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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]

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
MilitaryNo
Discrimination protectionsYes, constitutional and legal protections on the grounds of sexual orientation
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

Article 365 of the Sri Lankan Penal Code that criminalizes same-sex sexual acts 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 transgender people for a very long time and has been making it easier for transgender people to identify and transition 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.[clarification needed][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]

Contents

OverviewEdit

The current legal framework of Sri Lanka[10] mostly derives from the European/Christian constructs[11] was 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 people.[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.

Legality of same-sex sexual actsEdit

Section 365 and 365AEdit

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 2019 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';[3] 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.[45][3] An attempt by the government to include its repeal into the human rights action plan was prevented by opposition from the United People's Freedom Alliance.

Supreme CourtEdit

The Supreme Court of Sri Lanka has recognized that "the contemporary thinking, that consensual sex between people of the same sex should not be policed by the state nor should it be grounds for criminalisation".[46]

GovernmentEdit

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".[47]

Section 399Edit

This section criminalized gender impersonation and is often used against transgender 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 OrdinanceEdit

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]

Recognition of same-sex telationshipsEdit

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

Discrimination protectionsEdit

Constitutional ProtectionsEdit

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.[48] 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[49]

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.[50]

LawEdit

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.[51][52] 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".[47]

Gender Identity and expressionEdit

A person 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.[53]

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.[54]

Gender dysphoria is still classified as a mental health problem.[55]

Third GenderEdit

The concept of third gender is not recognized under Sri Lankan law.[56]

Blood DonationEdit

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 National Blood Transfusion Services (NBTS).[57]

Summary tableEdit

Legality of same-sex sexual activity Article 365A criminalizes "carnal intercourse against the order of nature" which included Homosexuals during the British era but is now unenforced and dormant as per Supreme Court judgement, with certain sources describing the situation as decriminalized due to the Government claiming the law does not apply to Homosexuals
Anti-discrimination laws  
Stepchild adoption by same-sex couples  
Joint adoption by same-sex couples  
LGBT people allowed to serve openly in the military  
The right to change legal gender  
Recognition of third gender  
Access to IVF for lesbians  
Commercial surrogacy for gay male couples  
MSMs allowed to donate blood  [57]

See alsoEdit

ReferencesEdit

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  2. ^ "SL should take guidance from Indian counterparts". www.dailymirror.lk. Retrieved 23 January 2019.
  3. ^ a b c d "Road to reform- LGBTIQ rights in Sri Lanka". www.themorning.lk. 16 September 2018. Retrieved 23 January 2019.
  4. ^ "Department for Justice" (PDF).
  5. ^ "LGBT community yearns for acceptance by society". Sunday Observer. 23 June 2018. Retrieved 9 September 2018.
  6. ^ ""All Five Fingers Are Not the Same" | Discrimination on Grounds of Gender Identity and Sexual Orientation in Sri Lanka". Human Rights Watch. 15 August 2016. Retrieved 9 September 2018.
  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 5 October 2018.
  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 26 January 2019.
  12. ^ "Repeal Colonial Era Laws that Entrench Discrimination and Perpetuate Violence". 22 January 2017.
  13. ^ "University of Minnesota Human Rights Library". hrlibrary.umn.edu. Retrieved 26 January 2019.
  14. ^ Cooray, LJM (1974). "The reception of Roman-Dutch law in Sri Lanka". The Comparative and International Law Journal of Southern Africa. 7 (3): 295–320. ISSN 0010-4051. JSTOR 23242905.
  15. ^ "Removing barriers for LGBT + people in Sri Lanka". www.dailymirror.lk. Retrieved 26 January 2019.
  16. ^ "Sri Lanka LGBTI Resources | Rights in Exile Programme". www.refugeelegalaidinformation.org. Retrieved 26 January 2019.
  17. ^ "PressReader.com - Connecting People Through News". www.pressreader.com. Retrieved 26 January 2019.
  18. ^ Refugees, United Nations High Commissioner for. "Refworld | Sri Lanka: Treatment of sexual minorities, including legislation, state protection, and support services". Refworld. Retrieved 26 January 2019.
  19. ^ Avenue, Human Rights Watch | 350 Fifth; York, 34th Floor | New; t 1.212.290.4700, NY 10118-3299 USA | (12 September 2018). "Sri Lanka Should Take Up the Challenge on LGBT Rights". Human Rights Watch. Retrieved 27 January 2019.
  20. ^ brian (20 October 2014). "Sri Lanka Government Says LGBT Rights Are Constitutionally Protected". Leading Global LGBTIQ Human Rights Organization. Retrieved 27 January 2019.
  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
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  25. ^ www.i-probono.com https://www.i-probono.com/index.php?/news-more. Retrieved 27 January 2019. 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 27 January 2019.
  29. ^ October 3rd; Sikk, 2016|Allan; current-affairs; Politics, E. U.; featured; Comments, Raimondas Ibenskas|0 (3 October 2016). "Mergers and splits: How party systems have changed in Central and Eastern Europe since 1990". EUROPP. Retrieved 27 January 2019.
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  31. ^ "Sri Lanka officially refuses to go gay". roar.media. Retrieved 27 January 2019.
  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 27 January 2019.
  35. ^ "Standing Up For The Gay Politician: Mangala Samaraweera On Right Track?". Colombo Telegraph. 8 May 2017. Retrieved 27 January 2019.
  36. ^ "Maha Sanga Protests Appointment Of First Transgender Governor". Colombo Telegraph. 26 March 2016. Retrieved 27 January 2019.
  37. ^ http://www.health.gov.lk/enWeb/HMP2016-2025/Curative%20%20Services%20%20-.pdf
  38. ^ admin (1 June 2018). "Police admit isolated incidents reported targeting LGBT persons". Colombo Gazette. Retrieved 27 January 2019.
  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 30 September 2018.
  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 5 February 2011.
  44. ^ Sri Lanka promises to decriminalize homosexuality and to protect LGBTI people
  45. ^ "The battle against homophobia in Sri Lanka". Sunday Observer. 22 September 2018. Retrieved 7 October 2018.
  46. ^ http://www.supremecourt.lk/images/documents/sc_appeal_32_11.pdf
  47. ^ a b "iProbono Home". i-probono.com. Retrieved 23 January 2019.
  48. ^ brian (20 October 2014). "Sri Lanka Government Says LGBT Rights Are Constitutionally Protected". OutRight. Retrieved 31 August 2017.
  49. ^ "EQUAL GROUND - Sri Lanka commits to human rights protections for LGBTIQ people before the UN". equal-ground.org. Retrieved 25 January 2019.
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  52. ^ Sal, Adam; Ra 1/19/2017. "Sri Lanka Keeps Homosexuality A Crime, But Bans Anti-LGBT Discrimination | NewNowNext". www.newnownext.com. Retrieved 26 January 2019.
  53. ^ Jayasinha, Anukshi (5 October 2016). "What It Means To Be Transgender In Sri Lanka". Roar Reports. Retrieved 31 August 2017.
  54. ^ "Who am I?". Retrieved 31 August 2017.
  55. ^ 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. 3: 45. doi:10.4038/joshhm.v3i0.63.
  56. ^ http://joshhm.sljol.info/articles/10.4038/joshhm.v3i0.63/galley/55/download/
  57. ^ a b "Donate Blood". www.nbts.health.gov.lk. Retrieved 21 January 2019.

External linksEdit