Status of LGBTIQ persons within Sri Lanka’s legal framework | Daily News

Status of LGBTIQ persons within Sri Lanka’s legal framework

Charitha Kulatunge AAL

 

In a nutshell, LGBTIQ refers to Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning persons; these terms may sound novel to some of us and, thus, some insight into same is required at the outset, before we could proceed to a discussion on the legal status of LGBTIQ persons in Sri Lanka.

In common parlance, a lesbian is a woman who is sexually and/or emotionally attracted to other women whereas gay is a man who is sexually and/or emotionally attracted to other men; both these conditions are commonly referred to as ‘homosexuality’ which is neither a disorder nor a disease. The World Health Organisation (WHO) emphasises that homosexuality is a natural and non-pathological variation of human sexuality.

As much as ‘homosexuality,’ bisexuality is also based on the sexuality of a person. Bisexuals can be defined as those people who are sexually and/or emotionally attracted to both individuals of the same sex and a different sex as they are.

On the other hand, transgender persons are individuals whose appearance and characteristics are perceived as gender atypical and whose sense of their own gender is different to the sex they were assigned at birth; some transgender persons hesitate to identify themselves as ‘male’ or ‘female’ instead perceive themselves as belonging to a third gender.

The WHO has confirmed that being transgender may not be pathological if it does not cause any distress to such transgender persons.

Turning to intersex people, they are those born with physical or biological sex characteristics (including sexual anatomy, reproductive organs and/or chromosomal patterns) that do not fit the typical definition of male or female. These characteristics may be apparent at birth or emerge later in life, often at puberty.

And, questioning persons may be defined as persons who are questioning, unsure, still exploring or concerned about applying a social label to themselves as regards their sexual orientation or gender identity. As it becomes clear from the above definitions, people are born with different sexual orientations, gender identities and sex variations; yet, they all are humans entitled to the same rights, freedoms and liberties.

Hence, LGBTIQ persons should not be ill-treated or discriminated on the grounds of their sexuality, gender expressions and sex variations.

Although lesbian, gay, bisexual, transgender, intersex and questioning persons face different challenges in life, they all are perceived to fall outside of a gender binary and socially constructed gender norms, and consequently they all are targeted for human rights violations that are revealed in this article for remedial action.

Plight of LGBTIQ Persons on domestic and international fronts

The LGBTIQ community, both in the national and international spheres, face continuous and pervasive violence, torture, persecution, abuse, harassment, ill-treatment, discrimination, stigma and bullying as it becomes evident from the Report issued by the UN High Commissioner for Human Rights on June 1, 2015 as well as the latest Shadow Report submitted to the UN Human Rights Committee through the International Gay and Lesbian Human Rights Commission (IGLHRC).

As in many other countries, in Sri Lanka, the law is used to prosecute individuals on the basis of their sexual orientation and gender identity, leaving room for homophobic and transphobic hate crimes to be committed against LGBTIQ persons with impunity; since homosexuality and transgender expressions are caught under the provisions of the Penal Code of Sri Lanka, LGBTIQ persons are unscrupulously branded as criminals or perverts by the law enforcement authorities and anti-LGBTIQ groups.

According to the information shared by the local LGBTIQ Community at the ‘National Consultation on Human Rights Issues related to MSM and TG Communities for HIV Prevention in Sri Lanka’ on October 15, 2015, widespread discrimination, stigma, violence, harassment and abuse prevail against the LGBTIQ community in the fields of employment, education, healthcare, housing, social security and even within their families.

Stereotyped attitudes and gender norms within families and communities, have the undesirable effect of LGBTIQ people being ill-treated and expelled from their family homes, being disinherited and forced to marry against their choice or will.

Their access to education is hindered and they are also forcefully sent to psychiatric institutions and sometimes they are forced to relinquish their own children and, punished for activist work whilst being attacked on their reputation and privacy.

Sri Lanka family laws do not recognize same-sex marriages or any same-sex civil unions, and LGBTIQ people who have come out of the closet often report being verbally and/or physically harassed by their family members and relatives.

In Sri Lanka, marriages are registered under the Marriage Registration Ordinance, Kandyan Marriage and Divorce Act or the Muslim Marriage and Divorce Act; None the less, perusal of the terminology of these statutes elucidates that these statutes refer only to ‘male’ and ‘female’ persons as the two parties to a given marriage thereby excluding marriages amongst LGBTIQ persons.

Any violence the LGBTIQ persons may undergo within their sexual relationships, is not covered by the Domestic Violence Act, No.34 of 2005 which allows cohabiting couples to obtain a protection order against his/her violent partner; this situation is due to the prevalence of anti-sodomy laws and gender impersonation laws under the Penal Code of Sri Lanka which deters the LGBTIQ persons from seeking redress under the 2005-Act for fear of punishment.

Stigma and negative stereotyping of LGBTIQ people also prevail in the education sphere, which subject them to harassment and bullying by their fellow students and teachers. There have been instances where LGBTIQ students have been constructively expelled from schools and also discriminated and refused admission to universities due to their peculiar gender expressions and sexual orientations.

In fact, humiliation, isolation and depression arising from such discrimination, bullying and harassment, in certain situations, have led to LGBTIQ students attempting to commit suicide.

There’s also a lack of anti-discrimination laws in Sri Lanka for the protection of rights of LGBTIQ persons, adversely affecting LGBTIQ people in many fields including employment.

LGBTIQ persons are not protected from sexual harassment at the workplace and are unable to access formal redress without incurring further abuse and harassment by the employers.

LGBTIQ individuals also face job discrimination and some have lost their jobs because their identification documents did not match their outward-appearance. Eventually, most of the LGBTIQ persons have, though unwillingly, turned themselves into commercial sex workers as they are deprived of their other livelihoods by the discriminatory practices prevalent within the employment sphere.

In Sri Lanka, transgender persons are unable to obtain legal recognition of their preferred gender as there is no arrangement for granting identification documents for transgender persons recognising their self-identified gender; and, inability to produce a valid identification document showing their current gender expression makes it extremely difficult for transgender persons to access universities or find suitable employment. Further, the lack of a valid identification document also results in transgender persons being arrested by Police when found on the streets for gender impersonation. Anecdotal evidence also shows that brutality is committed against LGBTIQ people in police stations, remand prisons, streets and other public places by policemen. Some transgender persons reveal how they have been subjected to sexual abuse and harassment by the Police who often ask for sexual gratification for such transgender persons’ release or, require such persons to disclose their underlying sex when found in the streets.

Medical practitioners and healthcare service providers are also amongst those accused by the local LGBTIQ community members for having performed forcible and unnecessary genital and anal examinations on them, for asking abusive and humiliating questions on their sexuality and gender identities and, for addressing community members in unethical and shameful language.

In a country like Sri Lanka where homosexuality and transgender activities are criminal offences, advocating such activities and participating in LGBTIQ equality marches could also be illegal.

Sometimes, such events are denied police protection under the guise of threats to public order, morals, security, etc; yet, it must be borne in mind that such a situation amounts to a denial of the LGBTIQ persons’ freedom of association and peaceful assembly.

Further, due to the criminalisation of LGBTIQ conduct such individuals are deterred from seeking healthcare services for fear of having to reveal their criminal conduct; this situation has a far reaching impact on our society by promoting the spread of sexually transmitted diseases including HIV/AIDS amongst LGBTIQ community members besides impeding the LGBTIQ persons’ right to medical treatment and healthcare.

Turning to Intersex children, such children are born with atypical sex characteristics and, are often subjected to unnecessary surgeries in an attempt to fix their sex even without their informed consent; and, there are no enacted laws in Sri Lanka for the protection of the rights of intersex persons either within the family unit or in the fields of education or employment or healthcare.

Therefore, it becomes evident from the above facts that the LGBTIQ community have become a vulnerable and marginalised group in our society that calls for special care and attention of the State and the rest of the society.

The issues faced by LGBTIQ persons should be taken as issues faced by every citizen of our country given the adverse impact such issues have on the well-being of our society as a whole and, the country’s economy and development at its extreme end. 


 

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