a community group working to improve the rights and development of marginalised groups, including LGBT people.
Types of criminalisation
- Criminalises LGBT people
- Criminalises sexual activity between males
- Criminalises sexual activity between females
- Criminalises the gender expression of trans people
Same-sex sexual activity is prohibited under the Penal Code 1883, which criminalises acts of ‘carnal knowledge against the order of nature’ and ‘gross indecency’. These provisions carry a maximum penalty of ten years’ imprisonment and a fine. Both men and women are criminalised under this law. In addition to potentially being captured by laws that criminalise same-sex activity, trans people may also face prosecution under an impersonation law with a maximum penalty of three years’ imprisonment and a fine.
The 1883 Penal Code was inherited from the British during the colonial period, in which the English criminal law was imposed upon Sri Lanka. Sri Lanka retained the law upon independence and continues to criminalise same-sex sexual activity today. In early 2023 the government of Sri Lanka announced its support for the repeal of the criminalising provisions.
There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrest. Reports by civil society organisations, activists, and police records suggest that numerous arrests take place each year, and those detained are often subjected to torture in the form of beatings and forced anal and vaginal ‘examinations’. There is evidence that trans people are targeted specifically under the Vagrancy Ordinance and laws against impersonation. There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including assault, harassment, extortion, and the denial of basic rights and services.
In February, the government announced its support for the repeal Sections 365 and 365A of the Penal Code, which criminalise same-sex sexuality activity. Responding to recommendations made by the governments of Canada, Norway, the United Kingdom and the United States during the country’s Universal Periodic Review, Minister of Foreign Affairs, M.U.M. Ali Sabry stated, “There is a Private Member Bill initiated by Sri Lanka Podujana Peramuna (SLPP) Government MP and Attorney Premnath C. Dolawatte. The Government will support its position of decriminalising same-sex relationships.”
In May, the Supreme Court declared in an opinion ”that the Bill as a whole or any provision thereof is not [emphasis added] inconsistent with the Constitution”, therefore green-lighting the ongoing legislative process.
In November, the Court of Appeal found a police circular which sets out guidelines limited to the police treatment of transgender persons, should also extend to the broader LGBTIQ community. The circular contains several positive features including specifying that “under no circumstances shall such persons be subjected to verbal / physical or psychological harassment or humiliation by police officers.” The police circular and the broadening of the terminology to include the wider LGBTIQ community resulted through a case brought by EQUAL GROUND and other human rights activists.
On 23 March, in a case brought by Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND, supported by the Human Dignity Trust, the UN Committee on the Elimination of Discrimination against Women issued a ruling finding that the criminalisation of same-sex sexual activity between women is a human rights violation. It found that Ms Flamer-Caldera had been subjected to gender-based discrimination and violence by the Sri Lankan authorities, who had also breached her right to access to justice. The Committee urged Sri Lanka to decriminalise same-sex sexual activity, and to take action to stop the threats, harassment, and abuse which Ms Flamer-Caldera is subjected to due to her identity.
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.
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.”
In May, the Ministry of Health issued a circular to issue Gender Recognition Certificates (GRC) to the transgender community to assist with the process of changing sex on a birth certificate. The GRC will only be issued to those above 16 years of age and will indicate the desired gender as to be shown on the birth certificate.
In November, the Supreme Court, in considering a case challenging charges under gross indecency in terms of Section 365A of the Penal Code, affirmed the conviction of the lower courts, but held that a custodial sentence is not warranted as the acts were between consenting adults. The courts recognised that the colonial laws of sodomy and buggery, that have been a part of Sri Lanka’s Penal Code since the 19th century, have been repealed in the United Kingdom and that the rationale for their abolishment in the UK may have been that according to contemporary thinking, consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation. However, while recognising that a custodial term of imprisonment is not commensurate with the offence that was committed, the court was of the view that the offenders “should be afforded an opportunity to reform themselves.”
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.
Flamer-Caldera v Sri Lanka
This complaint, submitted in August 2018, challenges the criminalisation of lesbians and bisexual women in Sri Lanka. It was submitted by a lesbian who has experienced significant harassment, discrimination and stigma engendered by the current law.
In June, it was reported that a lesbian couple had been arrested and held by police. The father of one of the women had objected to the relationship, filing a complaint with the police, after which both women were arrested and produced in court. In March the Interim Magistrate at the Wattala Magistrate’s Court ordered the women to present to a psychiatrist in order to receive a psychiatric evaluation, before proceeding with the case. Following a a successful revision application to the High Court of Negombo, the Wattala Magistrate’s Court dismissed the case against the women.
In October, local NGO EQUAL GROUND and Human Rights Watch said that at least seven people had been subjected to forced physical ‘examinations’ since 2017 in an attempt to ‘prove’ same-sex conduct. The report cited a local lawyer who claimed to have represented six defendants accused of same-sex sexual activity in the previous year.
In October, six people were arrested for same-sex sexual activity. While in detention they were subjected to physical abuse by authorities, including whipping with wires, and forced anal examination and HIV tests.
The US Department of State report on Sri Lanka noted that police the Vagrancy Ordinance to detain transgender individuals on the suspicion that they were engaging in prostitution, and section 399 to harass people who expressed themselves in gender non-conforming ways. However, criminal prosecutions under the criminalising legislation were rare.
A shadow report by EQUAL GROUND submitted before the UN Human Rights Committee suggested that there had been no convictions in Sri Lanka since it gained independence in 1948, though the police used the laws to harass and extort money or sexual favours from LGBT individuals with impunity, and assaulted gay men and lesbians in Colombo and other areas.
We’ve also assessed Sri Lanka’s sexual offence laws against international human rights standards. Not only does Sri Lanka criminalise same-sex sexual activity and expression of gender identity, it also fails to properly protect other vulnerable groups, such as women and children, from sexual offences.
A UK Home Office Country of Origin report on Sri Lanka summarised the widespread discrimination faced by LGBT people, including in employment, education, healthcare, and housing. They are subjected to hate speech online, emotional violence, and physical abuse.
The US Department of State report stated that while in its view prosecutions were rare, the threat of arrest was used by police to assault, harass, and sexually and monetarily extort LGBT people. Transgender people faced societal discrimination, including arbitrary detention, mistreatment, and discrimination in accessing employment, housing, and healthcare.
A report by the UN Special Rapporteur on freedom of religion or belief, following a visit to Sri Lanka, noted that LGBT people reported that religious teaching was a significant factor in the marginalisation of the community and led to deep personal struggles for those who had to attempt to reconcile their religious beliefs with their sexual and gender identities.
EQUAL GROUND, in its shadow report to the CEDAW Committee, described numerous cases of abuse, including:
- 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 overnight and forced to dress like men while in custody. They are often picked up by the police purely because they are transgender.”
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. 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.
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 girlfriend’s 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.”
Several instances of abuse of gay people were described in a shadow report by EQUAL GROUND, submitted before the United Nations Human Rights Committee, including physical abuse, threats, assault, harassment, rape, battery, as well as bribery, blackmail, extortion, and violence by police.
Gay rights campaigners in Sri Lanka were reportedly ordered to stop campaigning before the Commonwealth Heads of Government Meeting.
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.
Litigation in Sri Lanka
The Human Dignity Trust has supported its civil society partner in Sri Lanka, EQUAL GROUND, and its Executive Director in her challenge to the criminalisation of same-sex sexual activity between women. The Trust worked on Ms Flamer-Caldera’s case at the CEDAW Committee for eight years, representing the applicant, and building on the findings of its report Breaking the Silence.Read more about the Trust's work
a non-profit organisation seeking economic, social, cultural, civil, and political rights for LGBT people in Sri Lanka.
a group promoting the legal, health, and social wellbeing of transgender people.
Bangladesh criminalises same-sex sexual activity between men. Sentences include a maximum penalty of life imprisonment.
Myanmar criminalises same-sex sexual activity between men. The gender expression of trans people is also criminalised. Sentences include a maximum penalty of ten years’ imprisonment.
Singapore criminalises same-sex sexual activity between men. Sentences include a maximum penalty of two years’ imprisonment.
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