the LGBT community.
3. Human Rights Perspectives
Nonetheless,
Sri Lanka has ratified some of the major international human rights conventions
such as ICCPR, CEDAW, and ICESCR (Kolbe and Solheim, 2021). These instruments
cherish principles of equality, non-discrimination, and human liberties of any
person and Gay, lesbian, Bisexual, Transgender (LGBT) persons included.
The
Universal Declaration of Human Rights (UDHR) and other Conventions which are
not directly applicable to Sri Lanka, are very useful in the understanding of
the protection of human rights. The first article of the UDHR is therefore a
reflection of the basic principle stipulating that all human beings are born
free and equal in dignity and human rights (UDHR, 1948). The ICCPR also accords
with this in the provision of Article 26 which outlines that everyone is
entitled to equal rights irrespective of race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other.
4. Societal Attitudes and Challenges
Sri Lanka by all means has legal and
human rights provisions to embrace its sexual minority, but today the Sri
Lankan ‘LGBT’ faces social issues and prejudice at a massive level. Essentials
needs, particularly food, is a challenge which triggers employment
discrimination, sexual harassment, and vertical violence making the
demographics feel socially excluded (Human Rights Watch, 2021).
Some doctors or other health care
workers have been witnessed to force clients to undergo anal or vaginal exams
in order to garner the evidence of homosexuality, which in the process, they
deny their human rights to bodily integrity (Human Rights Watch, 2021). Females
in the domestic violence scenario are also likely to be from the LGBT
community, and hence they are often reluctant to report the abuse due to the
possibility of even more abuses, lack of support from social organizations,
among others (Kolbe and Solheim, 2021).
Perceived cultural expectations and
reinforced feminine or masculine roles also inculcated as a Sri Lankan culture
likewise fuel the discrimination of the LGBT section. This paper will argue
that the contemporary ideas of family and gender roles are exclusionary, and
that the families excluded are convicted to remain outsiders (Human Rights
Watch, 2021). Also, the culturally held beliefs and perceptions affect the horn
of the LMGBT population in as much as the religious beliefs and interpretations
affect the social acceptability of their rights by religious leaders and groups
(Wickremesinghe, 2022).
In addition, there are no appropriate
anti-discrimination legislation to safeguard the rights of the LGBT people in
Sri Lanka; people from this community are discriminated in workplaces, schools
and universities, rental housing or accessing health facilities among others
(Equal Ground, 2022).
5. International Perspectives
Comparative study of the legal stance
taken on the issue involving the subject population in other nations can act as
good model for Sri Lanka to follow as it tries to move towards progression of
the status of the Gay community.
In UK, for example, albeit an
ill-advised outlook in the start manifested in the Buggery Act of 1533 that
condemned same sex relationships, has seen good progress being made within
recent years. The 1967 Sexual Offences Act, thus, proved a seminal moment, as
it removed the laws that outlawed homosexual acts between consenting adults in
private (Dryden, 2020). After that, the UK has persisted in improving the legal
rights and freedom of the gay community with significant laws including the
Gender Recognition Act 2004 and the Equality Act 2006.
The Gender Recognition Act, 2004 put
in place procedure through which one could gain a Gender Recognition
Certificate, thus affording legal rights for transsexuals. The Protection from
Harassment Act of 1997 left out sexual orientation and gender reassignment from
the list of protected characteristics Although the Employment Equality (Sexual
Orientation) Regulations of 2003 prohibited discrimination in the employment of
people based on their sexual orientation, the question of gender reassignment
was left out of the Employment Equality Act of 2010.
India, a country with a rich cultural
heritage and societal complexities similar to Sri Lanka, initially criminalized
same-sex relationships under Section 377 of the Indian Penal Code, a legacy of
British colonial rule (Patel, 2021). However, in a landmark decision by the
Supreme Court of India in Navtej Singh Johar & Ors. v. Union of India
(2018), Section 377 was struck down, decriminalizing consensual same-sex
relationships (Navtej Singh Johar & Ors. v. Union of India, 2018).
The court recognized the constitutional rights to equality, non-discrimination,
and personal liberty, setting a precedent for the protection of LGBT rights in
India.
In addition, the status of the LGBT
community has also improved in the global level with some countries such as Canada,
South Africa, and Australia have enacted laws and polices provision against
discrimination of the LGBTs. The Canadian Human Rights Act of 1985 has made it
clear that special care for the victims of unfair discrimination is required if
they are sexual minorities, and the Promotion of Equality and Prevention of
Unfair Discrimination Act of 2000 in South Africa and the Sex Discrimination
Act 1984 in Australia will have legal provisions to prevent discrimination
against the two minorities.
These international examples
demonstrate that legal reform and societal acceptance of the LGBT community are
achievable, even in countries with deeply rooted cultural traditions and
diverse religious beliefs. By learning from these experiences and best practices,
Sri Lanka can draw inspiration and guidance in crafting its own path towards
greater inclusivity and respect for the rights of the LGBT community.
Further, it would be pertinent to
note, communicating and interacting with international bodies and worldwide
discourses can afford greatest support to Sri Lanka in respect of creating
legal and social change. Internationally, there are numerous organizations
including the United Nations, Amnesty International and Human rights Watch that
have been involved in lobbying for the rights of the gay and lesbian persons
globally and have a wealth of knowledge, resources, training and Capacity
building tools that can be made available to Sri Lanka as it endeavors to
attain equality and non-discrimination.
Fortunately, there are strong norms,
standards, and practices in various international human rights instruments and
conventions as a benchmark upon which Sri Lanka can reform its laws and
policies. There is an Equal rights principle in the Universal Declaration of
Human Rights (UDHR), International Covenant on Civil and Political Rights
(ICCPR) as well as the International Covenant on Economic Social and Cultural
Rights (ICESCR) which should not only cover the conventional population but
also the LGBT group (UDHR, 1948; ICCPR, 1966; ICESCR, 1966).
To ensure legal reforms are effective
in changing culture, attitudes of the society and promote, protect, and fulfill
the human rights of gender minorities, Sri Lanka must engage with the global
community, learn from successes from other countries with diverse legal reforms
and get technical and political support and assistance from international
bodies.
By actively engaging with the
international community, learning from successful legal reforms in other
countries, and leveraging the support and expertise of global organizations,
Sri Lanka can strengthen its efforts to create an inclusive and equitable society
that respects the rights and dignity of the LGBT community.
6. Challenges and Barriers
Despite the efforts of human rights
organizations, civil society groups, and progressive voices within Sri Lanka,
several significant challenges and barriers continue to hinder the progress of
LGBT rights in the country:
1. Resistance from religious and
conservative groups:
Sri Lanka is a South Asian country that is known to have various religions and
cultures Of course there are some religious and conservatism groups who have
protested against Gay Rights and the implementation of laws that protect such
people. Such groups use religious beliefs, traditional cultural values, and
norms of a given society as reasons for opposing any changes to the existing
laws and policies, making it nearly impossible to make significant legal and
social progress (Wickremesinghe, 2022). The presented groups pose a significant
amount of resistance and convincing them and creating a dialogue is pivotal for
increased understanding.
2. Lack of consistent political will: Sri Lanka has witnessed a
multifaceted and more often than not an erratic political climate as far as
issues pertaining to the homosexuals are concerned, which does not exhibit a
steady political will in tackling the issues which the subjected community
undergoes. While some of the politicians have given positive remarks towards
the rights of the Lesbian, gay, bisexual and transgenders (LGBT) others have
been discriminative or have not even spoken at all for the cause (Jayaweera,
2021). Another execursive is that without efficient leadership and genuine
policy support from the policy makers and the government authorities the
advance in this sector might be slow or even non-existent.
3. Limited representation and
visibility:
There are several challenges facing the Lesbian, Gay, Bisexual, and Trans
individuals in Sri Lanka; a main one being slow integration, marginalization,
and lack of political voice in important decision making processes, media and
society. Such exclusion continues to reinforce the exclusion of individuals
based on their sexuality and adds to the stigma and misperceptions of the
difficulties of recourse to the daily lives faced by Lesbian, gay, bisexual,
and transgendered ( LGB&T ) citizens (Equal Ground, 2022). The LGBT
population’s presence and voices should also be given more space and promotion
in order for more people to be open and extend their understanding for the
community and its members.
4. Societal stigma and
discrimination:
Current eradicable prejudice and rebuilding of prejudices against the sexual
minorities are boldly marked in the Sri Lankan society which hinders the
acceptance of the LGBT group in the society (Human Rights Watch, 2021). These
inferiorities and prejudices appear in the form of harassment either verbally
or in physical forms, no hiring or renting houses and limited service
deliveries.
5. Limited access to resources and
support services: The
LGBT community in Sri Lanka often faces challenges in accessing essential
resources, support services, and safe spaces (Kolbe and Solheim, 2021). This
lack of access can exacerbate their vulnerability, isolation, and
marginalization, making it difficult for individuals to seek help, report
incidents of discrimination or violence, or receive appropriate support and
counseling.
6. Intersecting forms of
discrimination: People
within the LGBT population may experience diverse and compounded discrimination
on the basis of gender, race, class, or alternatively, disability. In any given
LGBT person, these multiple methodologies contribute to a more extensive issue
of oppression since the difficulties facing the individual balance on the
intersectionality of these various authorities.
7. Legal and institutional barriers: The law in Sri Lanka presents dire
hardship for the gay community but aside from the oppressively legal structures
to advocate for the gay community, are non-legal barriers within the judicial
system, police force, and the government bureaucracy. Such barriers can come in
the form of bias, insufficient sensitivity training or, lack of effective
execution of current laws and policies (Human Rights Watch, 2021).
To overcome the challenges and
barriers mentioned above, it will therefore need the support of different
stakeholders such as policymakers, leaders of different religions and
communities, civil societies organizations and the general public. This requires
the adoption of legal changes that promote and protect the rights of the gay
community, raising public awareness about discrimination and promoting
activities to enhance the capacity of the gay population in Sri Lanka, as well
as the development of supportive and tolerant environments that would accept
the gays, lesbians, bisexuals, and transgenders in the island.
7. Recommendations and Way Forward
To address the challenges faced by the LGBT community in Sri Lanka and ensure the realization of their rights, a comprehensive and multifaceted approach is required. The following recommendations are proposed:
1. Legal reforms: To eliminate and eliminate the legalized Discrimination of the LGBT community, review and repeal such provisions of the Penal Code of the Russian Federation as Sections 365, 365A, and 399 as well as adopt sufficient anti Discrimination legislation to protect members of the LGBT community from Discrimination in the spheres of employment, receiving education, housing, and health care.
2. Constitutional amendments: Pass an act that adds the “sexual orientation and genders” to the prohibited grounds for discrimination of the Sri Lanka Constitution in accordance to the Article 12(2).
3. Awareness and education initiatives: Promote LBGT friendly policies so that regular and widespread advocacy campaigns are developed to counter misinformation, prejudice and general negative perception from society. These antihuman smuggling campaigns should address different sectors namely policy makers, police agencies, health care professionals, teachers as well as other members of the society.
4. Inclusive policies and programs: Have more equality and non-discrimination policies and programs in LGB TA sectors like employment, schools, and hospitals.
5. Support services and safe spaces: Provide specific programs and facilities for the LHBT people offering them support services beyond any tomorrow in counseling, the law, health, and other fundamental needs.
6. Collaboration with religious and
community leaders:
Encounter and dialogue with the religious authorities and culture bearers of
the country to transform the levels of acceptance and respect for the rights of
homosexuals of the Sri Lankan culture and religious context.
7. Political commitment: Gain politically appropriate support and commitment from all level policymakers and government authorities to focus on the issues pertaining to the gay and lesbian including its ramifications on society and the allocation of requisite resources and instruments necessary for the proper dissemination of its policies and programs.
8. Representation and visibility: Promote the integration of the LGBT community in the decision-making forums, media and other domains of public life as a means of creating awareness and building acceptance of diversity within communities.
9. International cooperation: Familiarize yourselves with how jurisdictions that have tasted success in reforms as a means to seeking protection for the rights of the LGBT group have gone about their business with the various international organizations, civil society organizations and governments.
10. Research and data collection: Undertake studies and information gathering processes aimed at identifying the possible difficulties and vulnerabilities of the specified subject of concern in the context of the country in question, as well as the effectiveness and potential effects of the existing legislation and measures. Consequently, this data can be used for the formulation of policies and plans to help achieve specific goals without harming a patient.
11. Capacity building: Support civil society capacity building projects particularly for CSOs, human rights activists and other relevant actors who struggle to mainstream the rights of the gay and lesbian communities in Sri Lanka.
12. Intersectional approach: Employ an approach that takes into
account the disparities and oppressions faced by minorities or subgroups in the
lesbian, gay, bisexual, and trans community, where they are discriminated
against based on factors like sexual orientation and identity, gender,
ethnicity, class, disability or others.
8. Conclusion
Gay rights and their social and legal
perceptions in the Sri Lanka have not been an easy story to tell. The current
legal agenda involves the criminalization of some aspects of the LGBT
identification and relations even though there are cries of reform to the
existing legislation to conform to the recognition of human rights, non
discrimination based on sexual orientation among other tenets. Discrimination
and marginalization are institutions in every society and culture, and it is
essential to reduce these acts, influence, and attitudes supported by societal
norms, including religious precepts, and create extensive projects that
increase awareness, educate, and create equal opportunities. With reference to
the aforementioned countries that adopted legal and social changes to gain
acceptance and respect regarding the homosexual population group’s rights and
human dignity, Sri Lanka must embrace change for the promotion of the same.
In order to address the difficulties
experienced by the Sri Lankan LGBT population, numerous efforts must be made at
once – from the legislative level, including the change of the Constitution of
Sri Lanka and improvements in the existing legislation, to preventive
education, the development of equal and tolerant policies and programs, the
availability of social and informational support, and partnership with
religious and community leaders. It is not a process that any country, Ethiopia
inclusive, can engage in casually as it requires consistent effort, political
support, and knowledge of cultural practices and human rights.
Nevertheless, this issue goes beyond
the legal framework of a given country and becomes the question of human rights
and dignity to be tolerant and accepting towards individuals with physical
disabilities. It is suggested that Sri Lanka must look forward to a new
progressive legislation where LGBTS persons are treated equally like other
citizens in social, legal, cultural, institutional realms, in order to create
justice.
9. References
1. Amerasinghe
v. Daluwatta [2001] C.A 128/98 (Sri Lanka).
2. Canadian
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