LGBT rights in Sri Lanka

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search

LocationSriLanka.png
StatusIllegal under Article 365A, but unenforced and now dormant as per Supreme Court judgement, with certain sources describing the situation as decriminalized
Gender identityTransgender people allowed to change gender, following surgery and therapy
Discrimination protectionsYes, constitutional protections, and amendments to the human rights plan.
Family rights
Recognition of relationshipsNo recognition of same-sex couples
Adoption

LGBTIQ rights in Sri Lanka have mostly remained repressed since the colonial era. The island's legal framework lacks the concept of judicial review, which means that the supreme court cannot create or repeal law - at the most it can refuse to enforce law.[1]

A 135 year old British law criminalizing gay sex remains on the books, however the law is both de jure and de facto dormant[2] and has been described as decriminalized[3]. The US Department for Justice wrote that the police were "not actively arresting and prosecuting those who engaged in LGBTIQ activity" and that the provisions have also reportedly not led to any convictions to date despite "complaints citing the provisions of the law [being] received by the police". It has also been ruled non-enforceable by the Supreme Court.[4] Sri Lanka has implemented anti-discrimination laws for homosexuals as part of its constitution and human rights action plan.[5] It has recognized transsexuals for a very long time and has been making it easier for transsexuals to identify and convert in recent years[6][7]. A number of reports state that the concept of third gender has escaped the island, nevertheless binary concepts are found that are similar to third gender.[8]

However, many sexual minorities do not fight against such discrimination, including police harassment, as they may remain closeted due to homophobia they face in their personal lives, and this might lead them to hold a valid fear of being outed during the anti-discrimination process.[9]

Overview[edit]

The current legal framework of Sri Lanka[10] mostly derives from the European/Judeo-Christian constructs[11] imported into the island during the colonial era[12], most of it being predominantly British law[13] and the prior colonial Roman-Dutch law[14]. The most famous of these discriminatory laws[15] is the now dormant (and variously reported as decriminalized[3]) Section 365 that criminalizes homosexual sex[16], but other laws against gender impersonation[17] and pimping[18] can also be considered to discriminate against LGBT.[19] Further problems with the colonial legal framework include the lack of protections and supports for the sexual minority community, including the lack of specific wording fighting discrimination against sexual minorities[20] nor the recognition of transgender and third gender concepts[21] (who have been technically discriminated against through the Vargrants Ordinance).[22] The Supreme Court and the various Governments of Sri Lanka have however attempted to remedy this situation[23] by including sexual minorities within generic anti-discrimination clauses[24] and attempting to set dormant a variety of laws[25] (though the colonial legal code does not provide the Supreme Court with the power to create or repeal law).[26]

The political parties of Sri Lanka are formed through collations of numerous smaller parties[27] reminiscent of the party politics in former colonial power Netherlands[28][29], and hence confusion and constant movement can be found in terms of their stances to homosexuality. Both the conservative government of Srisena and the socialist government of Rajapaska have stated that discrimination against sexual minorities is unconstitutional and that Section 365 cannot be legally applied to consensual homosexual sex[30], but in contradiction to this the socialist collation refused to allow the conservative government's attempted deletion of Section 365 from legal texts.[31] A number of non-governmental organizations[32], lawmakers and religious organizations[33][34] have come out in favor of sexual minorities, and openly homosexual gay[35] and transgender lawmakers[36] can be found in the parliament and the government. A variety of public institutions including the health service[37] and the police[38] have been introducing internal commitments to improve living conditions for sexual minorities.

Sri Lankan societies generally takes a modestly unobtrusive and traditionalist view of homosexuality and certain traditions exist for the promotion of transgenders (albeit third gender appears to have escaped the island despite it having roots historically within Sri Lankan culture) and consequently these laws have mostly been applied loosely (if ever) and discrimination by police (and the like) is often associated with corruption and/or attitudes towards sexual promiscuity which are applied to heterosexuals as well. A number of issues remain untouched by general discussion including that of the status of sexual minorities within the military service, and intersex rights[39] have mostly escaped both mainstream discussion and discussion by LGBT lobbies. Other laws and legalities that can negatively affect sexual minorities are more widely discussion in the Sexual Minorities in Sri Lanka article.


Criminalization[edit]

Section 365 and 365A[edit]

These sections of the Penal Code refer to unnatural offences and acts of gross indecency. They state that the act should be "punished with rigorous imprisonment for a term not less than 10 years and not exceeding twenty years with a fine and compensation".[40] As of 2018 the country has not convicted anyone under those provisions since 1948.[41][42], but in 1995, the section was amended slightly to expressly prohibit "gross indecency" no matter the gender of the participants.[43]

In November 2017, Deputy Solicitor General Nerin Pulle stated that the government would move to decriminalize same-sex sexual activity.[44] And the law has been declared unenforcable by the Supreme Court of Sri Lanka and the law has been described as 'decriminalized'[45]; although the country's constitution does not provide the Supreme Court the powers to completely expel a law from the books; it does however create case law and effectively makes the law dormant.[46] [47]An attempt by the government to include its repel into the human rights action plan was prevented by opposition from the UPFA.

Section 399[edit]

This section criminalized gender impersonation and is often used against transgendered people. It can used in situations where a person has converted to another gender yet bears a different gender on their documentation. It is however legally possible to change your gender in Sri Lanka.[40]

Section 07 / 1841 Vagrants Ordinance[edit]

This act criminalizes soliciting and acts of indecency in public places. It has been used against sex workers and sexual minorities. A maximum term of six months and a fine of 100 rupees is imposed as punishment.[40]

Discrimination[edit]

Military Service[edit]

Blood Donations[edit]

The National Blood Transfusion Service bans people who engage in risk behavior from donating blood. It classifies homosexual sex as a risk behavior, along with unrelated behaviors such drug use and having more than one sexual partner, so consequently LGBT who engage in homosexual sex are banned from donating blood through the NBTS.[48]

Recognition and Anti-Discrimination Protections[edit]

Sex[edit]

Section 365[edit]

Section 365 criminalized homosexual sex, but it is considered to be de jure and de facto dormant[49] , with certain outlets reporting the situation as being decriminalized.[50]

Supreme Court[edit]

The Supreme Court of Sri Lanka has recognized that "the contemporary thinking, that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation".[51]

Government[edit]

Both the socialist government of Rajapaska and the conservative government of Sirisena have stated " that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional".[52]

Family Law[edit]

Sri Lankan family law does not recognize same-sex marriages or same-sex civil unions.

Anti-Discrimination Law[edit]

Supreme Court[edit]

The Supreme Court of Sri Lanka has recognized that "the contemporary thinking, that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation".[51]

Constitutional Protections[edit]

The Government of Sri Lanka reported to the United Nations Human Rights Committee on 7–8 October 2014 that sexual minorities were now protected under existing generic anti-discrimination laws provided in the Constitution.[53] The Government of Sri Lanka stated that such protections were "‘implicit’ in the Sri Lankan constitution and that the Government will be making such protections 'explicit' through new law[54]

However, discrimination against sexual minorities still remains a problem. Several lawyers and charities have called for specific wording in the constitution stating that discrimination against sexual minorities is illegal.[55]

Law[edit]

In 2017, the Government also decided to update their Human Rights Action Plan with an addendum that bans discrimination against someone based on his or her sexual orientation.[56][57] Both the socialist government of Rajapaska and the conservative government of Sirisena have stated " that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional".[52]

Gender Identity[edit]

Transgender[edit]

A patient who wishes to undergo sex reassignment surgery (SRS) must consult a psychiatrist for an initial evaluation. If the person is deemed to be of sound mental status, an official letter endorsing this can be issued. The patient can now start to undergo necessary hormone therapy prior to any surgical intervention. It can often be troublesome to find therapists who are understanding of transgender issues.[58]

It is currently possible for transgender individuals to obtain a new identity card from the Department of Registrations of Persons that is concordant with their gender identity, upon the provision of correct documentation to the department. However, many transgender individuals complain that they are unable to obtain the required documents (mainly medical notes) and therefore cannot register themselves for a new ID.[59]

Intersex[edit]

Gender dysphoria is still classified as a mental health problem.[60]

Third Gender[edit]

The concept of third gender is not recognized under Sri Lankan law.[61]

LGBT flag map of Sri Lanka

Summary table[edit]

Legality of same-sex sexual activity Illegal under Article 365A, but unenforced and now dormant as per Supreme Court judgement, with certain sources describing the situation as decriminalized
Anti-discrimination laws Yes
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No (Married couples only)
LGBT people allowed to serve openly in the military No
The right to change legal gender Yes
Recognition of third gender No
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No[48]

See also[edit]

References[edit]

  1. ^ "The battle against homophobia in Sri Lanka". Sunday Observer. 2018-09-22. Retrieved 2018-09-30.
  2. ^ "' SL should take guidance from Indian counterparts '". www.dailymirror.lk. Retrieved 2019-01-23.
  3. ^ a b www.themorning.lk http://www.themorning.lk/road-to-reform-lgbtiq-rights-in-sri-lanka/. Retrieved 2019-01-23. Missing or empty |title= (help)
  4. ^ "Department for Justice" (PDF).
  5. ^ "LGBT community yearns for acceptance by society". Sunday Observer. 2018-06-23. Retrieved 2018-09-09.
  6. ^ ""All Five Fingers Are Not the Same" | Discrimination on Grounds of Gender Identity and Sexual Orientation in Sri Lanka". Human Rights Watch. 2016-08-15. Retrieved 2018-09-09.
  7. ^ http://joshhm.sljol.info/articles/10.4038/joshhm.v3i0.63/galley/55/download
  8. ^ http://apcom.org/wp-content/uploads/2018/07/MSA_CountrySnapshots-SRI_V5.pdf
  9. ^ "Sri Lankan Police Arrest a Lesbian Couple and Police justifies its Action | Sri Lanka Brief". srilankabrief.org. Retrieved 2018-10-05.
  10. ^ http://hrlibrary.umn.edu/research/srilanka/statutes/Penal_Code.pdf
  11. ^ "Full text: Supreme Court judgment on Section 377 - Times of India â–º". The Times of India. Retrieved 2019-01-26.
  12. ^ http://groundviews.org/2017/01/22/repeal-colonial-era-laws-that-entrench-discrimination-and-perpetuate-violence/
  13. ^ "University of Minnesota Human Rights Library". hrlibrary.umn.edu. Retrieved 2019-01-26.
  14. ^ www.jstor.org/stable/23242905?seq=1#page_scan_tab_contents
  15. ^ "Removing barriers for LGBT + people in Sri Lanka". www.dailymirror.lk. Retrieved 2019-01-26.
  16. ^ "Sri Lanka LGBTI Resources | Rights in Exile Programme". www.refugeelegalaidinformation.org. Retrieved 2019-01-26.
  17. ^ "PressReader.com - Connecting People Through News". www.pressreader.com. Retrieved 2019-01-26.
  18. ^ Refugees, United Nations High Commissioner for. "Refworld | Sri Lanka: Treatment of sexual minorities, including legislation, state protection, and support services". Refworld. Retrieved 2019-01-26.
  19. ^ Avenue, Human Rights Watch | 350 Fifth; York, 34th Floor | New; t 1.212.290.4700, NY 10118-3299 USA | (2018-09-12). "Sri Lanka Should Take Up the Challenge on LGBT Rights". Human Rights Watch. Retrieved 2019-01-27.
  20. ^ brian (2014-10-20). "Sri Lanka Government Says LGBT Rights Are Constitutionally Protected". Leading Global LGBTIQ Human Rights Organization. Retrieved 2019-01-27.
  21. ^ http://www.aidsdatahub.org/sites/default/files/publication/Sri_Lanka_Rapid_Situational_Assessment_of_TGs_2017.pdf
  22. ^ http://womenstudies.co/wp-content/uploads/2018/04/Aruni-Wijayath.pdf
  23. ^ http://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/745437/Sri_Lanka_-_SOGIE_-_CPIN_-_v3.0__October_2018_.pdf
  24. ^ http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/LKA/INT_CEDAW_NGO_LKA_24294_E.pdf
  25. ^ www.i-probono.com https://www.i-probono.com/index.php?/news-more. Retrieved 2019-01-27. Missing or empty |title= (help)
  26. ^ http://www.supremecourt.lk/images/stories/supreme_court/constitution17th.pdf
  27. ^ http://www.veriteresearch.org/wp-content/uploads/2018/06/Mapping_Sri_Lanka_s_Political_Parties_Actors_and_Evolution.pdf
  28. ^ "The impact of proportional representation and coalition government on fiscal policy". Adam Smith Institute. Retrieved 2019-01-27.
  29. ^ October 3rd; Sikk, 2016|Allan; current-affairs; Politics, E. U.; featured; Comments, Raimondas Ibenskas|0 (2016-10-03). "Mergers and splits: How party systems have changed in Central and Eastern Europe since 1990". EUROPP. Retrieved 2019-01-27.
  30. ^ "' SL should take guidance from Indian counterparts '". www.dailymirror.lk. Retrieved 2019-01-27.
  31. ^ roar.media https://roar.media/english/life/reports/sri-lanka-officially-refuses-go-gay/. Retrieved 2019-01-27. Missing or empty |title= (help)
  32. ^ https://www.researchgate.net/publication/307978149_DECRIMINALIZING_SAME_SEX_RELATIONS_IN_ASIA_SOCIO-CULTURAL_FACTORS_IMPEDING_LEGAL_REFORM
  33. ^ http://www.forum-asia.org/uploads/wp/2016/08/Human-Rights-in-SL-one-year-after-parliamentary-elections-INFORM-18Aug2016.pdf
  34. ^ "Asgiriya Chapter calls for the right to equality for LGBT | Sri Lanka Brief". Retrieved 2019-01-27.
  35. ^ "Standing Up For The Gay Politician: Mangala Samaraweera On Right Track?". Colombo Telegraph. 2017-05-08. Retrieved 2019-01-27.
  36. ^ "Maha Sanga Protests Appointment Of First Transgender Governor". Colombo Telegraph. 2016-03-26. Retrieved 2019-01-27.
  37. ^ http://www.health.gov.lk/enWeb/HMP2016-2025/Curative%20%20Services%20%20-.pdf
  38. ^ admin (2018-06-01). "Police admit isolated incidents reported targeting LGBT persons". Colombo Gazette. Retrieved 2019-01-27.
  39. ^ http://lib.ohchr.org/HRBodies/UPR/Documents/Session2/LK/EG_LKA_UPR_S2_2008_EqualGround_uprsubmission.pdf
  40. ^ a b c "Removing barriers for LGBT + people in Sri Lanka". Retrieved 2018-09-30.
  41. ^ Elliott, Josh (6 September 2018). "India legalized homosexuality, but many of its neighbours haven't". Global News. Retrieved 9 October 2018.
  42. ^ "Human rights violations against LGBTIQ individuals in Sri Lanka" (PDF). ILGA. Equal Ground. Retrieved 9 October 2018.
  43. ^ "Sodomy Laws, Sri Lanka". galpn.org. Retrieved 2011-02-05.
  44. ^ Sri Lanka promises to decriminalize homosexuality and to protect LGBTI people
  45. ^ www.themorning.lk http://www.themorning.lk/road-to-reform-lgbtiq-rights-in-sri-lanka/. Retrieved 2019-01-23. Missing or empty |title= (help)
  46. ^ "The battle against homophobia in Sri Lanka". Sunday Observer. 2018-09-22. Retrieved 2018-10-07.
  47. ^ www.themorning.lk http://www.themorning.lk/road-to-reform-lgbtiq-rights-in-sri-lanka/. Retrieved 2019-01-23. Missing or empty |title= (help)
  48. ^ a b "Donate Blood". www.nbts.health.gov.lk. Retrieved 2019-01-21.
  49. ^ "' SL should take guidance from Indian counterparts '". www.dailymirror.lk. Retrieved 2019-01-23.
  50. ^ www.themorning.lk http://www.themorning.lk/road-to-reform-lgbtiq-rights-in-sri-lanka/. Retrieved 2019-01-23. Missing or empty |title= (help)
  51. ^ a b http://www.supremecourt.lk/images/documents/sc_appeal_32_11.pdf
  52. ^ a b i-probono.com https://i-probono.com/index.php?/news-more. Retrieved 2019-01-23. Missing or empty |title= (help)
  53. ^ brian (2014-10-20). "Sri Lanka Government Says LGBT Rights Are Constitutionally Protected". OutRight. Retrieved 2017-08-31.
  54. ^ "EQUAL GROUND - Sri Lanka commits to human rights protections for LGBTIQ people before the UN". equal-ground.org. Retrieved 2019-01-25.
  55. ^ "Removing barriers for LGBT + people in Sri Lanka". www.dailymirror.lk. Retrieved 2019-01-26.
  56. ^ "Sri Lanka Keeps Homosexuality A Crime, But Bans Anti-LGBT Discrimination". LOGO News. Retrieved 2017-08-31.
  57. ^ Sal, Adam; Ra 1/19/2017. "Sri Lanka Keeps Homosexuality A Crime, But Bans Anti-LGBT Discrimination | NewNowNext". www.newnownext.com. Retrieved 2019-01-26.
  58. ^ Jayasinha, Anukshi (2016-10-05). "What It Means To Be Transgender In Sri Lanka". Roar Reports. Retrieved 2017-08-31.
  59. ^ "Who am I?". Retrieved 2017-08-31.
  60. ^ Malalagama, A.S. (December 2017). "The shifting landscape of Gender Identity and the situation in Sri Lanka". Sri Lanka Journal of Sexual Health and HIV Medicine. Volume 3: 1–50 – via DOI.
  61. ^ http://joshhm.sljol.info/articles/10.4038/joshhm.v3i0.63/galley/55/download/

External links[edit]