Criminalising same-sex sexual relations: Implications beyond the law

NEW DELHI, INDIA - DECEMBER 15: LGBT (lesbian, gay, bisexual and transgender) activists protest against Supreme Court's judgement on Section 377 that upheld section 377 of the Indian Penal Code that criminalizes homosexuality at Jantar Mantar on December 15, 2013 in New Delhi, India. India's Supreme Court last week reversed a landmark 2009 lower court order that had decriminalized gay sex. (Photo by Mohd Zakir/Hindustan Times via Getty Images)

Shihara Maduwage, EQUAL GROUND

Sri Lanka has the misfortune of being one of the 72 countries in the world that criminalise private, consensual, same-sex sexual activity among adults. Unsurprisingly, almost half of these countries are Commonwealth jurisdictions, owing to the archaic Victorian laws that were imposed on the colonies during the British imperial rule.

Colonial Legacy: Anti-LGBTIQ Laws in Practice

Sri Lanka is one of the countries where these laws (or some form of them) are still in practice. Here, same-sex sexual relations among consenting adults are criminalised by Sections 365 and 365A of the Penal Code, which states that “carnal intercourse against the order of nature” (in other words, any type of sex that is considered unnatural) and “acts of gross indecency” are criminal offences punishable by the law, carrying a sentence of up to 10 years. Since they were amended in 1995 (with the word ‘male’ being replaced with ‘person’), Sections 365 and 365A do not specify that these offences pertain to same-sex sexual relations, but they are most often used against Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer/Questioning (LGBTIQ) community, as they originated from sodomy laws put in place during the colonial era.

According to Section 365, sexual intercourse needs to occur for it to be constituted as a crime in the eyes of the law; 365A, on the other hand, is more ambiguous; the term “gross indecency” can be interpreted in different ways and does not necessarily mean that a sexual act needs to take place for a charge to be placed. In other words, even being perceived as gay or transgender is enough for the police to arrest individuals. The police also often claim to act on ‘tip-offs’, without actual evidence.  The vague wording in these laws are problematic, along with the fact that these provisions do not take the concept of consent into account.

In addition, the Vagrancy Law and Section 399 of the Penal Code regarding ‘cheating by personation’ (referring to impersonation) are also used against the LGBTIQ community in Sri Lanka, particularly against transgender individuals.

That said, while “acts of gross indecency” and “unnatural carnal intercourse” are criminalised, the law does not outright prohibit diverse Sexual Orientations and/or Gender Identities/Expressions (SOGIE). As mentioned before, the reason that these laws are used against the LGBTIQ community is owing to Sri Lanka’s colonial past. In fact, fundamental rights recognised by the Sri Lankan constitution includes non-discrimination under article 12(2) which states that “no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, and place of birth or any one of such grounds”, while article 12(1) ensures that “all persons are equal before the law and are entitled to the equal protection of the law”. While article 12(2) does not explicitly mention sexual orientations and gender identities, on several occasions, the Sri Lankan government has stated before the United Nations that the LGBTIQ community is constitutionally protected, and non-discrimination on SOGIE is implied and applicable under this constitutional provision. For instance, in 2014 Additional Solicitor General, Bimba Jayasinghe Thilakeratne told the UN Human Rights Council (UNHRC) that discrimination based on one’s sexual orientation and/or gender identity was considered unconstitutional. In 2017, the government pledged to “ensure and strengthen respect for fundamental rights of all persons, including those from the LGBTIQ community, and address concerns raised in that regard.” In addition, with the intervention of the Human Rights Commission in 2016, the Registrar General’s Department and the Ministry of Health took  steps to provide Gender Recognition Certificates (GRC) to transgender persons who wish to amend the gender assigned to them at birth in their official documents.

Beyond the Legal Scope

Unfortunately, governments thus far have not repealed anti-LGBTIQ laws, such as Sections 365 and 365A. In fact, several policymakers have made anti-LGBTIQ remarks in public, insisting that LGBTIQ rights were against the culture and values of Sri Lanka. In 2018, President Maithripala Sirisena, went as far as to attack Prime Minister, Ranil Wickremesinghe, referring to the latter and ministers close to him as a “samanala rela,” – a derogatory term alluding to minority sexual orientations.

It is clear that the presence of these laws has implications that go far beyond its legal scope. In other words, these are not simply dormant laws that only exist in the annals of Sri Lanka’s Penal Code. They are used to harass, threaten, intimidate, stigmatise, and discriminate against anyone who is seen to be deviating from the rigid, heteronormative structures that govern Sri Lankan society.

Police Abuse and Harassment

One of the most concerning issues is the way Sri Lanka’s police – as the enforcers of law and order – wield these legislations to persecute anyone who does not conform to heteronormative standards, particularly LGBTIQ individuals. In a recent joint press release (20 October), EQUAL GROUND (EG) and Human Rights Watch (HRW) revealed that, in the last few years, Sri Lankan police have not only arrested individuals perceived as engaging in “acts of gross indecency” in public spaces, but have raided private spaces such as hotel/motel rooms as well as people’s private residences. According to the performance report (2018) of the Sri Lanka police, submitted to the Parliament, homosexuality is considered a “vice” which is defined as “offences that impact adversely on morality and well-being which is expected from the society.” The report reveals that, under this provision, the police has prosecuted 33 people for homosexuality in 2016, six in 2017, and nine in 2018. All of them are identified as men in the report. This is in direct contradiction to the claim made by then Health Minister, Rajitha Senaratne in 2017 that the government “will not prosecute anyone for practicing homosexuality.” In addition, the Grave Crimes Abstract for 2019 has recorded 710 cases of “Unnatural Offences / Grave Sexual Abuse. While it is difficult to discern exactly how many cases of “unnatural sex” or cases of same-sex sexual relations have been recorded, as it is lumped together with cases of grave sexual abuse, anecdotal evidence shows that LGBTIQ persons arrested consensual for same-sex sexual relations are included here. Furthermore, the US Department of State Human Rights Report on Sri Lanka in 2018 noted that “police used the threat of arrest to assault, harass, and sexually and monetarily extort LGBTI[Q] individuals”, and that “transgender persons continued to face societal discrimination, including arbitrary detention, mistreatment, and discrimination accessing employment, housing, and health care.”

Disturbingly, the EG-HRW joint press release revealed that, in the 2017 – 2020 period, the authorities forced medical tests that include anal/vaginal examinations on at least seven individuals to provide “proof of homosexual conduct.” International bodies such as the World Health Organisation (WHO) have noted that anal and vaginal exams have no scientific or medical basis and have been largely discredited as viable proof of “sexual activity”; the WHO has called these examinations a form of violence and torture. And yet, Sri Lanka’s Judicial Medical Officers – who are licensed doctors – have been conducting these examinations on LGBTIQ individuals upon their arrest. These revelations caused Sri Lanka’s Minister of Justice, Mr. Ali Sabry, to issue a statement saying that he has requested relevant authorities to refrain from this practice till these events can be properly inquired into.

While this is a positive move, there is always the danger that these practices could continue, unless laws criminalising same-sex sexual relations are repealed. Moreover, the murky nature of these laws enables the police and the lawmakers to enforce these laws as they see fit, which inflicts a power imbalance that marginalises the LGBTIQ community and forces them to live in fear and anxiety.

Discrimination and Stigmatisation in Social Spheres

As mentioned before, legal repercussions are not the only challenges that Sri Lanka’s LGBTIQ community face. The existence of anti-LGBTIQ laws reinforces stigma and negative stereotypes about LGBTIQ persons and invites and excuses discrimination and violence against the queer community. For instance, in September this year, a transgender individual was denied entry to a popular bar in Colombo simply due to her “appearance”.

Unfortunately, this is not a one-time occurrence. There are also countless incidents where LGBTIQ individuals are stigmatised, harassed, and discriminated against; acts such as denying entry into establishments and public spaces, misgendering or using incorrect pronouns, hurling derogatory remarks, bullying and verbal abuse, and even physical violence are all too common in Sri Lanka. There is also anecdotal evidence that LGBTIQ individuals whose SOGIE is known are stigmatised, bullied, and harassed at workplaces. There are times when they have been denied employment, fired, or denied promotions simply because of their Sexual Orientation and/or Gender Identity/Expression. There is also evidence of instances where LGBTIQ individuals have been denied healthcare in Sri Lanka. In a research study by EQUAL GROUND (Mapping LGBTIQ Identities in Sri Lanka, forthcoming), 6% of LGBTIQ respondents mentioned that they were refused medical treatment, while 10% mentioned that they have been refused employment. Furthermore, the study noted that 12% of LGBTIQ respondents have been forced out of work or place of education. This means that the economic security, the physical wellbeing, and the standard of living of LGBTIQ individuals in Sri Lanka are severely compromised.

Psychological Issues and Mental Health Well-being

Inevitably, such challenges – especially not being able to be their ‘true selves’ – has psychological implications. Criminalisation of same-sex sexual relations among adults leads to stigma and marginalises the LGBTIQ community. It is no surprise that individuals who are subject to discrimination and harassment experience stress and mental health issues. Research has shown that globally, LGBTIQ persons experience much higher rates of depression, anxiety, and other mental illnesses – even leading to self-harm and suicide in certain instances.

EG’s Mapping Exercise shed light on some grave mental health and self-esteem issues faced by Sri Lanka’s LGBTIQ community. For instance, it revealed that a significant number of LGBTIQ individuals are uncomfortable with / afraid of the idea of coming out and revealing their sexual orientation and/or gender identity to others. In the study, 38% of the LGBTIQ respondents said they do not want to reveal their sexual orientation / gender identity to anyone, while 42% of them said that they are not sure if they should reveal it to anyone. Meanwhile, 26% of the LGBTIQ respondents believed that they are abnormal and/or saw their SOGIE as a mental illness. Many of them also felt that they could not achieve their full potential in life as they are hindered by their SOGIE. Tragically, some of the respondents also believed that there was something wrong with them for being born as an LGBTIQ individual and said if they could, they would like to change their SOGIE to fit in with the heteronormative standards of Sri Lankan society, just to make their lives easier. On top of these stresses and anxieties, the fear of persecution by the law only makes things worse for queer individuals. Not only that, it goes to show how far reaching the implications of anti-LGBTIQ laws really are and prove that effects of such laws extend far beyond their legal scope and seep into every aspect of the lives of queer individuals.

EQUAL GROUND’s Mapping Exercise clearly demonstrates that many LGBTIQ individuals consider being granted the freedom to live freely without being discriminated against and having the right to live the way they are as prerequisites for coming out. However, laws that criminalise same-sex sexual relations, such as Sections 365 and 365A, directly causes or amplifies violence, stigma, and discrimination against the queer community, rendering them invisible and making it difficult for them to live their lives freely. As such, considering the inhumane, cruel nature of these laws and their implications to a just society, it is high time that the Sri Lankan government took measures to repeal these archaic laws and decriminalise consensual, same-sex relations among adults.