In response to the call by the Public Representations Committee (PRC) for public submissions relating to proposed constitutional reforms, the following submission was made to the PRC on March 15th 2016. Titled ‘A Meaningful Right to Equality and Non-Discrimination: Recognising Sexual and Gender Identities’ this submission focused on specific challenges faced by members of the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) communities. The signatories bring together self-identifying members of the LGBTIQ communities, their family and friends and others who support these rights.
[Editors note: A glossary of terms used in this submission, kindly provided to Groundviews by the authors, can be found at the bottom of this article.]
We present this submission as individuals self-identifying as Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer (LGBTIQ), as family members and friends of LGBTIQ people, and as individuals/communities coming forward in support of a community of Sri Lankans who wish to acknowledge and break the silence surrounding a people whose rights have been denied through the mechanisms and institutional structures of a democratic state.
While we categorically insist that the rights of the individual to equality, dignity and non-discriminiation need to be recognised and strengthened in the new Constitution, there needs to be specific reference to ‘sexual orientation and gender identities’ in the Fundamental Rights Chapter along with ‘race, religion, language, caste, sex.’ Claiming specific mention in this Article is not a claim to ‘special rights’ but to claim equal rights to protection under the law and the right to non-discrimination. Without detailed mention of specific communities that are persecuted in our society, we will not be able to achieve the goal of holistic equality for all citizens of Sri Lanka. As the Sri Lankan Constitution is the supreme law of the land, the acknowledgement of these equal rights in the Fundamental Rights Chapter will have a cascading effect, allowing for a reading down of the provisions of the Penal Code, which in turn will have a real impact on the lives of LGBTIQ members, their families, their friends and society at large. This demand by the LGBTIQ communities is one that seeks to pave the path for ALL Sri Lankan citizens to live life with freedom, integrity, dignity and equality.
The LBTIQ identifying individuals who form part of the undersigned speak for larger silenced communities. While we do not claim to represent all of the LGBTIQ communities in their entirety, we speak from a lived history and our own daily vulnerabilities and aspirations. The term LGBTIQ has been adopted within a collective struggle for equality and political recognition for specific identities within the gender and sexualities continuum. In its spirit, the term can also be extended to include the non-traditional understandings of gender and sexual identity that go beyond the binaries of ‘homosexuality’ and ‘heterosexuality.’ The framing of ‘LGBTIQ’ that we have adopted here, as a speaking position for the purposes of making this submission, encompasses a range of desires and identities, which question the ‘naturalness,’ the ‘rightness,’ the ‘inevitability,’ and ‘the compulsion’ of heterosexuality.
A culture of violence and rights violations – on the grounds of actual or perceived sexual orientation or gender identity – remains a serious problem in Sri Lanka. It becomes necessary, relevant and significant then that LGBTIQ persons recognise that theirs is a context where there is a state obligation to address LGBTIQ vulnerability and violence against LGBTIQ persons. And that this is present and evident in the institutional structures, mechanisms and processes of a state. The lack of state information with respect to violence faced by LGBT persons cannot be taken as indicative of an absence of violence experienced by LGBT persons. The continuum of violence against LGBTIQ persons brings into focus a spectrum of acts of violence and violation that range from lethal, physical harm and self-harm or suicide, to more symbolic forms of violence such as non-recognition, negative hyper-visibility (especially in mass media) and a culture of silence and invisibility around ways of living and being that challenge the primacy of the heterosexual, patriarchal family as the Foundation of our society.
The culture of invisibility around the lives of some of us within the LGBTIQ communities in Sri Lanka today has afforded us a sense of freedom. This is not the same as occupying a state of freedom within our articulations of gender identity and sexual orientation as an inalienable right. It must be recognised that this is a “hesitant freedom, for none of us can afford to forget how fragile the few accepting spaces we inhabit are, or how few of us have access to them.” However, a sense of freedom has allowed us, in defining moments such as this, a speaking position: a position from which to assert the argument for freedom espoused within the Constitution of Sri Lanka as a Fundamental Right. It must also be asserted that protecting LGBTIQ people from violence and discrimination does not require the creation of a new set of LGBTIQ-specific rights, nor does it require the establishment of new international human rights standards. The legal obligations of States to safeguard the human rights of LGBTIQ people are already clearly established in international human rights law on the basis of the Universal Declaration of Human Rights and subsequently agreed international human rights treaties. All people, irrespective of sex, sexual orientation or gender identity, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly.
A primary struggle of LGBTIQ communities in Sri Lanka has been to secure the right to equality. One of the primary challenges to this has been the impact of provisions 365 and 365A in the Penal Code which deal with ‘gross indecency’ and ‘unnatural sex.’ Although the Sri Lankan Government has in recent years repeatedly argued, largely in international fora, that no members of the LGBTIQ communities have been prosecuted under these provisions and hence there is no need to repeal these provisions, this belies the lived reality of these communities, particularly those who are more vulnerable. The fact that these provisions remain in our laws is profoundly problematic as its impact is to criminalise citizens of this country and calls into question the ethos of equality enshrined in the Constitution. Further, State officials have sought to insist that LGBTIQ members are included in the category ‘sex’, listed in the Fundamental Rights Chapter Section 12 (2) and 12 (3). This provision sets out on what basis discrimination shall be outlawed by the Constitution. As we go on to discuss, this argument, however is profoundly inadequate and untenable.
When the Human Rights Committee conducted its consideration of the fifth periodic report of Sri Lanka in October 2014, on the country’s implementation of the provisions of the International Covenant on Civil and Political Rights, representatives from the government offered an explanation that the Constitution of Sri Lanka enshrined provisions of non-discrimination and equality irrespective of sexual orientation or gender identity. The Committee, however, remained concerned about the continued applicability of Sections 365, 365A and 399 of the Penal Code and their capacity to criminalise members of the LGBTIQ communities, in addition to widespread discrimination and stigmatisation of persons on the basis of their sexual orientation and gender identity. The Committee recommended that Sri Lanka amend Sections 365, 365A and 399 of the Penal Code to ensure full compliance with Articles 2 and 26 of the International Convention on Civil and Political Rights. It also highlighted that Sri Lanka should explicitly state that sexual orientation and gender identity are prohibited grounds for discrimination. Most importantly, the Committee suggested that measures be strengthened to protect against violations of LGBTIQ rights and that enhanced awareness raising and training measures be conducted on such rights.
For equality to have full meaning and effect for LGBTIQ communities (or for that matter any other citizen of this country), this right to equality and non-discrimination needs to be unambiguous. Sexual orientation is a relatively recent notion in human rights law and practice whereas prejudices, negative stereotypes and discrimination are deeply embedded in our value systems and patterns of behaviour. For many public officials and opinion-makers, the expression of homophobic (see annexure one) and transphobic prejudice remains both legitimate and respectable – in a manner that would be unacceptable for any other community.
Rights at Stake
LGBTIQ people do not claim any ‘special’ or ‘additional rights’ but the observance of the same rights as those of heterosexual persons. These rights, which are basic civil, political, social and economic rights, are often denied either by law or practices. The following violations have been documented in all parts of the world:
The right to non-discrimination and to be free from violence and harassment is usually denied by omitting sexual orientation in anti-discrimination laws, constitutional provisions or their enforcement.
The right to be free from torture or cruel, inhuman or degrading treatment is infringed upon by police practices, in investigations or in the case of lesbians, gays and bisexuals in detention. Arbitrary arrest occurs in a number of countries with individuals suspected of having a homo/bisexual identity.
The right to a fair trial is often affected by the prejudices of judges and other law enforcement officials.
The right to privacy is denied by the existence of ‘sodomy laws’ applicable to lesbians, gays and bisexuals, even if the relationship is in private and between consenting adults.
The right to free expression and free association may either be denied explicitly by law, or lesbians, gays and bisexuals may not enjoy them because of the homophobic climate in which they live.
The right to work is the most affected among the economic rights, with many LGBTIQ persons being unfairly dismissed because of their assumed or actual sexual orientation or facing discrimination in terms of employment policies and practices. “Consequently, the rights to social security, assistance and benefits are affected. These in turn have an impact on the standard of living (for example, when they have to disclose the identity of their spouse).
The right to physical and mental health is at conflict with discriminatory policies and practices, some physicians’ homophobia, the lack of adequate training for health-care personnel regarding sexual orientation issues or the general assumption that patients are heterosexuals.
LGBTIQ students may not enjoy the right to education because of an unsafe climate created by peers or educators in universities.
These contexts and parameters of discrimination and violation recorded by LGBTIQ communities frame a perspective for approaching discrimination and violation within the specificities of the Sri Lankan context. The onus here is not for LGBTIQ persons to prove the range and volume of violations, but the onus lies with the State to prove otherwise. The lack of documentation on the part of the State is deeply problematic and symptomatic of a larger problem.
Even while members of LGBTIQ communities face harassment, exploitation and discrimination based on their LGBTIQ status, they are unable to seek protection and recourse under the law. When members of LGBTIQ communities have sought redress from the Human Rights Commission under the previous administration, the HRC refused to accept the case stating that violations of LGBTIQ rights do not constitute violations of Fundamental Rights. The HRCSL’s enabling law restricts its scope to ‘fundamental rights’ alone, that is, those human rights that are entrenched in the Constitution and therefore justiciable, and not all human rights which Sri Lanka has undertaken to respect, protect and fulfil through international law.
While this particular interpretation of the Fundamental Rights Chapter can be viewed as restrictive and problematic, it still is an indication of the LGTIQ communities’ experience as an unprotected section of the citizenry and thus less than equal. The low numbers of cases filed by the State under Sections 365 and 365A notwithstanding, other ways are routinely employed to harass and intimidate LGBTIQ individuals resulting sometimes in their pleading guilty to charges. These colonial-era provisions, long removed from the books in the United Kingdom, cast a long, fearful shadow that can and have been used by private individuals and state officials to belittle, harass, intimidate and enact violence such as seeking bribes or ‘sexual favours.’ Other provisions of the Penal Code have been used against members of the LGBTIQ communities by the police to detain and prosecute. The Vagrancy Ordinance is commonly evoked and gay men, lesbians or transgender persons have been harassed, taken away for questioning and detained. ‘Cheating by impersonation’ under Section 399 is used against individuals, particularly transgenders and transsexuals, who have then faced prosecution.
It can be argued that there is a growing public acceptance of the LGBTIQ communities, at least in some sections of society. This recognition, however, is neither unanimous nor unconditional. Similar to the public space provided for and support extended to women’s rights, this acceptance too is tied to deeply-held patriarchal and hetero-normative attitudes and perceptions, and is tolerant at best and barely ever supportive. While diverse sexual identities and practices are part of the lived realities of Sri Lankans from varied strata, regions and communities, for individuals to ‘come out’ as gay is a highly traumatic experience, where the possibility of ostracism and persecution is very real. Such persecution is often from one’s own family and immediate community of friends, relatives and colleagues. This has meant that individuals have had to leave their family, friends and other social networks and re-build their lives again in a context where the law as it stands in the books is understood to criminalise and, in everyday life, offers no support or protection. This has had a tremendous impact on the lives of LGBTIQ people, who have struggled to access mental and physical healthcare services particularly sexual and reproductive health-care services, braving the possibility of stigmatization. Employment too has been particularly a challenge, not only in terms of securing a job, but also in terms of accessing redress for various challenges they have faced in the course of their employment.
The rights that LGBTIQ members can claim are often based on secrecy and discretion, that to be gay is to be gay in private and not to be publicly declared. It should be no surprise that these communities are largely invisible. As such, LGBTIQ people seldom contemplate litigation, as their orientation and identity would be exposed and sensationalised by the media. LGBTIQ individuals, who form part of the society and citizenry of this country, are denied the right to a full and happy life, alienated from all aspects of their lives – be it work, home or society at large – just for being who they are and living their life with honesty and integrity.
Ensuring Equal Rights
The lack of reference to ‘sexual and gender identities’ in the Fundamental Rights Chapter is symptomatic of a much larger silencing. While creating public awareness, understanding and empathy remains a significant challenge, reform of the law and constitutional framework can prove a vital part this struggle to secure rights and public acceptance. To have acceptance and protection within the law can make space for the broader struggle for acceptance in broader society.
Recent years have seen significant advancements in the protection of LGBTIQ rights around the world so that members of these communities can claim the rights due to other citizens. The enormous difference that these changes have made, not just to individual LGBTIQ citizens, but to the ethos of equality in nations as a whole are there for the world to see. In recognising the rights of sexual orientation and gender identities in the Constitution, Sri Lanka will join a number of other countries from the developing world including South Africa, Ecuador and Nepal. The Right to Equality (Article 18) in Nepal’s new Constitution explicitly includes a number of diverse groups including ethnic communities, backward classes, handicapped and disabled, economically disadvantaged persons and gender and sexual minorities. India too has announced that its Supreme Court was reviewing a judgement that reinstated the colonial-era law.
Being gay in Sri Lanka remains, in effect criminal as LGBTIQ individuals cannot access and secure the same degree of protection that is claimed by their fellow citizens. As the reading of the Constitution by the HRC demonstrates, protection in this context depends on the largesse and discretion of the State rather than on clearly stated constitutional rights.
Hence, while we categorically insist that the rights of the individual to equality, dignity and non-discriminiation need to be recognised and strengthened in the new Constitution, there needs to be specific reference to ‘sexual orientation and gender identities’ in the Fundamental Rights Chapter along with ‘race, religion, language, caste, sex.’ Claiming specific mention in this Article is not a claim to ‘special rights’ but to claim equal rights to protection under the law and the right to non-discrimination. Without detailed mention of specific communities that are persecuted in our society, we will not be able to achieve the goal of holistic equality for all citizens of Sri Lanka. As the Sri Lankan Constitution is the supreme law of the land, the acknowledgement of these equal rights in the Fundamental Rights Chapter will have a cascading effect, allowing for a reading down of the provisions of the Penal Code, which in turn will have a real impact on the lives of LGBTIQ members, their families, their friends and society at large. This demand by the LGBTIQ communities is one that seeks to pave the path for ALL Sri Lankan citizens to live life with freedom, integrity, dignity and equality.
 From “Because I have a Voice,” by A. Narrain and G. Bhan, 2005, Yoda Press, Delhi (p.3)
 From “Because I have a Voice” by A. Narrain and G. Bhan, 2005, Yoda Press, Delhi (p.1)
 “Human Rights Committee considers report of Sri Lanka”, OHCHR, October 8th, 2014, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15146&LangID=E
 “Lesbian, Gay, Bisexual and Transsexual (Lgbt) Rights”, Health and Human Rights Info, accessed March 14th, 2016, http://www.hhri.org/thematic/LGBTrights.html#Violations of LGBT Human rights
 “Sexual Orientation and Human Rights Human”- Rights Education Associates (HREA) 2003 http://www1.umn.edu/humanrts/edumat/studyguides/sexualorientation.html
 Law and Society Trust (2010) Sri Lanka Atrophy and Subversion of the Human Rights Commission, ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia.
 Nichols A. (2010) Dance Ponnaya Dance Feminist Criminology April 2010, Volume 5, No.2 http://fcx.sagepub.com/content/5/2/195 (http://grassrooted.net/wp-content/uploads/2010/08/Nichols-Dance-Ponnaya-Dance.pdf)
 http://www.island.lk/index.php?page%20cat=article-details&page=article-details&code%20title=22479; http://ceylontoday.lk/90-94303-news-detail-woman-marries-posing-as-a-man.html
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LGBTQI – A common abbreviation for lesbian, gay, bisexual, transgender, queer and intersexed community.
Lesbian – Term used to describe female-identified people attracted romantically, erotically, and/or emotionally to other female-identified people. The term lesbian is derived from the name of the Greek island of Lesbos and as such is sometimes considered a Eurocentric category that does not necessarily represent the identities of African-Americans and other non-European ethnic groups. This being said, individual female-identified people from diverse ethnic groups, including African-Americans, embrace the term ‘lesbian’ as an identity label.
Gay – 1. Term used in some cultural settings to represent males who are attracted to males in a romantic, erotic and/or emotional sense. Not all men who engage in “homosexual behavior” identify as gay, and as such this label should be used with caution. 2. Term used to refer to the LGBTQI community as a whole, or as an individual identity label for anyone who does not identify as heterosexual.
Bisexual – A person emotionally, physically, and/or sexually attracted to males/men and females/women. This attraction does not have to be equally split between genders and there may be a preference for one gender over others.
Transgender – A person who lives as a member of a gender other than that expected based on anatomical sex. Sexual orientation varies and is not dependent on gender identity.
Queer – 1. An umbrella term which embraces a matrix of sexual preferences, orientations, and habits of the not-exclusively- heterosexual-and-monogamous majority. Queer includes lesbians, gay men, bisexuals, transpeople, intersex persons. 2. A reclaimed word that was formerly used solely as a slur but that has been semantically overturned by members of the maligned group, who use it as a term of defiant pride. ‘Queer’ is an example of a word undergoing this process. For decades ‘queer’ was used solely as a derogatory adjective for gays and lesbians, but in the 1980s the term began to be used by gay and lesbian activists as a term of self-identification. Eventually, it came to be used as an umbrella term that included gay men, lesbians, bisexuals, and transgendered people. Nevertheless, a sizable percentage of people to whom this term might apply still hold ‘queer’ to be a hateful insult, and its use by heterosexuals is often considered offensive. Similarly, other reclaimed words are usually offensive to the in-group when used by outsiders, so extreme caution must be taken concerning their use when one is not a member of the group.
Intersexed Person—Someone whose sex a doctor has a difficult time categorizing as either male or female. A person whose combination of chromosomes, gonads, hormones, internal sex organs, gonads, and/or genitals differs from one of the two expected patterns.
Gender Identity – A person’s sense of being masculine, feminine, or other gendered.
Sexual Orientation – The desire for intimate emotional and/or sexual relationships with people of the same gender/sex, another gender/sex, or multiple genders/sexes.
Heterosexism – Prejudice against individuals and groups who display nonheterosexual behaviors or identities, combined with the majority power to impose such prejudice. Usually used to the advantage of the group in power. Any attitude, action, or practice – backed by institutional power – that subordinates people because of their sexual orientation.
Heteronormativity—The assumption, in individuals or in institutions, that everyone is heterosexual, and that heterosexuality is superior to homosexuality and bisexuality. Heterosexism – Prejudice against individuals and groups who display non-heterosexual behaviors or identities, combined with the majority power to impose such prejudice. Usually used to the advantage of the group in power. Any attitude, action, or practice – backed by institutional power – that subordinates people because of their sexual orientation.
Homophobia – The irrational fear or hatred of homosexuals, homosexuality, or any behaviour or belief that does not conform to rigid sex role stereotypes. It is this fear that enforces sexism as well as heterosexism.
Transphobia – The irrational fear of those who are gender variant and/or the inability to deal with gender ambiguity
Coming Out – May refer to the process by which one accepts one’s own sexuality, gender identity, or status as an intersexed person (to “come out” to oneself). May also refer to the process by which one shares one’s sexuality, gender identity, or intersexed status with others (to “come out” to friends, etc.). Page 3 This can be a continual, life-long process for homosexual, bisexual, transgendered, and intersexed individuals.