Connect with us

Opinions

The road to decriminalization in Sri Lanka

Country’s Supreme Court this month ruled in favor of MP’s bill

Published

on

(Photo by rarrarorro/Bigstock)

Thanks to its colonial legacy, Sri Lanka is one of 67 countries in the world that still criminalizes same-sex sexual relations among consenting adults. Sections 365 and 365A of Sri Lanka’s Penal Code state that “carnal intercourse against the order of nature” (in other words, any type of sex that is considered unnatural) and “acts of gross indecency” are criminal offenses punishable by law, carrying a sentence of up to 10 years. While they do not specify that these offenses pertain to same-sex sexual relations anymore, they are most often used against the lesbian, gay, bisexual, transgender, intersex and queer/questioning (LGBTIQ) community. In addition, the Vagrancy Law and Section 399 of the Penal Code regarding “cheating by personation” (referring to impersonation) are also used against the LGBTIQ community in Sri Lanka, particularly against transgender individuals.

For eons, criminalization has led to arbitrary arrests, inhumane forceful anal examinations, degrading treatment etc. It has sanctioned discrimination, stigmatization, denial of basic human rights, harassment and violence towards LGBTIQ community by state officials in the criminal justice system and unfortunately by the wider public as well. This has led to social and economic marginalization and to the exclusion of LGBTIQ individuals and groups from vital services. EQUAL GROUND, the oldest and one of the truly diverse organizations in Sri Lanka, has been fighting relentlessly for over 19 years to decriminalize consenting same-sex relationships. This has been a roller coaster ride where EQUAL GROUND encountered political and social backlash, tackled online and offline threats, hate comments etc., but it has never given up. As they say, “Rome wasn’t built in a day, but they were laying bricks every hour.” Rather, the attacks and barriers motivated EQUAL GROUND to stand firmly and continue fighting the good fight. Due to its relentless hard work and support from allies, the international community and like-minded organizations, finally we are seeing decriminalization firmly on the table — something which seemed so far-fetched only a couple of years back. 

As mentioned earlier, the criminalization of same-sex sexual conduct in Sri Lanka has its origins in 19th century British colonial law. Introduced in 1883, section 365A originally criminalized “any act of gross indecency” between males. In 1995, when reforming the Penal Code — due to a private members bill in 1995 — the government ignored recommendations to repeal the provision and instead amended Section 365A from “male person” to “person,” bringing lesbian and bisexual women within its remit. Consequently, lesbian, bisexual, transgender and queer (LBTQ) women in Sri Lanka are extremely vulnerable to harassment, violence and discrimination by State actors and by society at large. At the same time, it perpetuates and reinforces the widespread societal stigma against LBTQ women, giving license to harassment and discrimination in employment, housing, education, health care and family relations, to name a few. Realizing and experiencing such discriminatory treatment, in 2018 Rosanna Flamer-Caldera, executive director of EQUAL GROUND (with the support of Human Dignity Trust) challenged the criminalization of lesbians and bisexual women in Sri Lanka by submitting a communication to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) under the Optional Protocol in August 2018. This move was the first steppingstone towards initiating the process and talk of decriminalization. This ground-breaking case was the first time CEDAW considered an individual complaint relating specifically to the criminalization of lesbian and bisexual women. Flamer-Caldera sought a wide range of remedies, beginning with the repeal of criminalization of same-sex consensual relationships between adult women which is contrary to the Convention. She also sought amongst other things, the wider decriminalization 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. 

After years of struggle, finally in February 2022, the CEDAW committee ruled the judgment in Flamer-Caldera’s favor. The committee decided that Rosanna Flamer-Caldera’s rights had been violated by the criminalization of same-sex sexual intimacy in Sri Lanka. Moreover, the CEDAW committee urged the government to decriminalize same-sex sexual relations.

In August 2022 Parliamentarian and lawyer Premanath C. Dolawatte presented to Parliament a Private Member’s Bill to amend Sections 365 and 365A of the Penal Code of Sri Lanka with the aim of ensuring the rights of the LGBTIQ community. The bill was subsequently handed over to President Ranil Wickremesinghe where he stated that the government will not oppose the amendment. Dolawatte, at a public forum inclusive of major political parties including the Samagi Jana Balawegaya and Ceylon Workers’ Congress, also stated that he was hopeful that a majority of MPs in the House would support his bill and join the effort to protect the rights of the LGBTIQ community. A revised version of this gill was gazetted and presented to Parliament in March and April 2023 respectively. 

In September 2022, EQUAL GROUND was invited by MP Buddhika Pathirana (SJB) to put together a discussion on LGBTIQ inclusion, following which a proposal was made and accepted to (a) the Samagi Jana Balawegaya’s (SJB) National Reforms Committee to incorporate LGBTIQ rights in their party manifesto, (b) sensitize SJB parliamentarians and politicians on sexual orientation and/or gender identities/expressions (SOGIE) issues. This discussion was attended by LGBTIQ activists, lawyers, healthcare professionals, business personnel as well as politicians from the SJB party including the party leader Mr. Sajith Premadasa, who is also the current leader of the opposition.

In December 2022, EQUAL GROUND submitted the Universal Periodic Review (UPR) report (4th cycle), in collaboration with the Center for International Human Rights of Northwestern Pritzker School of Law in Chicago. In this joint submission, as remedial measures EQUAL GROUND sought to decriminalize consensual same-sex sexual conduct by repealing Penal Code Section 365 and 365A and ensuring that Penal Code Section 399 and the Vagrants Ordinance are not misused to target LGBTIQ persons. In February 2023, at the U.N. Human Rights Council’s Universal Periodic Review Working Group session (42nd session), the U.S., the U.K., Canada, New Zealand and Norway, among others, urged Sri Lanka to decriminalize same-sex relationships. Responding to all the recommendations, Minister of Foreign Affairs, President’s Counsel (PC) M.U.M. Ali Sabry assured that the government would work towards decriminalization, however same-sex marriage would not be legalized. Referring to the Private Member’s Bill, he stated that the government will support its position of decriminalizing same-sex relationships.

A petition was presented to the Supreme Court in April this year challenging the constitutionality of the bill to amend the Penal Code. After hearing more than a dozen petitions on both sides of the argument, the Supreme Court has determined that a private member’s bill seeking the decriminalization of homosexuality is not inconsistent with the Constitution. The decision is seen as a historic development that has created hope towards real change. Activists will still have to lobby for support from the 225 parliamentarians to push forward the proposed legislation through Parliament; but it has opened the door of an inclusive and equal future where everybody will be able to enjoy their basic rights regardless of their sex, gender, sexual orientation, gender identity etc.

Both the president of Sri Lanka and the joint opposition has stated they will not oppose the bill. The next steps for it to eventually become legislation, is a vote with a simple majority at Parliament to see this through.

This Supreme Court decision in early May 2023 is major for the community in terms of any kind of progress they have seen over the last few decades. 

On several occasions, the international community has urged the government to decriminalize consensual same-sex sexual conduct. For instance, in 2021 the European Union Parliament adopted a resolution with regard to the withdrawal of Sri Lanka’s GSP+ status given their concern over Sections 365 and 365A of the Penal Code that criminalize individuals with diverse sexual orientations and gender identities. Unfortunately, the EU dropped this condition from at the last moment granting GSP+ status to Sri Lanka. It was a severe blow to the LGBTIQ community and EQUAL GROUND who had lobbied at high levels within the EU and had been assured by the EU that indeed decriminalization would be an important condition of Sri Lanka’s GSP+ status. 

LGBTIQ rights, from 2021 to until now, has seen some positive changes developing with national laws and policies. 

According to EQUAL GROUND’s mapping study in 2021, approximately 12 percent of the Sri Lankan population identify themselves as LGBTIQ. Continuing to preserve Victorian, homophobic laws that penalizes individuals for who they are and/or for choosing a same-sex partner, violates their human rights as citizens of this country and drives the community underground to live in constant fear and in the shadows. Therefore, in order for Sri Lanka to be consistent with international standards of human dignity and rights, these laws can no longer be viewed with the moral standards that existed during the time of their creation.  Rather, they have to be viewed in line with modern-day community standards based on the principles of human dignity and respect.

Rosanna Flamer-Caldera is the executive director of EQUAL GROUND.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Opinions

A confused Biden and a deranged Trump

Sad state of affairs after first presidential debate

Published

on

Former President Donald Trump and President Joe Biden debate on CNN on Jun 27, 2024. (Screen captures via CNN)

Joe Biden was clearly ready with some facts for this debate, the sad part is he couldn’t articulate them. He sounded raspy, and lost track of what he was saying in the first few minutes of the debate. He did get better as the debate progressed but came off sounding and looking like an old man. For those of us hoping he would sound like he did at the State of the Union, or the speech he gave on anti-Semitism, it was a huge disappointment. 

So, where his campaign goes from here is anyone’s guess. Behind the scenes some Democrats are calling for him to step down as the candidate. But that is much more difficult than it seems at this time. And then, will there be a fight for who the candidate will be. Will it automatically be Kamala Harris, or will it be someone else?  So many unanswered questions over the next couple of weeks.

The only positive take-away for Democrats from the debate was how deranged Donald Trump sounded. He refused to deal with any issue, refused to say he would accept the results of this election, refused to acknowledge climate change, or Jan. 6, and kept saying how the states should control the issue of abortion, and women’s health. Every one of these things should be frightening to so many people. It is clear if Trump is elected, we will have a dictator in the White House, who believes Hitler did good things. His election is scary for women, young people, Black Americans, and the LGBTQ community. If states control issues related to any of these groups, they are screwed. 

One of the very few good lines Biden got across was when he said 40 high-level Trump appointees, members of the Cabinet, and his vice president, have refused to endorse him as they know him best. People need to take their word for how bad he will be should he be reelected. Trump kept talking nonsense and it was hard to keep up with the lies. The moderators didn’t call him on any of it, but CNN has said before the debate they wouldn’t. But then Biden missed so many chances to call him on the garbage he was spouting. I kept hoping he would turn to him and say clearly, “You can’t believe all the BS you are spouting. You sound like a deranged six-year-old and someone who would take our country down the tubes.”

Now I accept the fact Biden speaks more slowly and softly. Though after the debate they said he had a cold. He could have said that at the beginning of the debate, if it was true, and explained his voice to the audience. And while we know he has a stutter, it seemed so much worse during the debate than it normally does. Was it nerves, maybe, but difficult nonetheless for him, and for those listening. We must have compassion for anyone with any kind of a disability. Then one had to ask, was he over-prepared for this debate? Was he so scripted he didn’t dare say anything off script. When he did, they got into this thing about golf handicaps and both sounded so childish. 

Biden did manage to talk about the things he has done, and the successes of his first administration. There have been many. First bringing the country successfully out of the pandemic. He spoke about unemployment being the lowest it has been in decades, and the more than 15 million jobs created since he took office. He was honest about inflation and the fact that not all the economic successes the country is having are trickling down to every American. He understands that rents are high, and grocery bills are still too high. He made clear he wants to raise taxes on the rich and Trump wants to lower them. He had a plan to ensure Social Security would stay solvent, Trump had nothing as usual. 

Finally, I was surprised that in his two-minute closing, Biden didn’t go back to the issues of abortion, climate change, and saving democracy. Did his debate prep team tell him not to? If so, they were wrong. Whether it remains Joe Biden on the ticket, or is someone else, I am 1,000% committed to do everything I can to see Democrats are elected across the board. It is clear to me, and should be to all decent people, electing Donald Trump and his MAGA Republicans, will be the end of our country as we know it today. 

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

Continue Reading

Opinions

As fewer anti-LGBTQ bills pass, the fight gets harder

A growing indifference to suffering that is baked into the legal system

Published

on

(Photo by Proxima Studio/Bigstock)

In recent years, advocates have faced an unprecedented avalanche of anti-LGBTQ legislation each spring. In 2024, however, the onslaught seems to have faltered somewhat. While hundreds of anti-LGBTQ bills were once again introduced, as many state legislative sessions draw to a close, fewer bills have been enacted into law.

While that may seem like cause for celebration, it’s also cause for concern.

To be sure, the slowdown in anti-LGBTQ legislation is welcome. Beginning in 2020, legislation targeting transgender rights in particular had sailed through state legislatures, with the number and scope of hostile bills increasing each year. Unlike earlier years when one or two prominent anti-LGBTQ bills triggered a national pushback that often chastened lawmakers, hundreds of bills have been introduced during legislative sessions in the last four years, often with little debate or scrutiny, and dozens of them zealously passed into law.

Those bills do real damage when they are enacted, cutting LGBTQ people off from material benefits like health care and domestic violence sheltersrecognition by the state, and equal participation in public life. Even when they fail to become law, they have devastating effects on the mental health of LGBTQ people, throwing their lives into disarray and sapping valuable time and energy from LGBTQ communities. This especially affects children, with more than 90 percent of LGBTQ young people in a recent Trevor Project survey reporting that politics had negatively affected their personal well-being.

But the recent slowdown, far from being a positive signal, may well reflect a growing indifference to the suffering of LGBTQ people that is now baked into the political and legal system. Opponents of LGBTQ rights have normalized hostile rhetoric and enacted draconian laws that seemed unthinkable just a couple of years ago, and even ardent supporters of equality find themselves unsure how they might reverse state laws that unapologetically strip away LGBTQ rights.

If anything, it has become apparent that the damage that has been done since 2020 will most likely reverberate for a generation, and the past year shows that restoring and advancing LGBTQ rights will be a painstaking endeavor.

And one sobering reason for the slowing pace of anti-LGBTQ legislation is that, at this point, many conservative states have already stripped away important rights, particularly for transgender children. As of 2024, half of the states in the U.S. prohibit transgender girls from playing school sports, and half have banned or criminalized at least some forms of medically indicated healthcare.

Put differently, lawmakers aren’t targeting some rights this year because they’ve already eviscerated them.

Yet even as the pace of legislation slows, critical rights continue to be stripped away. According to the ACLU, more than 30 anti-LGBTQ bills have been enacted in 2024 — fewer than the 84 enacted in 2023, but still far too many. Among them, Utah and Mississippi restricted transgender people from accessing bathrooms and locker rooms in public schools and other government buildings.

Lawmakers in Ohio overrode the governor’s veto to ban transgender children from receiving gender-affirming care or playing sports consistent with their gender identity. South Carolina and Wyoming similarly enacted blanket bans preventing transgender children from accessing gender-affirming care.

Many of the bills that have been introduced this year sought to expand existing anti-LGBTQ legislation in new ways. Alabama, for example, successfully expanded its bathroom ban from K-12 schools to colleges and universities. Even those that didn’t pass are in many cases likely to be reintroduced after the 2024 election, particularly if anti-LGBTQ lawmakers increase their showing in state legislatures or if governors who are supportive of LGBTQ rights are no longer positioned to veto hostile legislation.

In many states with anti-LGBTQ legislation, administrative and regulatory agencies are being used to curtail LGBTQ rights even further. Florida offers an instructive example. Even after years of anti-LGBTQ legislation, the Florida Department of Highway Safety and Motor Vehicles took things a step further within its mandate, and decided in 2024 that transgender people could no longer update the gender marker on their driver’s licenses. This echoes recent regulatory crackdowns elsewhere in the United States, from the Texas Department of Family and Protective Services investigating parental support for transgender children as child abuse to school boards across the country stripping away lifesaving resources in schools.

And while many believed that courts would provide a bulwark against discriminatory legislation and regulations, in part because of strong Supreme Court precedent to suggest that anti-transgender discrimination is a form of sex discrimination, that has not consistently been the case. Trial courts have largely found in favor of transgender litigants, criticizing the insufficient justification and discriminatory purpose of anti-transgender laws, but some appellate courts have nevertheless allowed the laws to take effect.

Perhaps most alarming, there are advocates and lawmakers who, if in a position to do so, are eager to carry out an even harsher attack on LGBTQ rights. Project 2025, which a group of conservative organizations has drafted as a roadmap for a second Trump administration, promises an even more draconian attack on LGBTQ rights. This would include rolling back existing nondiscrimination protections for LGBTQ people, reinstating the transgender military ban, and codifying state restrictions on transgender rights at the federal level, in addition to limiting recognition of same-sex relationships.

The anti-LGBTQ backlash may be waning in certain respects — but in other ways, it has only just begun. As we celebrate Pride, LGBTQ people and their allies should be mindful of the need to support those communities whose rights are being eroded, invest in transgender rights organizing, demand that lawmakers prioritize LGBTQ rights, and fight for the independent institutions and protections for basic freedoms that are essential to hold power to account.

Ryan Thoreson is a specialist on LGBTQ rights at Human Rights Watch and teaches at the University of Cincinnati College of Law.

Continue Reading

Commentary

LGBTQ people deserve freedom, a sense of home, and belonging

Latoya Nugent found refuge in Canada after fleeing Jamaica

Published

on

Latoya Nugent, center, at the March for LGBTQ+ Rights in Toronto on May 16, 2024. (Photo courtesy of Rainbow Railroad)

Seven years ago, my fight for queer liberation in notoriously homophobic Jamaica culminated in a violent and brutal unlawful arrest and detention. This was the peak of decades of persecution due to my sexual orientation and work as a queer human rights defender and activist. It completely broke me and silenced me. I suffered severe emotional trauma, from which I am still recovering years later. 

Following that life-threatening arrest, I became a shell of who I once was. I cut off communication with my community for several years, unable to face my fear of the police and the hostility of the world around me. 

In 2022, I was one of the 9,591 at-risk LGBTQI+ people who reached out to Rainbow Railroad for help. Through the organization’s Emergency Travel Support (ETS) program, which relocates at-risk LGBTQI+ people and helps them make asylum claims in countries like the U.S., I resettled in Canada where I’ve been living safely with dignity and pride. 

This Pride Month, I’m reflecting on what it means to be safe. Who has access to safety and why others are excluded from it. What is our collective role and responsibility in expanding safety for our queer and trans communities, especially those in the over 60 countries that criminalize LGBTQI+ people? 

Safety means different things to different people depending on our experiences and journeys. For me, it’s the difference between suffering and thriving, feeling worthless and worthy, and feeling hopeless and hopeful. It is the difference between displacement and belonging. 

Rainbow Railroad recently released a report that examines the state of global LGBTQI+ persecution, drawing on data from 15,352 help requests spanning 100+ countries. This report is significant for several reasons, chief among them is the reality that no other organization or government captures the breadth and depth of data on LGBTQI+ forced displacement, perpetuating the invisibility of queer individuals in humanitarian responses. The report is an important contribution to the discourse on the intersection of queer identity, LGBTQI+ persecution, forced displacement, and humanitarian protection systems. 

Of all the data and insights uncovered in the report, I was most struck by one statistic — 91 percent of at-risk LGBTQI+ individuals relocated through the ETS program reported an improved sense of personal safety. This statistic is particularly personal to me because ETS was the only relocation option accessible to me in 2022 when I reached out to Rainbow Railroad for help. 

I am in that 91 percent because I am now thriving. I feel worthy. I am hopeful about life. And I belong. 

Today, among the 120 million forcibly displaced people around the world, queer and trans individuals face compounded complications from homophobia and transphobia while trying to access protection and safety. And while the anti-gender movement continues to swell in some states, I firmly believe that the U.S. remains a global leader in refugee resettlement — which is why the U.S. government must uphold its international obligations and reverse its recent executive order that imposes severe restrictions on the right to seek asylum. 

Queer and trans individuals deserve freedom, a sense of home, and belonging — realities that flourish only when rooted in the bedrock of safety. 

There is a lot more work to be done. It’s challenging. It’s complex. It’s costly. But I have experienced firsthand what the transformative impact of Rainbow Railroad’s work has on someone’s life — that ability to lift people out of danger into safety is something worth celebrating this Pride. 

Latoya Nugent is the head of engagement for Rainbow Railroad.

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular