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Sri Lanka's Criminalization of Lesbian is Discrimination, UN Body finds

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Neela Ghoshal

Repealing laws that prohibit consensual relationships between people of the same sex “is essential to prevent and protect against violence, discrimination and harmful gender stereotypes.” This clarion call to decriminalize same-sex relations is one of the striking pronouncements in a groundbreaking March 23 decision in which the United Nations Committee for the Elimination of all Forms of Discrimination Against Women (CEDAW) found the government of Sri Lanka in violation of its obligations under international law to prevent discrimination against women.

Rosanna Flamer-Caldera, a Sri Lankan lesbian and longtime activist in the struggle for LGBTI equality, brought the case before the CEDAW, which interprets the treaty obligations of states such as Sri Lanka that have ratified the Convention on the Elimination of All Forms of Discrimination against Women. Sri Lanka inherited from its former British colonizer an 1883 Penal Code prohibiting “carnal intercourse against the order of nature” and “gross indecency between males.” In a grotesque gesture toward “equalizing” the language of the law, Sri Lanka’s parliament amended section 365A of the penal code in 1995 so that it referred to “gross indecency between persons,” replacing “males” in the colonial text. 

Flamer-Caldera’s complaint, supported by the non-governmental organization Human Dignity Trust, alleged that criminalization of same-sex conduct created “significant barriers to accessing justice as well as a culture where discrimination, harassment and violence against lesbians has been allowed to flourish.” The complaint cited discrimination, harassment and threats of violence that Flamer-Caldera experienced personally “based on her sexuality and her non-conformity with stereotypical roles and appearances for women,” and asserted that criminalization of sex between women “exacerbates gender-based violence against women, including at the hands of their community and family.”

Sri Lanka’s “unnatural offenses” laws violated the Convention, argued Flamer-Caldera, by criminalizing sexual activity that does not conform to gender stereotypes, “legitimizing societal prejudice and gender stereotypes and roles,” and restricting women’s autonomy and choice. Article 5 requires states to take measures to achieve “the elimination of prejudices and customary and all other practices which are based on… stereotyped roles for men and women,” while article 16 protects autonomy and choice.

On March 23, capping off years of sustained advocacy by various Sri Lankan and international LGBTIQ rights organizations before international treaty bodies, the CEDAW ruled in Flamer-Caldera’s favor. In 2014, OutRight International submitted a shadow report to the UN Human Rights Committee documenting discrimination against lesbians, bisexual women and transgender people. The government responded by asserting before the Committee that LGBT people faced no discrimination in Sri Lanka and that “laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional” - while refusing to dismantle blatantly discriminatory provisions of the Penal Code. In 2017, the Women and Media Collective in Sri Lanka, supported by OutRight, issued a shadow report to CEDAW articulating how persistent criminalization reinforces discrimination and prevents access to equal treatment under the law. That submission also highlighted the findings of a 2014 report by Women’s Support Group, another Sri Lankan organization that interviewed 33 lesbian, bisexual and transgender Sri Lankan women between 2010 and 2012. 26 of them reported having experienced physical violence based on their sexual orientation or gender identity or by intimate partners, and all 33 reported having experienced emotional violence on these grounds. Almost all interviewees said the violence had negatively impacted their mental health. 11 had attempted suicide. 

When states criminalize same-sex relations between women, they signal to society that queer women are pariahs, social outcasts who do not merit the protection of the law. Institutionalized discrimination against queer women can trigger and be used to justify violence. In contexts that criminalize them, lesbian and bisexual survivors of gender-based violence have little access to recourse: they are criminals in the eyes of the law. Due to conflagration by state officials of sexual orientation, gender identity and sex characteristics, transgender and in some cases intersex people are also effectively criminalized and denied access to justice.

Enforcement of stereotypical gender roles harms anyone who expresses sexual or gender diversity. Sri Lanka has at times rigorously enforced its unnatural offenses laws, mostly against gay and bisexual men and trans women, and police have exploited the vulnerability of LGBTIQ who challenge gender norms, subjecting them to extortion and physical and sexual violence. Sri Lanka has also resorted to the use of forced anal examinations in prosecutions for consensual same-sex conduct; these exams are, in themselves, a form of gender-based violence. 

Given this repressive context, the CEDAW’s findings, that Sri Lanka had subjected Flamer-Caldera to “direct and indirect discrimination emanating from the Penal Code of 1883 as amended,” breaching her right to non-discrimination under article 2 of the Convention along with article 5, article 16, and article 7(c) on women’s rights “to participate in non-governmental organizations and associations concerned with the public and political life of the country,” are momentous. The CEDAW called on Sri Lanka to take immediate action to end threats and harassment against Flamer-Caldera and to ensure that her organization, Equal Ground, can operate freely.

Importantly for all LGBTIQ Sri Lankans, the CEDAW also called on Sri Lanka to decriminalize consensual same-sex sexual conduct between women and to provide effective protection against gender-based violence, including by adopting comprehensive legislation prohibiting discrimination against lesbian, bisexual, transgender and intersex women. While jurisprudence stemming from other UN treaty bodies, including the Human Rights Committee that interprets the International Covenant on Civil and Political Rights (ICCPR), has long made clear that criminalization of same-sex relations violates the rights to privacy and non-discrimination, it is the first time that the CEDAW has ruled that such laws specifically violate women’s rights to non-discrimination on the basis of gender, and therefore contravene the Convention on the Elimination of All Forms of Discrimination against Women. 

The ruling compels Sri Lanka to provide a written response to the CEDAW within six months as to any actions taken in the light of the ruling and recommendations, providing an opportunity for Sri Lanka to reform its laws. It also has symbolic importance: states can no longer vaunt their efforts to end discrimination against women while they continue to criminalize women’s same-sex relations.

The verdict is clear: compulsory heterosexuality, enforced through legislation and policing as well as unchecked social stigma, violates women’s rights under international law. Sri Lanka should immediately move to repeal Sections 365 and 365(a) of the penal code, and the other 67 states that criminalize consensual same-sex relations should follow suit.

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