In this decision, the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) found that the Sri Lankan law criminalising consensual, same-sex intimacy between women was a human rights violation. The landmark decision was handed down on 21 February 2022 and was the first time the Committee considered an individual complaint relating specifically to the criminalisation of lesbian and bisexual women.
The criminalisation of same-sex sexual conduct in Sri Lanka has its origins in 19th century British colonial law. Introduced in 1883, section 365A originally criminalised “any act of gross indecency” between males. In 1995, when reforming the Penal Code, the government ignored recommendations to repeal the provision and instead amended s365A from “male person” to “person”, bringing lesbian and bisexual women within its remit. Anyone convicted of a gross indecency offence can be imprisoned for up to two years.
The CEDAW Committee monitors states’ implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and frequently makes recommendations regarding lesbian, bisexual, transgender and intersex women in country periodic reviews. Sri Lanka has ratified both the Convention and the Optional Protocol, the latter of which allows individual complaints to be considered by the CEDAW Committee.
The Sri Lankan Constitution explicitly prevents any legal challenge to the validity of laws that are already in force. Constitutional challenges can only be brought to bills that have not yet been passed into law. The complainant in this case was therefore unable to use the Sri Lankan courts to challenge the existing law.
The complaint was submitted to the CEDAW Committee in August 2018. It argued that the criminalisation of lesbian and bisexual women in Sri Lanka violated the complainant’s human rights protected under CEDAW. Rosanna Flamer-Caldera highlighted that the gross indecency provision engenders prejudice and discrimination against lesbian and bisexual women in Sri Lanka. It makes them more vulnerable to gender-based violence, harassment and abuse both in public and in family environments. The fear of being discriminated against or even prosecuted because of the existing law prevents them from approaching public bodies, such as the police, for assistance in situations of forced marriage, rape and violence.
Consequently, this case specifically highlighted the intersectional impact of the criminalising provisions on lesbian and bisexual women, who face discrimination both because they are women and because they are lesbian or bisexual.
The complainant sought a wide range of remedies, beginning with the repeal of s365A by the Sri Lankan government and a declaration by the CEDAW Committee that the criminalisation of same-sex consensual relationships between adult women is contrary to the Convention. She also sought amongst other things, the wider decriminalisation of consensual same-sex activity in private between adults and effective protection from gender-based violence against women based on the intersection of their sex and sexual orientation.
On 21 February 2022, the CEDAW Committee decided that Rosanna Flamer-Caldera’s rights had been violated by the criminalisation of same-sex sexual intimacy in Sri Lanka. Specifically, the Committee found that s365A violated her right to non-discrimination (Article 2 (a) and (d)-(g)), her right to be protected from gender-based violence (Article 2(c)-(f), Article 5(a)), her right to participate in the public and political life of the country (Article 7(c)), her right to equality before the law (Article 15(1), and her family rights (Article 16). It also found that in maintaining criminalisation, Sri Lanka was failing to meet its obligations to counter gender stereotypes and prejudices (Article 5(a)). In considering the violation of Article 5(a), the Committee stated that the “decriminalisation of consensual same-sex relations is essential to prevent and protect against violence, discrimination and harmful gender stereotypes.”