Freedom of expression and fundamental rights

LGBTIQA+ discrimination runs deeper than archaic laws

Bhavna Mohan

“They took me behind their barracks. One by one, two of them had sex with me. Then they let me go…They say we keep coming back to do sex work because we can’t get enough sex. They want us to have their penis because they say we can’t get enough penis.”

– An MSM sex worker in Sri Lanka, speaking about mistreatment by the Police (Human Rights Watch, 2016 report)

It may be difficult for many to understand variations in sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) because the binary genders (male, female), and in turn the heterosexual relationship, are the most widely accepted, and people’s gender identity aligns with their biological sex (gender assigned at birth based on genitalia) more often than not.

However, ignorance and apathy do not afford one the liberty to stifle another’s rights.

Reports of several instances of LGBTIQA+ discrimination, including in the form of sexual, physical, and mental abuse, make headlines (not frontpages) quite often.

It was not too long ago that homophobic comments were made by parliamentary election candidate Kavinda Jayawardena; some time ago, in 2000, then Justice Minister Wijeyadasa Rajapakshe, as the head of a quasi-legal Press Council, made a bogus ruling on a letter published in The Island, of P. Alles, who had written in about how “it was appropriate for the Police to get convicted rapists to give zest and relish to misguided wretches (lesbians) to understand the reality of natural sexual pleasure than unnatural sexual activities”.

Shockingly, in spite of the abysmal nature of these reports, these issues are only briefly brought to the fore.

A standard cycle follows such news: Local activists voice their concerns, and advocate to repeal/amend Sections 365 and 365A (both amended and expanded in 1995) of the Penal Code, which cover “carnal intercourse against the order of nature” and “gross indecency”, respectively. Penal Code Section 399 outlines “cheating by personation”, the Brothels Ordinance (No. 5 of 1889) covers “management of a brothel”, and the Vagrants Ordinance (No. 4 of 18421947) prohibits soliciting or committing acts of “gross indecency” or being “incorrigible rogues” procuring “illicit or unnatural intercourse”.

And in tandem, international humans rights organisations condemn such actions and urge the Government to adhere to the ICCPR, ICESCR, and CEDAW (conventions ratified by Sri Lanka). Meanwhile, politicians and leaders of the country remain silent, sans some rare instances which create little to no impact.

Added to the mounting frustration is that Sri Lanka’s legislation does not explicitly criminalise transgender or intersex persons, or even same-sex relations between consenting adults. Rather, the law is misinterpreted, due to lack of clarity on terms such as “against the law of nature” and “gross indecency”, by the Police (and reflectively, society).

For example, legally speaking, Section 399 (“cheating by personation”) outlines certain prerequisites to make an arrest: cheating, personation, “damage or harm or likely damage or harm” to the person who was cheated in terms of “body, mind, reputation, or property, or damage or loss to the Government”, and thereby a complaint being made to the Police. However, transgender people are arbitrarily arrested under this section.

Meanwhile, the Brothels Ordinance, which covers the “management of a brothel”, is also cited when arresting transgender sex workers. It states that if “the lessor or landlord of any premises, or the agent of such lessor or landlord, lets the same…to be used as a brothel”, they shall be guilty of an offence. This Ordinance does not criminalise sex workers operating independently.

Furthermore, in the past 72 years, no case has been tried under Sections 365 and 365A of the Penal Code of Sri Lanka.

Nevertheless, police officers continue to make arrests citing above legislation.

Most of these arrestees face grave sexual and physical abuse at the hands of the Police. A most recent revelation, made in October, was that local authorities had subjected at least seven people to forced physical examinations, including anal and vaginal exams, since 2017, in an attempt to provide proof of homosexual conduct.

These exams and tests lack any scientific basis and violate medical ethics, and were denounced by the WHO as a form of violence and torture.

These facts are disturbing, to say the least, and point to roots that run much deeper than outdated colonial laws. Whilst it is undeniable that these archaic laws need to be repealed/amended, solely doing so will not ensure the protection of the rights of LGBTIQA+ persons.

In fact, access to one of the most basic necessities – healthcare – is a major obstacle for them. Sri Lanka’s medical fraternity is not educated on the scientific, biological, and mental health aspects of LGBTIQA+ persons, and most public hospitals refuse to treat transgender peoples. They also suffer humiliation and inquisitiveness at the hands of health workers, who sometimes put their bodies on display for others.

Compounding the issue is the lack of knowledge in conducting the sex reassignment procedure, which leads to a number of surgeries being done incorrectly; one doctor in the HRW 2016 report said, “In Sri Lanka, doctors are willing to perform the final surgery, but they’re learning through you. We haven’t learned about these things,” conceded another doctor.

Unfortunately, this attitude is seen in workplaces too. Trans people gendersare driven out when their gender identity is revealed and are also unable to secure jobs. Due to this, most of them resort to sex work in order to survive.

Additionally, parents of LGBTIQA+ persons subject their children to aversion and conversion therapy and “corrective” rape so as to “cure” homosexuality – these so-called “treatments” do more damage than good. In fact, gay men and lesbians in Asian countries have been reported to have higher suicidal ideation compared to heterosexuals.

Whilst transgenderism and homosexuality were considered disorders in the past, categorised accordingly in the International Classification of Diseases (ICD) by the WHO, transgenderism was moved from the chapter on gender identity disorders to the chapter on sexual health last May (2019), while homosexuality was completely taken out of the ICD in 1990.

Notwithstanding, parents still teach their children that falling in love with someone of the same sex is unnatural, that wanting to be a boy instead of a girl or vice versa is going against God’s intentions, that being queer is against our culture – but, the fact of the matter is, these opinions are unjustified.

Shamelessly, irrationally, and without consequence, society as a whole violates Article 12(2) of the Constitution of Sri Lanka, which states that “no citizen shall be discriminated against”.

It is time we take responsibility, bring about change, and stop falling victim to decades of indoctrination in the guise of religion, culture, and tradition which precludes our ability to think independently.

The views and opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the Sri Lanka Press Institute.

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