Sri Lanka Government Says LGBT Rights Are Constitutionally Protected

Grace Poore, Regional Program Coordinator for Asia and Pacific Islands, IGLHRC

During a review of its record on civil and political rights by the United Nations Human Rights Committee on October 7-8 in Geneva, the government of Sri Lanka repeatedly stated that lesbian, gay, bisexual and transgender (LGBT) persons in Sri Lanka are constitutionally protected from discrimination.

In written response to the Human Rights Committee’s questions about Sri Lanka’s failure to protect LGBT people from widely prevalent discrimination, the government stated: “Article 12 of the Sri Lanka Constitution recognizes non-discrimination based on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds as a Fundamental Right. This measure protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities.”  

Ms. Bimba Jayasinghe Thilakeratne, Additional Solicitor General with the Attorney General’s Department of Sri Lanka additionally reiterated,  “Article 12.1 ensures equality for sexual orientation and gender identity” and that under Article 12.2 “laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional.” However, she specified, “Sections 365 and 365A [of Sri Lanka’s Penal Code] do not target any particular group but are there to protect public morality.” These provisions—commonly known as anti-sodomy laws—criminalize “unnatural” sex and “acts of gross indecency,” including homosexuality and lesbianism.

The International Gay and Lesbian Human Rights Commission (IGLHRC) submitted a report to the Human Rights Committee about violence and discrimination against lesbians, bisexual women and transgender (LBT) persons both in the public and private spheres. IGLHRC noted that the Sri Lankan Constitution’s lack of specific anti-discrimination language on sexual orientation and gender identity places LGBT people at a disadvantage in accessing rights, protections and legal guarantees.  In addition to Section 365A, the Vagrancy Law and the Gender Impersonation Law (Section 399) were used to intimidate, arbitrarily question, arrest and detain individuals (such as butch lesbians, masculine-looking women, and transgender men and women) whose appearance did not conform to gender norms.

During the review, the Human Rights Committee asked the Sri Lanka government what practical steps it was taking to widen Article 12 of the Constitution and explicitly mention sexual orientation and gender identity as prohibited grounds of discrimination in both public and private; withdraw discriminatory provisions in criminal law; and whether it would recognize the right of LGBT persons to use Article 12 to submit complaints when their rights were violated, and whether their applications for a court hearing would be accepted

Local LGBT activists in Sri Lanka are generally pleased that their government has publicly acknowledged that it interprets Article 12 of the Constitution as also relevant for LGBT people.  Rosanna Flamer-Caldera from Equal Ground says, “While this may not rain sunshine for the LGBTIQ community just yet, there is now at least, a sense of hope things will start changing in Sri Lanka and that the LGBTIQ community will be able to hold their heads a bit higher as the days go by.  We urge the Government to open dialog with the LGBTIQ community.”

Earlier this year, IGLHRC published a report on violence against LBT people in five countries in Asia, including Sri Lanka. This research concluded that LBT Sri Lankans suffered high levels of sexual violence, emotional violence and physical violence at home and in public spaces with no legal recourse because of existing laws, which exposed victims of violence to the risk of being charged by police for homosexuality, lesbianism or gender non-conformity.

Grace Poore, IGLHRC’s Regional Program Coordinator for Asia noted, “Perpetrators of violence used the presence of discriminatory laws and the social stigma against LBT people to threaten to reveal their sexual orientation, which often compels victims to hide the violence and not seek assistance.”

“LBT persons facing family or partner violence need to be able to seek redress under Sri Lanka’s Domestic Violence Law without being dismissed, bullied and ridiculed by the police and demeaned in court,” Poore added.

The shadow report submitted by IGLHRC to the Human Rights Committee highlighted the following key concerns:

  • LBT persons are not protected from sexual harassment in the workplace and are unable to access formal redress without incurring additional further abuse and harassment from employers.
  • LBT individuals face job discrimination and some have lost employment because their identity cards did not match their appearance.
  • Family members use physical and emotional violence to punish LBT individuals and force them to conform to gender norms.
  • Although the Domestic Violence Act allows cohabiting couples to seek redress, the risk of penalties under the anti-sodomy law (Section 365A) and gender impersonation law (Section 399) of the Penal Code deters LBT persons from filing complaints and seeking protection orders.
  • In a context where LBT people are already stigmatized and public officials express hostility towards gays and lesbians, the presence of discriminatory laws such as Section 365A and Section 399 of the Penal Code, and the Vagrancy Ordinance of 1842 paves the way for police and anti-gay groups to brand all LGBT people as perverts and criminals.

Background

The International Covenant on Civil and Political Rights (ICCPR) is a treaty that outlines fundamental rights guaranteed to all individuals regardless of race, color, sex, language, religion, opinion, nation, property, birth or other status. The ICCPR was adopted by the United Nations General Assembly in 1966 and entered into force in 1976. So far, 166 states, including Malawi, are parties to the Covenant. The Human Rights Committee is responsible for monitoring the implementation of the treaty by States Parties. The 18-member committee also has the authority to interpret the treaty through issuing general comments.

The ICCPR requires all state parties to submit Periodic Reports about the implementation of the treaty’s principles to the United Nations Human Rights Committee. Based on the state reports and information gathered by Committee experts, the Committee develops a list of questions (List of Issues) regarding the status of civil and political rights in that country. State Parties often provide a written response to those questions ahead of the official review session of the state’s compliance with the ICCPR. The Committee also accepts reports from non-governmental organizations regarding the human rights situation in that country. These reports are known as Shadow Reports.

Based on the State report, the State written answers to the List of Issues, shadow reports, the State presentation to the Committee, and the interactive dialogue between the State and the Committee, the Committee releases Concluding Observations with a list of concerns and recommendations based on the State’s compliance with it’s treaty obligations. The State will then formally acknowledge which of the Committee recommendations and concerns it will abide by. The Concluding Observations and the State response are powerful tools for domestic advocates seeking to advance human rights and governmental accountability.