As in many Southasian countries, sexual minorities in Sri Lanka grapple with a harsh and discriminatory law that proscribes “gross indecency”, a term that is never actually defined. Up until 1995, this legislation applied to men only, but a movement to raise awareness on the need to reform the law led to it being made gender neutral. Now, women too come under the ambit of the law, and for the past 13 years, consensual sex between two women in private has been criminalised.
This type of discriminatory law was introduced in all the British colonies – save Hong Kong – and continued to remain in the statute books long after colonial rule ended. In Sri Lanka, this act has been in effect since 1883, having now enjoyed a life of 125 years. The original inspiration for this type of legislation, however, has long since dissipated. In 1967, England passed the Sexual Offences Act, which decriminalised consensual, private homosexual acts between people over the age of 21. In 2004, the United Kingdom even announced the passage of the Civil Partnership Act, and the first same-sex couple there was registered in November 2005. Though same-sex partners in the UK cannot opt to have their registration ceremony in places reserved for religious rituals, those registered under this act can now enjoy rights similar to those of heterosexual married couples. Beginning with inheritance tax, social security and pension benefits, a same-sex partner in the UK is now also able to enjoy full parental responsibility of their current partner’s children, as well as responsibility for reasonable maintenance of one’s partner and their children. A partner is entitled to full tenancy rights, life-insurance recognition, and will be recognised as next of kin in hospitals. There is even provision for the dissolving of such a union through a process similar to divorce.
Why is it that Sri Lanka, along with much of the rest of Southasia, is still forced to conform to a law bestowed by England, when the English themselves have done away with the very same law, one that legitimises violence against members of sexual minorities? A local Sri Lankan group, named Companions on a Journey, has claimed that when it was first set up in 1995, its members were subject to ridicule, with some even being stoned and many receiving death threats.
In addition to being subject to sexual violence, the general stigma associated with being lesbian and gay in Sri Lanka often leads members of sexual minorities to emotional and mental trauma. Back in July 1999, the Women’s Support Group, an organisation that works in the field of queer rights, announced its intention of holding a conference for lesbians, and was soon met with fierce public opposition. One of these protests came in the form of a letter to the editor of a local newspaper, which went so far as to advocate the rape of women attending the conference by a team of convicted rapists. The filing of a complaint against the newspaper instead led to the Press Council of Sri Lanka condemning lesbianism as “sadistic and salacious”. Attitudes towards sexual minorities have not changed much since then.
Despite suffering from threats of violence, Companions on a Journey currently boasts more than 2000 members, with more than 15 members visiting their drop-in centre every day. The Women’s Support Group likewise has a significant member base. But neither of these groups can openly disclose their location, for fear of harm. The contributions from these groups in terms of awareness-raising on issues of sexuality, sexual health and HIV/AIDS has nonetheless been immense, considering that they were begun with the aim of providing only peer support. Though these two organisations have been successful in making tremendous progress in developing a supportive community, and in advocating for the rights of those with alternative sexualities, their progress in winning legal recognition has been negligible.
Aside from the aforementioned elements of the Sri Lanka Penal Code, a particularly vague regulation called the Vagrants Ordinance continues to remain in the law books. This gives authorities the power to detain people who are considered ‘idle’ in public, including when it is determined that such a ‘vagrant’ could solicit someone in the area for sexual intercourse. Such legal vagaries have led the police many times to misinterpret the intentions of bystanders, and they have wrongly detained countless people. And, of course, in most of these cases it is those of lower socio-economic status who prove most vulnerable to such detention. In order to win their freedom, such detainees are often forced to resort to bribes for offences not committed.
The attitude of government officials hardly helps matters. In August 2007, the Sri Lankan government hosted the eighth International Conference on AIDS in the Asia-Pacific (ICAAP). With many sessions focusing on sexuality and rights, it was heartening that Colombo officials seemed positive about working with sexual minorities. At the end of the conference, ICAAP Rapporteur-General Jeff O’Malley made a comment about the unavailability of condoms at the conference venue for participants who have wished to have sex. But then Minister of Health Nimal Siripala de Silva made a quick rebuttal that shocked most of those gathered at the conference. “I don’t want people to think I brought all of these people here to promote lesbianism and homosexuality,” de Silva said. “There are many nice women and handsome men in Sri Lanka. People in Southeast [sic] Asia practice good sexual behaviour with single partners. When the Western world was living in the jungles, we were leading a civilised life.”
Whether the minister was being clueless, homophobic or judgemental, it was hard to imagine that he was holding the highest portfolio in the country for work on health-related issues. His clear message was for the continuation of the stigmatisation of sexual minorities and of those living with HIV/AIDS. Perhaps it was expressed attitudes such as this from people in high positions that contributed to the subsequent mistreatment of a Nigerian participant at the ICAAP conference. This individual, Jude Munaonye, later said that he was refused treatment at multiple hospitals, and that the officials would not even look him in the eye as they carted him from location to location. Munaonye said that the common view towards HIV in Sri Lanka seemed even worse than in many countries in Africa. All the while, Sri Lanka is commonly referred to as a low-prevalence country with regards to HIV/AIDS, but the worry now is that this stigmatisation, which seems to be far more widespread than had previously been thought, could lead many to conceal the possibility that they are infected.
Meanwhile, studies on sexuality in Sri Lanka are currently in their infancy, due mostly to fears of hostility. Thus, heterosexuality remains widely perceived as the norm, a state of affairs that looks set to remain in place for many years to come. An advice columnist in a national newspaper (who happens to be a psychologist) recently wrote that homosexuality is the most common sexual “disturbance” in the country. He went on to state authoritatively that male homosexuality stands at around six percent in Sri Lanka, while lesbians make up around two percent of the country’s population. The article also made such sweeping statements as, “Often transvestite practices lead to masturbation or sexual intercourse.” One way or another, the article placed homosexuality and transvestism on the same level as voyeurism, exhibitionism, fetishism and paedophilia. Naturally, in such a context, homosexuality can easily be referred to as a disorder, and the course of ‘treatment’ recommended can only be some form of behavioural-modification therapy.
Against this backdrop, human-rights activists in Sri Lanka have found it next to impossible to advocate for real change. Despite the adoption of the groundbreaking Yogyakarta Principles of 2006, which established the basic standards for how governments should treat people whose sexuality-related rights are often denied, it remains doubtful as to whether a government such as the one in Colombo will actually comply with these international standards. Following her visit to Sri Lanka in mid-January, High Commissioner for Human Rights Louise Arbour pointed out that several broader human-rights issues on the island are often eclipsed by issues related to the ongoing ethnic conflict. She placed particular emphasis on issues of discrimination and exclusion, gender inequalities, and the low participation of women in public and political life. Arbour concluded that these challenges will remain after any peace settlement, and that they deserve greater and more focused attention.
As things currently stand, the Sri Lankan state has not prioritised effective human-rights protection to sexual minorities as one among its foremost responsibilities. Despite the recommendations of United Nations experts, and efforts made to integrate consideration of human-rights violations based on sexual orientation and gender identity into their relevant mandates, unless there is political will on the part of the government, these efforts will remain on paper alone.
~ Marini Fernando is a Sri Lankan lawyer who has worked with issues of LGBT rights.