Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Criminalises the gender identity/expression of trans people
Commonwealth member state
Penal Code 1883, Section 365 Unnatural Offences

Section 365 criminalises “carnal intercourse against the order of nature”, with a penalty of up to ten years imprisonment and a fine. It is only applicable to intercourse between men.1

Penal Code 1883, Section 365A Acts of gross indecency between persons

Section 365A prohibits acts of “gross indecency”, or the procurement or attempted procurement thereof, with a penalty of up to two years imprisonment and/or a fine. This provision is applicable to acts between men and between women.2

Penal Code 1883, Section 399 Cheating by personation

Section 399 of the Penal Code criminalises cheating “by pretending to be some other person”, with a penalty of up to three years imprisonment and a possible fine. This provision can be used to target transgender persons.3

Enforcement

2017

Human rights organisations reported that the police used the provisions that criminalise same-sex conduct to assault, harass and sexually and monetarily extort LGBT individuals.

2016

The US Department of State Human Rights Report on Sri Lanka noted that police used the Vagrancy Ordinance to detain transgender individuals on the suspicion that they were engaging in prostitution. However, criminal prosecutions under the criminalising legislation were rare.

2014

The US Department of State Human Rights Report found that Sri Lanka’s laws criminalising LGBT people were rarely enforced.

A shadow report by Sri Lankan LGBT organisation, Equal Ground, submitted before the United Nations Human Rights Committee, suggested that while there have been no convictions in Sri Lanka since it gained independence in 1948, the police harassed and extorted money or sexual favours from LGBT individuals with impunity and assaulted gay men and lesbians in Colombo and other areas.

Statements by Public Figures

2018

In November, Maithripala Sirisena, President of Sri Lanka, attacked the Prime Minister, Ranil Wickremesinghe, in a speech which used the phrase “samanala rela,” – described by Equal Ground as a “derogatory term alluding to minority sexual orientations.”

2017

In November, Sri Lanka’s Deputy Solicitor General, Nerin Pulle, pledged to change the Penal Code in Sri Lanka after the country’s UPR review, stating: “The government is committed to ensuring that no provision in the law would be applied to persons of the LGBTIQ community in a discriminatory manner.”

The government is committed to ensuring that no provision in the law would be applied to persons of the LGBTIQ community in a discriminatory manner.

Nerin Pulle, Deputy Solicitor General

In January, then Justice Minister Wijeyadasa Rajapakshe, when speaking in regard to conditions of the EU’s GSP+ concession, stated: “We were also asked to legalise homosexuality in the country. The Europeans asked us to include it in the closes of the fundamental constitution. We clearly told them although they have a culture of indecency Sri Lankans are not people of such mental illness.” Prominent trans rights activist, Dr Chamindra Weerawardhana remarked that “this comment is proof that we have a Justice Minister who is so small-minded that he withholds justice to his own fellow citizens on the grounds of sexual orientation and gender identity.”

We were also asked to legalise homosexuality in the country. The Europeans asked us to include it in the closes of the fundamental constitution. We clearly told them although they have a culture of indecency Sri Lankans are not people of such mental illness.

Wijeyadasa Rajapakshe, Former Justice Minister

2016

In January, the Colombo Telegraph reported that Galagoda Aththe Gnanasara, Secretary General of Bodu Bala Sena, a Sinhalese Buddhist nationalist organisation reproached the Sri Lankan government stating: “Today the country is governed by a group of homosexuals. This is a very serious concern… I can recall the entire list…”

2015

In December, Lawmaker Nalinda Jayatissa, in an interview with the Daily News, stated: “I am totally against Lesbian, Gay, Bisexual and Transsexual (LGBT) rights. This is not the need of the human being. We need a future generation. Scientific experiments reveal this kind of emotions come out due to stress. When people go through stressful periods or are in such environments, unnatural feelings come out. For example, we do not see this behaviour when they are living in the wild. However, if they are caged, we could see this behaviour. I believe in marriage between a man and woman. Same sex marriage is unnatural. It is against the evolution of the human being.”

In June, Wimal Weerawansa from the National Freedom Front, asked for then Foreign Minister Mangala Samaraweera’s arrest after he had voted against a Russian resolution to withdraw spousal benefits to gay and lesbian UN employees. Weerawansa reportedly stated that: “Being gay and lesbian-friendly has become our foreign policy today. This will result in negative consequences in the long run for Sri Lanka… It will affect our culture. Therefore, the Minister should be arrested for violating the Penal Code.”

It was further reported that Deputy Foreign Affairs Minister Ajith Perera “categorically denied that Sri Lanka had voted to promote gay rights and said the circular was an administrative matter”. On the same issue, another opposition leader, Udaya Gammanpila, General Secretary of the Pivithuru Hela Urumaya party, said equality did not mean all groups should be recognised as equals.

2014

Following a review of Sri Lanka’s record on civil and political rights by the United Nations Human Rights Committee in October in Geneva, Additional Solicitor General Bimba Jayasinghe Thilakeratne stated: “Article 12.1 [of the Constitution] ensures equality for sexual orientation and gender identity” and that under Article 12.2 “laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional”. However, she specified, “Sections 365 and 365A [of Sri Lanka’s Penal Code] do not target any particular group but are there to protect public morality.”

In April, then Minister for Economic Affairs, Basil Rajapaksa, reported to the press that the government had turned down the option of British aid which had been offered on the condition that Sri Lanka move to legalise gay marriage.

In January, former Foreign Minister and then opposition politician, Mangala Samaraweera, accused the government of trying to discredit his reputation with accusations surrounding his sexuality. A leaked WikiLeaks cable reportedly revealed the MP’s sexuality. He subsequently accused a man of stealing from his house, who later claimed to have been having sex with him: “My private life, though private has never been a secret…. However, today the Rajapaksa regime, in preparation for provincial elections to be followed by Presidential elections seems to be hell bent on destroying me using the confused hallucinations of a misguided youth.”

2011

An editorial in Sri Lanka’s Sunday Observer accused some LGBT NGOs of promoting homosexuality in Sri Lanka: “pretending that they are engaged in HIV/AIDS prevention.” The editorial also stated that “it is pathetic to see that most of them are busy fighting for their ‘rights’ and promoting their sexual preference. First of all it is right to safety and health they should fight for.”

Persecution and Discrimination

2017

Equal Ground, in its shadow report to the CEDAW Committee, described numerous cases of abuse:

  • Arbitrary arrests and detentions and abuse and violent police behaviour: The report noted that Sri Lanka’s Vagrancy Order of 1842 is often used to harass, arrest and detain individuals on the basis of their appearance using the example of “masculine looking” women who are perceived to be lesbians. It also reported that police harass and extorted money and sexual favours from LGBTI individuals and assaulted lesbian women in Colombo and in other areas across Sri Lanka.
  • Violence against lesbians and bisexual women: The report noted that women who experience abuse from their partners in same-sex relationships couldn’t rely upon the Prevention of Domestic Violence Act, No.34 of 2005; where a woman does report these violations, they are exposed to harassment at the point of reporting.
  • Forced marriage: The report states that: Sri Lankan law does not protect LGBT individuals from being forced into heterosexual marriages, and lesbian and bisexual women are often coerced into marriage, and threatened with violence or removal of their property if they refuse.
  • Discrimination in employment: The report highlighted that lesbian and bisexual women in Sri Lanka are often subject to discrimination in employment on the grounds of their sexual orientation. This is seen in the form of being: assigned the worst shifts; required to meet higher quotas than their peers; forced to dress against their gender identity; and being subject to sexual harassment and/or termination of their employment.

In another alternative report to the CEDAW Committee, a coalition of civil society organisations, including the Women’s Resource Centre, reported that “transgender women sex workers who are arrested are often kept over night and forced to dress like men while in custody. They are often picked up by the police purely because they are transgender.” Transgender women sex workers also faced physical and gender-based violence without redress.

The Kaleidoscope Foundation, in collaboration with Equal Ground, submitted a separate shadow report to the CEDAW Committee demonstrating how the criminalisation of same-sex activity was in breach of international human rights law and section 12 of the constitution. The report also outlined how the failure to recognise the gender identity of transgender women is in breach of CEDAW. The report further outlined discrimination against LBTI persons in education, employment, health and economic, social and familial equality.

The Women’s Media Collective also submitted a report to the CEDAW Committee addressing the discrimination of lesbians, bisexual women and transgender persons. Their report focused on, amongst other issues, the stereotypes and harmful practices towards LBT women and gender-based violence against LBT persons:

  • Stereotypes and Harmful Practices Towards LBT: The report noted that research has shown LBT people are viewed as “people who have some kind of sexual or psychological disorder, who cannot live in a normal way.” It also reports that “social media networks are rife with anti-LGBT hate groups, who see the LGBT community as an aberration, a western important and un-Sri Lankan.”
  • GenderBased Violence Against LBT Persons: The report cited a study by the Women’s Support Group which found of 33 LBT persons interviewed, more that half had experience physical and sexual violence. All respondents had experienced some form of emotional violence, including gender norm enforcement, restrictions of socialization, physical and emotional neglect, family ostracism and pressure into heterosexual marriage.

The report concluded that the criminalisation of consensual adult same-sex behaviour and relationships makes LBT individuals vulnerable to abuse at many levels and prevents them from seeking redress for fear of penal repercussions.

2016

In August, Human Rights Watch launched a report that addressed discrimination on grounds of gender identity and sexual orientation in Sri Lanka. The report included anecdotal evidence from members of the LGBT community who had experienced discrimination and physical and sexual violence. One respondent, a 31-year-old lesbian, was repeatedly harassed and subjected to death threats by her girlfriends’ father in late 2007 but did not go to the police. She stated: “I’m a criminal in this country. What’s the point wasting time saying something when the laws are unequal and unjust? I just don’t want to be illegal.”

2014

Several instances of abuse of gay people were described in a shadow report by Equal Ground, submitted before the United Nations Human Rights Committee:

  • Violence: The report included many stories of violence, including a trans-man who was attacked and chased by men on motorbikes as he and his boyfriend tried to escape in their car; a 16 year-old-student who was raped by two older students; and two men who in 2008 claimed to have been abducted and tortured on account of their sexuality. According to a 2011 study, “37% of LGBT respondents were victims of physical abuse, threats, assault, harassment, rape, or battery.”
  • Police abuse: “Sri Lankan police conduct arbitrary arrests of LGBT individuals without such evidence on the purported grounds that the arrested individuals, being lesbian, gay, bisexual or transgender, will commit such acts in the future. Most of these arrests lead not to the filing of charges, but to bribery, blackmail, extortion, violence or coerced sexual favours.”

2013

Gay rights campaigners in Sri Lanka were reportedly ordered to stop campaigning before the Commonwealth Heads of Government Meeting.

2012

UNHCR reports that one gay rights group, Companions on a Journey, was forced to close following exposure in the press as a group “promoting homosexuality”. One member of the group, whose name was reported in the paper, was evicted by his landlord. The office of the organisation was searched by police, and a number of gay activists questioned for several hours.

Legislative News

2018

During its third UPR cycle, the Sri Lankan government supported recommendations from Italy, Argentina and Portugal on preventing and combating discrimination towards LGBT persons. Numerous recommendations to decriminalise consensual same-sex conduct were, however, noted.

2017

In its Concluding Observations, the CESCR urged Sri lanka “to amend the Penal Code with a view to decriminalising consensual same-sex conduct.” It further recommended that Sri Lanka “take urgent steps to combat and prevent violence against LGBTI persons and ensure their equal enjoyment of all human rights, in particular the right to health, education, work and housing.”

The CESCR also recommended that Sri Lanka adopt an anti-discrimination law that encompassed sexual orientation and gender identity within its protective scope.

In January, the government dropped a proposal to decriminalise same-sex sexual conduct from the Human Rights Action Plan; the State Minister of Finance Lakshman Yapa Abeywardena stated that the President had decided to abandon “culturally inappropriate” proposals.

2014

During a review of its record on civil and political rights by the Human Rights Committee in October Geneva, the Government of Sri Lanka expressly stated: “Article 12 of the Constitution recognizes non-discrimination based on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds as a Fundamental Right. This measure protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities.”

2012

During its second UPR cycle, recommendations to decriminalise consensual same-sex sexual conduct “did not enjoy the support of Sri Lanka.”

2011

A draft of a Bill of Rights, prepared by a Committee reporting to the Ministry of Disaster Management and Human Rights, expressly included sexual orientation as a protected characteristic. The Bill was submitted to the Ministry of Justice for review, as mandated by the National Human Rights Action Plan adopted by Cabinet in 2011, but has yet to be adopted.

Footnotes
1. Penal Code 1883, Section 365 Unnatural Offences

“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 […]

Explanation – penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Full text.

2. Penal Code 1883, Section 365A Acts of gross indecency between persons

“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 description for a term which may extend to two years or with a fine, or with both…” Full text.

3. Penal Code 1883, Section 399 Cheating by Personation

“399. 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.

402. Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.” Full text.

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