LGBT rights in Sri Lanka

Article 365 of the Sri Lankan Penal Code that criminalizes same-sex sexual acts remains on the books but has been ruled unenforceable by the Supreme Court of Sri Lanka[2][3][4] Sri Lanka has implemented anti-discrimination laws for homosexuals as part of its constitution and human rights action plan.[5] It has recognized transgender people for a very long time and has been making it easier for transgender people to identify and transition in recent years.[6][7] Concepts similar to the third gender found in India and South East Asia also exist in Sri Lanka.[8]

LGBT rights in Sri Lanka
StatusIllegal under Article 365A Penalty: Up to 10 years in prison with fines. But ruled unenforceable by the Supreme Court of Sri Lanka[1]
Gender identityIt is possible to legally change one's gender, but health services facilitating gender change are not sufficiently found throughout the country.
MilitaryNo
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

However, many sexual minorities do not fight against such discrimination, including police harassment, as they may remain closeted due to homophobia they face in their personal lives, and this might lead them to hold a valid fear of being outed during the anti-discrimination process.[9] Sexual assault by members of the police and government is common .[10]

Overview
See also: Lesbianism in Sri Lanka

The current legal framework of Sri Lanka[1] mostly derives from the European/Christian constructs[11] was imported into the island during the colonial era,[12] most of it being predominantly British law[13] and the prior colonial Roman-Dutch law.[14] The most famous of these discriminatory laws[15] is the now dormant (and variously reported as decriminalized)[2] Section 365 that criminalizes homosexual sex,[16] but other laws against gender impersonation[17] and pimping[18] can also be considered to discriminate against LGBT people.[19] Further problems with the colonial legal framework include the lack of protections and supports for the sexual minority community, including the lack of specific wording fighting discrimination against sexual minorities[20] nor the recognition of transgender and third gender concepts[21] (who have been technically discriminated against through the Vargrants Ordinance).[22] The Supreme Court and the various Governments of Sri Lanka have however attempted to remedy this situation[23] by including sexual minorities within generic anti-discrimination clauses[24] and attempting to set dormant a variety of laws[25] (though the colonial legal code does not provide the Supreme Court with the power to create or repeal law).[26]

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Overview
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The political parties of Sri Lanka are formed through collations of numerous smaller parties[27] reminiscent of the party politics in former colonial power Netherlands,[28][29] and hence confusion and constant movement can be found in terms of their stances to homosexuality. Both the conservative government of Srisena and the socialist government of Rajapaska have stated that discrimination against sexual minorities is unconstitutional and that Section 365 cannot be legally applied to consensual homosexual sex,[30] but in contradiction to this the socialist collation refused to allow the conservative government's attempted deletion of Section 365 from legal texts.[31] A number of non-governmental organizations,[32] lawmakers and religious organizations[33][34] have come out in favor of sexual minorities, and openly homosexual gay[35] and transgender lawmakers[36] can be found in the parliament and the government. A variety of public institutions including the health service[37] and the police[38] have been introducing internal commitments to improve living conditions for sexual minorities.

Sri Lankan societies generally takes a modestly unobtrusive and traditionalist view of homosexuality and certain traditions exist for the promotion of transgenders (albeit third gender appears to have escaped the island despite it having roots historically within Sri Lankan culture) and consequently these laws have mostly been applied loosely (if ever) and discrimination by police (and the like) is often associated with corruption and/or attitudes towards sexual promiscuity which are applied to heterosexuals as well. A number of issues remain untouched by general discussion including that of the status of sexual minorities within the military service, and intersex rights[39] have mostly escaped both mainstream discussion and discussion by LGBT lobbies. Other laws and legalities that can negatively affect sexual minorities are more widely discussion in the Sexual minorities in Sri Lanka article.

In 1994, Sherman de Rose set up Companions on a Journey (CoJ), the first LGBT support group in Sri Lanaka.[40] The Women's Support Group split off from CoJ in 1999, forming a separate organisation for lesbian, bisexual and transgender women.[41] Equal Ground was then set up as a LGBTI group.[42]

Legality of same-sex sexual acts

Section 365 and 365A
See also: Article 365 of the Sri Lankan Penal Code

These sections of the Penal Code refer to unnatural offences and acts of gross indecency. They state that the act should be "punished with rigorous imprisonment for a term not more than 10 years with a fine.[1] As of 2019 Global News claims that the country is not known to have convicted anyone under those provisions since 1948,[43][44] but in 1995, the section was amended slightly to expressly prohibit "gross indecency" no matter the gender of the participants.[45]

In November 2017, Deputy Solicitor General Nerin Pulle stated that the government would move to decriminalize same-sex sexual activity.[46] The country's constitution does not provide the Supreme Court the powers to completely expel a law from the books.[47][2] An attempt by the government to include its repeal into the human rights action plan was prevented by opposition from the United People's Freedom Alliance.

Supreme Court

The Supreme Court of Sri Lanka has recognized that "the contemporary thinking, that consensual sex between people of the same sex should not be policed by the state nor should it be grounds for criminalisation" and that homosexuality cannot be criminalised.[48]

Government

Both the socialist government of Rajapaska and the conservative government of Sirisena have stated " that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional".[49]

Section 399

This section criminalized gender impersonation and is often used against transgender people. It can used in situations where a person has converted to another gender yet bears a different gender on their documentation.

Section 07 / 1841 Vagrants Ordinance

This act criminalizes soliciting and acts of indecency in public places. It has been used against sex workers and sexual minorities. A maximum term of six months and a fine of 100 rupees is imposed as punishment.[50]

Recognition of same-sex relationships

Sri Lankan family law does not recognize same-sex marriages or same-sex civil unions.

Discrimination protections

Constitutional Protections

The Government of Sri Lanka claimed to the United Nations Human Rights Committee on 7–8 October 2014 that they think sexual minorities should be protected under existing generic anti-discrimination laws provided in the Constitution.[51] The Government of Sri Lanka stated that such protections were "'implicit' in the Sri Lankan constitution and that the Government has not written a law giving 'explicit' rights yet.[52]

Discrimination against sexual minorities still remains a problem. Several lawyers and charities have called for specific wording in the constitution stating that discrimination against sexual minorities is illegal.[53]

Law

In 2017, the Government also decided to update their Human Rights Action Plan with an addendum that bans discrimination against someone based on his or her sexual orientation. However, no laws were put in place following this statement.[54][55] Both the socialist government of Rajapaska and the conservative government of Sirisena have stated " that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional".[49]

Gender Identity and expression

Gender dysphoria is classified as a mental health problem.[56]

Third Gender

The concept of third gender is not recognized under Sri Lankan law.[57]

Blood Donation

The National Blood Transfusion Service bans people who engage in risk behavior from donating blood. It classifies homosexual sex as a risk behavior, along with unrelated behaviors such drug use and having more than one sexual partner, so consequently LGBT who engage in homosexual sex are banned from donating blood through the National Blood Transfusion Services (NBTS).[58]

Summary table
Legality of same-sex sexual activity Though ruled unenforceable by the Supreme Court of Sri Lanka, Article 365 of the Sri Lankan Penal Code criminalizes "carnal intercourse against the order of nature" with penalties of 10 years in prison and fines.
Anti-discrimination laws Y
Marriage between two same sex persons
Recognition of same sex couples
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
The right to change legal gender Y
Recognition of third gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
Removal of LGBT orientation as an mental illness Y
Banning of gay conversion therapy
MSMs allowed to donate blood [58]
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See also

References
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