LGBT rights in Sri Lanka

Sri Lanka did not have any legal restrictions for the general population against homosexuality until the colonial period.^[15] It had no legal influence from Zoroastrianism, Islam or Christianity,^[16] and most religious influence prior to colonialism came from Mainland India and East Asia.^[17]

The current legal framework of Sri Lanka,^[18] mostly derives from European-Christian constructs^[19] as they stood during the colonial era, and were imported into the island.^[20] It is predominantly British law^[21] with some earlier colonial Roman-Dutch law.^[22] The most prominent of the discriminatory laws^[23] is the now seemingly dormant (sometimes reported as "decriminalized")^[8] Section 365, that criminalizes homosexual sex.^[24] 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^[25] nor the recognition of transgender and third gender concepts^[26] (who have been discriminated against through the Vargrants Ordinance).^[27] The Supreme Court and the various governments of Sri Lanka have countered this situation^[2] by including sexual minorities within generic anti-discrimination clauses^[28] and attempting to set dormant a variety of laws, although the colonial legal code does not provide the Supreme Court with the power to create or repeal law.^[6][29]

It is unclear whether there have been any prosecutions of LGBTQI for consensual sex (as opposed to non-consensual sex), and NGOs state that there have been no prosecutions for consensual sex. In 2015, the Supreme Court of Sri Lanka suspended (therby overturning on appeal) a rare 2003 custodial sentence of a lower court, stating that the finding of guilt was correct due to the law remaining on the books, but that it would be inappropiate to impose a penality on consensual sex. Human rights organizations and asylum seeker organizations have reported that police and government workers used the threat of arrest to assault, harass, and sexually and monetarily extort LGBTQI individuals.^[30][31][32] However, several sources, including that by the IGLA president and Sri Lankan native Sherman de Rose, state that the laws are not used to jail and prosecute LGBTQ individuals. ^[33]

Dharmic moral codes

Sri Lankan Buddhism generally tolerated homosexual sex more than heterosexual sex, though preferred celibacy to even procreation unlike in western philosophical traditions.^[34] The Pali Canon explicty mentions that sexual practices are generally forbidden in the monastic code (for monks), but sex of a homosexual nature would receive a lesser punishment to the point that certain types of homosexual sex would only require a confession and no punishment. This code was written on the island of Lanka in 29 B.C. and only limited to monks but not the general population.^{[35][15][36][37][38]} The ancient Chinese translations of the Āgama also does not challenge this. The lay man is only asked to avoid sex with certain classes of people (underage, married, monks etc...).^[39][40][41] This is further supported by the obmission of homosexuality in the list of sexual misconducts compiled in the 14th century Upāsakajanalankara, which was written in Sri Lanka in the 14th century and became influential again in the 17th century Kandyan kingdom.^[42][43][44]

Politicians from both sides of the political spectrum have expressed support for homosexuality and transsexuality, including the two leaders of the two major parties.^[11][10]

Sri Lankan society generally has a tolerant view of homosexuality. There are even some traditions that promote transgender people, although the third gender seems to have disappeared from the island, despite having roots in Sri Lankan culture. As a result, these laws have been loosely enforced (if at all), and discrimination by police and others is often associated with corruption or attitudes towards sexual promiscuity, which also applies to heterosexuals. Some issues, including the status of sexual minorities within the military service, and intersex rights,^[45] have largely escaped both mainstream discussion and discussion by LGBT lobbies. Other laws and legalities that can negatively affect sexual minorities are more widely discussed in the Sexual minorities in Sri Lanka article.

In 1994, Sherman de Rose set up Companions on a Journey (CoJ), the first LGBT support group in Sri Lanka.^[46] The Women's Support Group split off from CoJ in 1999, forming a separate organisation for lesbian, bisexual and transgender women.^[47] Equal Ground was then set up as an LGBTQI group.^[48]

The influential Buddhist chapter, Asgiriya Chapter, came out in support of extending rights to LGBT, including support to amend the constitution.^[49]

In March 2021, in order to commemorate Zero Discrimination Day, the President of Sri Lanka Gotabaya Rajapaksa tweeted "As the president of #lka I am determined to secure everybody's right to live life with dignity regardless of age, gender, sexuality, race, physical appearance, and beliefs."^[11] The Financial Times opinioned that this was the first public acknowledgement by the South Asian Head of State about everyone's right not to be discriminated on their sexuality or gender.^[50]

In August 2021, after a video of a homophobic counsellor caused controversy on the internet, the College of Psychiatrists clarified that modern medicine does not consider homosexuality to be an illness and further called for homosexuality to be decriminalized; unlike psychiatrists, counsellors are not regulated and do not require degrees.^[51]

Article 365 of the Sri Lankan Penal Code, which dates back to 1885^[1]: 34 (while it was British Ceylon), criminalizes sexual acts deemed "against the order of nature".^[8] For much of the law's history, the prohibition applied to only to males; in 1995, Article 365 was amended to replace the word "males" with "persons" so that same-sex sexual activity between consenting adult females was also outlawed in addition to that between consenting adult males. This has been ruled unenforcable by the Supreme Court, but the court does not have the power to remove laws outright.^[9]

Ordinance to Provide a General Penal Code for Ceylon 1883

Sections 365 and 365A of the Penal Code refer to unnatural offences and acts of gross indecency.^[18][52] In 1995, the section was amended slightly to expressly prohibit "gross indecency" no matter the gender of the participants.^[53]

Section 365

Section 365 (Penal Code 1883) states:^[54]

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be punished with fine and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.

Section 365A

Section 365A (Penal Code 1883) states:^[54]

Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be guilty of an offence, and shall be punished with imprisonment of either the description for a term which may extend to two years or with fine or with both and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.

Section 399

This section is often used against transgender people for purported "gender impersonation". It has been used in situations where a person has converted to another gender yet bears a different gender on their documentation. The section provides: "a person is said to 'cheat by personation' if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is."

Supreme Court

In a decision of Supreme Court of Sri Lanka, Luwihare, PC. J wrote in his opinion:^[32] "This offence deals with the offences of sodomy and buggery which were a part of the law in England and is based on public morality. The Sexual Offence Act repealed the sexual offences of gross indecency and buggery in 2004 and [is] not an offence in England now." Further, the opinion recognised that:^[32]

The contemporary thinking, that consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation appears to have developed over the years and may be the rationale that led to repealing of the offence of gross indecency and buggery in England. [Emphasis in original.]

— Luwihare, PC. J, SC Appeal No.32/11 (2016), Supreme Court of Sri Lanka

The Constitution of Sri Lanka prohibits the Supreme Court from striking down Article 365A because the Constitution does not provide the Supreme Court with the power of judicial review. The second republican constitution was amended to state "all bills passed in parliament shall become law after it receives the Speaker's Certificate (79), it will be final and cannot be questioned in any court of law (80.3)".

All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.

— Article 16 (1) of the constitution:

In 2017, the Supreme Court had opinionated that it would be inappropriate to impose custodial sentences on people who were accused of engaging in homosexual sex.^[55]

Government

Both the socialist government of Rajapakse 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".^[6]

In November 2017, Deputy Solicitor General Nerin Pulle stated that the government would move to decriminalize same-sex sexual activity.^[56] The country's constitution does not provide the Supreme Court the powers to completely expel a law from the books.^[57][8] 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.

1841 Vagrants Ordinance

This act criminalizes soliciting and acts of indecency in public places. Section 7 is being used against sex workers and sexual minorities. A maximum term of six months and a fine of 100 rupees is imposed as punishment.^[23]

Repeal of Article 365

Premnath C. Dolawatte of the ruling nationalist Sri Lanka Podujana Peramuna political party submitted a Private Member Bill to Parliament on 23 August 2022 aiming to repeal the colonial-era law banning homosexual sex.

President of Sri Lanka Ranil Wickremesinghe said "we are for it" and his government would not oppose the private members bill, but that "you have to get the support of individual members [for the bill to pass in parliament]. It’s a matter of their private conscience."^[58]

In May 2023, the Supreme Court greenlit the bill.^[59]

Sri Lankan family law does not recognize same-sex marriages, same-sex civil unions, or provide equal rights to same-sex live-in couples.

Marriage was not legally recognized in pre-colonial Sri Lanka, when the predominant form of kinship was what is now called as "living together" or cohabiting live-in couples. As in India, the aim of the colonial laws were to codify marriage arrangements for the purpose of administrating divorce proceedings.^[60]

Constitutional protections

The government of Sri Lanka claimed to the United Nations Human Rights Committee on 7–8 October 2014 that they think sexual minorities should be protected under existing generic anti-discrimination laws provided in the Constitution.^[25] The government of Sri Lanka stated that such protections were "'implicit' in the Sri Lankan constitution and that the government has not written a law giving 'explicit' rights yet".^[61]

Discrimination against sexual minorities remains a problem. Several lawyers and charities have called for specific wording in the constitution stating that discrimination against sexual minorities is illegal.^[23]

Law

While there is interest in creating non-discrimination laws and there have been at least two legal judgements^[25][32] favourable towards protections, none have been created or passed.^{[13][62][63][25]}

In 2017, the Government announced they would update their Human Rights Action Plan with an addendum that bans discrimination against anyone based on his or her sexual orientation. However, no laws were put in place following this statement.^[64]

Both the Nationalist 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".^[6] The Sri Lankan Supreme Court handed down a judgement in the case of Officer-in-Charge, Police Station, Maradana v Wimalasiri and Jeganathan, in which sections 365 and 365A were deemed unenforceable under the constitution.^[32] Despite this judgement and the government statements, the only parliamentary effort to repeal the laws criminalizing homosexual acts was not passed. As of 2022^[update], no further attempts to repeal the laws have been put before Cabinet or introduced in the legislature.^[65]

Legal action challenging prejudicial police training

In November 2021, Equal Ground (a long-established LGBTQI rights advocacy organisation), with others, filed a petition at the Court of Appeal seeking a Writ of Prohibition against the training programme for the police where "malicious, erroneous, and discriminatory remarks" were made about LGBTIQ persons. The Court of Appeal decided on 8 December 2021, that this petition could proceed.^[66][67]

Recognition of gender identity

Transgender persons may change legal gender. This has been allowed since 2016, following advice from the Human Rights Commission of Sri Lanka.^[68] The commission's advice elicited a directive to agencies from the Ministry of Health.^[69][70] The legal change requires bureaucratic certification which may be onerous to achieve; while typically requiring medical intervention and vetting before being permitted, the international legal charity, iProbono point out there is no legal requirement in Sri Lanka for any surgical intervention. This has been confirmed in a legal ruling.^[6]: 120

According to a United Nations Development Programme (UNDP) report:^[71]

In Sri Lanka, the Human Rights Commission of Sri Lanka (HRCSL) facilitated dialogue on legal gender recognition in response to a March 2015 complaint from a transgender person. As a result, in 2016 the Ministry of Health issued a circular to health services and education institutions about issuing gender recognition certificates to transgender people. The Registrar-General instructed all registrars to change sex and name details on birth certificates based on such gender recognition certificates. The process remains a medicalized one, but with some degree of flexibility.

Although performed on occasion, gender-confirming surgery is relatively inaccessible within Sri Lanka, as many hospitals lack the highly specialised surgical units and staff. Human Rights Watch (HRW), in its "All Five Fingers are Not the Same" report (2016), interviewed doctors and patients. One physician who treats transgender individuals told HRW that Sri Lankan doctors were often unfamiliar with surgical treatments of transgender patients. Patients who had experienced gender-confirming treatments in Sri Lanka, reported that they could be met with ignorance, curiosity and even ridicule from medical staff. Some avoided public hospitals and clinics due such experiences, thus increasing the costs of treatments. Obtaining hormone therapy is similarly fraught. Such obstacles in the path of gender-confirmation increases the difficulty of obtaining any legal gender recognition. Besides providing a legal procedure for gender recognition, there is no other government recognition or assistance for transgender people.^[5]

Classification as mental illness

Gender dysphoria is classified as a mental health disorder or illness.^[13] Sexual and romantic orientations are not classified as mental illness by either the Sri Lanka College of Psychiatrists, or the College of Community Physicians.^[72] Despite this, and that all medical practitioners in Sri Lanka are members professional colleges, and all Sri Lankan colleges are signatories to the WHO code of ethics—which deprecates any treatment of homosexuality as a disease or illness, on scientific and ethical grounds—doctors are often sought out by families to administer "treatment" to their LGBTQI members. There are sufficient doctors willing to perform such treatments that it is reported as a regular occurrence.^[73][74]

Third gender

The concept of third gender is not recognized under Sri Lankan law.^[13]

The National Blood Transfusion Service (NBTS) bans people who engage in risky behaviour from donating blood. It classifies male same-sex intercourse as a risky behavior, along with unrelated behaviours such as drug use and having more than one sexual partner. Consequently, men who engage in anal sex with men are banned from donating blood through the NBTS.^[75]

• Human rights in Sri Lanka
• LGBT rights in Asia
• Homosexuality in Sri Lanka
• Sexual minorities in Sri Lanka
• Tamil sexual minorities

• Sri Lankan Gay Community forum
• Equal Ground
• RESPONSES TO INFORMATION REQUESTS (RIRs) in 2008
• "Case studies and publications: Knowledge Archive". iProbono: a non-profit civil society organisation in the legal field.