Pride in Diversity: Battling Harassment Against the LGBTQIA Community.

(Phase 2 — Project Spotlight)
Compiled by Team Law and Humanities

The vestiges of colonialism left Sri Lanka with evil. The institutionalized criminalization of non-normative sexual orientation and gender identities resulted in a fraction of the population being victimised by the very legal system which is designed to protect and uphold the rights of individuals. These are the “archaic British Laws that were introduced in 1883, which our governments have clung on to for over 70 years of independence” (Equal Grounds, as cited by Gonzalez). When legal provisions themselves vilify non-binary sexual orientation and gender nonconformity, it is no surprise that the society at large followed suit and began to marginalize, harass and discriminate against the community. The appalling impact of these laws is such that their existence legitimizes “speech and conduct well beyond the acts specifically prohibited in the law” whereby “even without enforcement, the laws act to suppress [LGBTIQ persons’] identities and relationships” (Mendis and Deshapriya). This article will briefly look at the existing discriminatory laws against the LGBTQIA community, then proceed to look at issue areas i.e., harassment happening at the hands of the authorities and the public, afterwards, the article will look at statements made by officials as well as the public opinion with regards to the existing discriminatory legal framework and finally propose ways in which LGBTQIA rights can be legitimized.

According to Victorian-era jurisprudence, homosexuality is a “mental disease.” This was a time when homosexuality was considered a crime, and people were treated as though they had a mental disorder. Regrettably, Even in the twenty-first century, these Victorian laws continue to discriminate against LGBTQIA individuals. Even though numerous sources indicate that these anti-LGBTQIA laws are rarely enforced (Country Reports on Human Rights Practices for 2015 Sri Lanka ), these laws are often used to excuse discriminatory LGBTQIA sentiments and behaviour (Country Reports on Human Rights Practices for 2018 Sri Lanka).

Prevailing Discriminatory LGBTQIA Laws in Sri Lanka.

Section 365 of the Penal Code: Punishes “carnal relations against the natural order” with up to ten years in prison and a fine. It is solely applicable to male-male intercourse.

Section 365 A of the Penal Code: Forbids acts of “gross indecency,” as well as the procurement or attempted procurement of such acts, and imposes a maximum sentence of two years in prison and/or a fine. This provision applies to both male and female acts.

Section 399 of the Penal Code: Criminalizes cheating “by pretending to be some other person”, with a penalty of up to three years imprisonment and a possible fine. This provision can be used to target transgender people.

Vagrants Ordinance (1842): Used to intimidate, extort, detain and interrogate individuals whose appearance do not conform to gender norms.

Police harassment, arrests, and detention.

When the authorities themselves are the perpetrator, it is difficult to seek redress. There are many unreported cases where LGBTQIA persons have been harassed by the police. There has either been a misuse of powers or a manipulation of the existing legal framework. A study done by “Outright International’’ which was published in 2016 revealed that “13 out of the 33 interviewees had experienced violence from state officials, mainly the security forces and the police’’ (United Nations High Commissioner for Refugees, 2018). The “2018 USSD report” revealed that although “prosecutions are rare”, police had “used the threat of arrest to assault, harass, and sexually and monetarily extort LGBTI individuals’’ (ibid.). This is counterproductive to the job description of a police officer. The existing laws not only fail to protect gender non-conforming persons but also legitimizes harassment and discriminatory treatment against them. How can the LGBTQIA community rely on a legal system designed to criminalize their very existence and relegate them to legal non-persons?

Andrea Nichols’ article specifically addressed the inhuman police abuse against transgender sex workers. Sex workers, irrespective of their sexual orientation or gender identity, have been subjected to harassment and assault by police officers but it has been swept under the rug for decades. Kulick’s ethnographic research conducted in 1998 revealed that “transgendered sex workers [were] regularly robbed, beaten, and harassed by police officers” (Nichols, 2010). Similar treatment is experienced by transgender persons who are not sex workers because they are stigmatized as “street prostitutes, criminal, and immoral” (Wright & Wright,1997). “Ponnaya” is a derogatory verbal abuse that semantically refers to transgender persons. Nichols stated that respondents had reported instances where the police used such abusive language coupled with physical abuse to harass them.

The existing legal provisions are wielded by the police to persecute non-heteronormative individuals (Arrests and Harassment of LGBTIQ Persons, 2020). The joint press release by Equal Ground and Human Rights Watch revealed that the “Sri Lankan police have not only arrested individuals perceived as engaging in “acts of gross indecency” in public spaces but have raided private spaces such as hotel/motel rooms as well as private residences’’ (ibid.). Maduwage also referred to the Grave Crimes Abstract which categorized “unnatural sex”, i.e., same-sex relations with cases of grave sexual abuse (ibid.), evidenced by the 2019 report which recorded 710 cases of unnatural offences/ grace sexual abuse. The bitter truth these data bring to light is that nowhere is safe for LGBTQIA persons, be it within the public domain or in the sanctity of their private homes/spaces.

LGBTQIA people are often lawfully and unlawfully detained by the authorities. In 2016, the Asian Mirror reported a police-led crackdown on suspected lesbians. In the same year, UK FFM met with an Equal Ground representative who revealed that “‘LGBTI persons are detained all the time, detained without any charges being filed. Mainly detained so that money or sexual favours can be obtained from the person [by the police]. If it is not given then they are beaten, raped or blackmailed” (United Nations High Commissioner for Refugees, 2018). This ties back to the previous discussion on harassment as these detained people were harassed and abused by the detainers and were mostly without sufficient evidence. Moreover, The Vagrancy Ordinance and S 399 of the Penal Code sanction arrests and detainment based on appearance, i.e., a man who looks like a woman or a woman who looks like a man are perceived as imposters.

Forced Examinations.

The 2020 commentary of the Human Rights Watch (HRW) addressed forced anal and vaginal examinations as a form of sexual abuse. These fall within the scope of “cruel, inhuman and degrading treatment” which stands at the threshold of torture. The associate LGBT rights director at HRW, Neela Ghoshal, declared that such forced examinations “flagrantly violate the medical ethics as well as basic rights” (Sri Lanka: Forced Anal Exams in Homosexuality Prosecutions, 2020). There have been instances where reports of anal exams and evidence of past-penetration have been produced at court. The “EG-HRW joint press release which revealed that, in the 2017–2020 period, the authorities forced medical tests that include anal/vaginal examinations on at least seven individuals to provide proof of homosexual conduct” (ibid.). These data convey a very discouraging message to the LGBT community that they must accept sexual and gender identities they do not feel comfortable with in order to enjoy rights and privileges afforded to a citizen by the state. HRW pointed out that these examinations have no scientific or medical basis and were discredited by international entities including the WHO.

AIDS

A study done by the health professionals in Sri Lanka in 2011 predicted that the future of Sri Lanka’s HIV epidemic will be mainly spread by the LGBTQ community, through sexual intercourse between men. Today, according to the Annual National STD/AIDS Control Programme Report -2020 there are 3700 (3400–4100) HIV infected individuals living in Sri Lanka. The highest proportion of HIV infections were mainly seen among men who have sex with men (MSM) and commercial sex workers.

The HIV risk is however considered to be low-level in comparison with other South Asian countries but in the last few years, there has been a considerable rise in the number of both HIV prevalence and in total infections. Since the first-ever case noted in Sri Lanka in 1987, Sri Lanka has shown much commitment in coming up with a comprehensive response to the issue. However, these efforts were not perceived as successful in scaling prevention programs as done by the National STD and the AIDS Control program (NSACP) for the MSM in the country. One main reason is that Sri Lanka is still lacking in the development of community sensitive clinical services. In terms of the NSACP, although they did conduct workshops in Anuradhapura, Kandy and Colombo, there was no continuation of it. This was predominantly due to the limited and inconsistent funding which has restricted the reach to a significant ratio.

Another factor as to why there is a large percentage of HIV infected individuals in the LGBTQ community, especially under the MSM category is due to Sri Lanka’s laws being very unsupportive of the MSM, to say the least, and so it has become a challenge to gather MSM individuals in effective HIV prevention programs and preventive workshops. This can be clearly portrayed from instances where certain individuals have used the law to punish sex between men with jail time and extract bribes whilst threatening the LGBTQ community and their organizations. This has also encouraged negative social attitudes and perceptions towards them and many were discouraged from accessing health services targeted at MSM or even gaining a formal diagnosis. A survey done in 2006 showed that only 21% of MSM had ever been tested for HIV, in the last 12 months only 14% of the tested knew their results. In 2007, another survey showed that 13% of MSM had been tested for HIV in the last 12 months and knew their result; while 82.4% of ‘beach boys;’ and 79.1% of MSM had never been tested for HIV.

However, in a 2020 October survey done, from 373 beach boys, only 35.3% were ever tested for HIV, while the rest having never been diagnosed for HIV due to a lack of comprehensive knowledge about HIV. However, steps were taken in Sri Lanka to create a better environment for the MSM persons to come forward and receive the correct treatment for the infection as well as help take steps to prevent the spread of the disease. Also, in response to the growing homophobic violence and hate crimes, the NSACP issued a special policy statement to show support for the protection of the rights of the MSM. Another step in the right direction was the national Global Fund grant in 2011 that was awarded to finance long term HIV prevention interventions and programs for the MSM ‘beach boys’. This was due to the fact that as shown by a 2020 October study that ‘beach boys’ that are having sex with men and women may be acting as a bridge for HIV transmission between higher-risk groups such as MSM and lower risk heterosexual female population in Sri Lanka and also because in the past few years, surveys have found that the ‘beach boys’ are the most receptive partners and have engaged in anal sex with foreigners or tourists than local men for financial gain or items of value.

In order to curb the spread of HIV, Sri Lanka’s National Strategic Plan (NSP) for HIV has also come up with long term strategies to prevent new infections among the MSM and other persons in the LGBTQ community. According to the National HIV/STD Strategic Plan 2018–2022, currently, all HIV/STD programs are conducted and funded by the government and the Global Fund for AIDs where they focus on bringing awareness and knowledge and prevention of HIV. One focal point of theirs is condom demonstration and distribution with escorted referrals for HIV/STI testing at the 31 STD clinics in Sri Lanka under the “treat them all’’ policy of the WHO that was adopted in 2016. The Sri Lankan government has also developed policies and guidelines to create awareness and to reduce discrimination while introducing a Communication Strategy that was launched on World AIDS’s day 2017 which is curated to enhance awareness and information to a wider audience.

Public Opinion and Official Statements.

Sri Lanka, on 1st March 2021, for the first time grabbed international attention as the first South Asian country to declare an intent to secure and safeguard all individuals to have a right to live with much dignity despite their age, gender, sexuality, race, physical appearance and belief. This sudden declaration was a tweet by the Sri Lankan President Gotabaya Rajapaksha on Zero Discrimination Day which opened the window to much-needed talk about the once-taboo topic of the LGBTQIA community of Lanka.

It is quite important to address the narrative that has been built for centuries in terms of LGBTQ rights, furthered by religious and political groups such as priests, ministers, lawmakers among whom are individuals such as The SG of the Bodu Bala Sena, Lawmaker Nalinda Jayathissa, Wimal Weerawansa, Udaya Gammanpilla etc. Since Lawmaking is a largely political matter, the conventional and discriminatory attitudes clearly do not facilitate the creation of laws that protect these communities.

On the surface, Under the Sri Lankan Constitution Article 12 ensures equal rights and vows to protect all individuals from discrimination on the grounds of race, religion, language, caste, sex or political opinion. This however is not the case when comparing notes with Sri Lanka’s Penal Code (1883). The words used and the text written regarding the Sri Lankan LGBTQ community is considered to be a sad reflection of the opinions of the majority of the Sri Lankan population with words such as “carnal intercourse against the order of nature” and as “acts of gross indecency” thus showing the criminalized actions of same-sex relationship or intercourse with up to 10 years in a state prison for such actions. This hypocrisy has gone so far as to go before the UN Human Rights Committee and make representation to conclude that Article 12 of the Sri Lankan constitution and its laws are in accordance with non-discrimination on the basis of sexual orientation and gender identity.

Due to the backing of the Penal Codes and even the Vagrants Ordinance, the legal enforcers such as the police and even the majority of the judiciary will shield the authorities from all sorts of gruesome allegations which has given a significant rise in human rights violations against the LGBTQ community in Sri Lanka by the police forces In 2012, EQUAL GROUNDS conducted a study with 119 LGBTQ persons in Sri Lanka, where 62% of the respondents stated that they often have been verbally abused, harassed and threatened in the two previous years, with 20% suffering from physical abuse such as rape or battery. A good example would be the case that took place in 2016 where a transgender man employed in a hospital, was harassed and fired once his supervisor learnt that he had undergone gender confirmation surgery. The victim was then verbally harassed for “going against nature” and was demanded to show his genitals. Another instance that took place was in 2020, where inhumane methods such as anal/vaginal examinations, flogging and other torturous means were used against an LGBTQ individual in order to obtain any sort of evidence of same-sex intercourse. However, there have been official statements given by the Minister of Justice; Hon. Ali Sabry where he expounded on his belief in non-discrimination in the face of gender and sexual preference and ordered the authorities to treat the community with respect and dignity.

Unlike Sri Lanka, which is still in its infancy stage, its neighbours have taken strides to read down laws that criminalize same-sex relations such as India with section-377 of the Indian penal code, to Pakistan that enacted laws to recognize human rights of the LGBTQ community. The entire issue of homophobia seen in Sri Lanka stems from a past culture that began from the British colonial era that is now finally slowly waning away. The new generations and the media now are looking at the situation in a new light, with more LGBTQ discussions and a growing acceptance of the community.

Legitimizing the LGBTQIA Community

The LGBTQIA community’s history has always been inextricably linked to discrimination and harassment. In the twenty-first century, laws and practices from the Victorian era continue to discriminate against the LGBTQIA community, reinforcing their sense of exclusion from society. Therefore, passing laws to repeal discriminatory laws is the first step towards changing the current social norms. While legislative reforms are essential to overcome the harassment faced by the LGBTQIA community, individuals and civil advocacy groups must also take a position and defend the LGBTQIA community when their fundamental rights are trampled on, resisted, and discarded. In this context, the cruciality of the need to promote equality and diversity and cultivate a society that actively encourages difference and values the worth of people from all backgrounds is undeniable. This research paper seeks to establish the following proposals as means of protecting and promoting the LGBTQIA community’s rights;

1. Directing the law enforcement entities to stop profiling and discriminatory policing against the LGBTQIA community.

LGBTQIA persons encounter the criminal justice system for different reasons, including ignorance, bias, and profiling by police enforcement. Recently, a so-called “‘ positive thinking counsellor’’ made derogatory remarks about the LGBTQIA community during a police training programme in Kandy (Maduwage, Calling for an end to homophobia and transphobia — Plus | Daily Mirror 2021). These ineffective training programmes would exacerbate the discrimination and harassment that the LGBTQIA community already faces when encountered by law enforcement. The Sri Lanka College of Psychiatrists, on the other hand, took swift action regarding individuals propagating false and harmful messages about the LGBTQIA community by making an official statement upholding the LGBTQIA community’s societal values.

While official statements of the Sri Lanka College of Psychiatrists may dissuade professionals from harassing members of the LGBTQIA community to a certain extent, more measures should be implemented to prevent the LGBTQIA community from being denigrated.

Therefore, in order to address implicit prejudice and increase cultural responsiveness to the LGBTQIA community the following strategies may be executed;

● Adoption of policies that prohibit profiling and discrimination based on gender and identity, expression and sexual orientation and,

● Early training and recruitment for officers related to cultural diversity, including a specific response to LGBTQIA and non-gender individuals.

● Increasing transparency and accountability for police misconduct.

2. Initiating Antihomophobic, Biphobic and Transphobic Bullying Programmes within Educational Institutions.

In collaboration with other governmental institutions, the Ministry of Education should implement an anti-homophobic, biphobic, and transphobic bullying programme to ensure the safety and protection of students and all LGBTQIA members of the educational field. This programme should reach all educational institutions in the country, including but not limited to early childhood institutions, schools, and universities. Both government and educational institutions should benefit from the programme.

Working with credible LGBTQIA advocacy groups would help the government understand how educational institutions can combat homophobic, biphobic, and transphobic bullying and how to maintain this effort in the medium and long term through academic curriculum and policies.

It’s worth noting that when the United Kingdom launched a comprehensive anti-homophobic, biphobic, and transphobic bullying programme, it reduced bullying instances significantly (LGBT Action Plan — 2018.)

Thus, the UK government’s anti-LGBTQIA policy offers a robust demonstration of how a comprehensive government-funded anti-bullying programme will ensure that members of the LGBTQIA community in Sri Lanka who work in education would be free to be themselves without fear of harassment. (National LGBT Survey Summary Report 2018)

Furthermore, the Ministry of Education and other government agencies should take steps to guarantee that educational institutions have adequate mechanisms to address bullying directed at the LGBTQIA population. These methods should include providing victims of homophobic, biphobic, or transphobic incidents the required help, such as access to professionally trained staff and referrals to reputable LGBTQIA advocacy organisations.

3. Policies for an LGBTQIA inclusive workplace.

Numerous studies and surveys conducted by LGBTQIA advocacy organisations reveal that job discrimination, harassment, and bullying continue to be a problem for LGBTQIA individuals in a range of facets of their lives (Chowdhury, S.A. , 2021).

To address this issue the Sri Lankan government should create and conduct a comprehensive training programme to help employers and employees deal with LGBTQIA discrimination in the workplace.

While government programmes are essential for fostering an LGBTQIA-inclusive workplace, the private sector must also take steps to promote an LGBTQIA-friendly environment.

The following are a few Sri Lankan private corporations and entities that have implemented an Equality and Diversity Policy;

● British Council Sri Lanka
● Fortitude
● John Keells holdings
● Nestle
● Unilever

4. Funding Legislative & Public Advocacy Organizations and Establishing Public Interest Litigation Organizations.

LGBTQIA advocacy groups should conduct systematic media campaigns, awareness programmes, surveys, research, and policy briefings to gain a comprehensive grasp of the LGBTQIA Community’s challenges These advocacy group activities could be utilized to persuade politicians, government agencies, and policymakers to eliminate discrimination and harassment faced by the LGBTQIA community. However, these advocacy groups have to incur significant expenses to implement these initiatives. Therefore, it is important that LGBTQIA advocacy groups are funded to conduct methodical activities.

While advocating a legislative front to enact inclusive laws to protect the rights of the LGBTQIA community, it is also important to focus on challenging unfair and discriminatory laws in court. Public Interest Litigation Organizations should use litigation to protect and strengthen the civil rights of LGBTQIA people involved in the justice system and law enforcement.

Unfortunately, there are relatively few organizations committed to representing LGBTQIA individuals in legal matters. Thus it is essential to establish a recognised organisation such as Women in Need — a non-profit organization dedicated to providing legal services to women who have been victims of violence — to address the LGBTQIA community’s legal difficulties and challenges. Non-profit organization. The work of these types of organizations ensures that their lawyers will be at the forefront of any new issues relating to LGBTQIA that arise.

References

A study on workplace discrimination: Challenges faced by LGBTIQ employees and the perspectives of employers in Sri Lanka, EQUAL GROUND, Sri Lanka.

Arrests and Harassment of LGBTIQ Persons. (2020, October 22). Groundviews. https://groundviews.org/2020/10/22/arrests-and-harassment-of-lgbtiq-persons/

LBGT Action Plan — Improving the Lives of Lesbian, Gay, Bisexual and Transgender People (2018). The Government of UK.

Maduwage, S. (2021, August 5). Calling for an End To Homophobia And Transphobia - Plus | Daily Mirror. Calling for an end to homophobia and transphobia — Plus | Daily Mirror. https://www.dailymirror.lk/recomended-news/Calling-for-an-end-to--homophobia-and-transphobia/277–217552.

Nichols, A. (2010). Dance Ponnaya, Dance! Police Abuses Against Transgender Sex Workers in Sri Lanka. Feminist Criminology, 5(2), 195–222. https://doi.org/10.1177/1557085110366226

Sooriyagoda, L. (2021, August 19). Sri Lanka College Of Psychiatrists Urge Authorities To Decriminalize Homosexuality — Latest News | Daily Mirror. Sri Lanka College of Psychiatrists urges authorities to decriminalize homosexuality — Latest News | Daily Mirror. https://www.dailymirror.lk/breaking_news/Sri-Lanka-College-of-Psychiatrists-urge-authorities-to-decriminalize-homosexuality/108–218589.

Sri Lanka: Forced Anal Exams in Homosexuality Prosecutions. (2020, October 28). Human Rights Watch. https://www.hrw.org/news/2020/10/20/sri-lanka-forced-anal-exams-homosexuality-prosecutions

The Government of the United Kingdom. (2018). (rep.). NATIONAL LGBT SURVEY SUMMARY REPORT.

United Nations High Commissioner for Refugees. (2018, September). Refworld |Country Policy and Information Note Sri Lanka: Sexual orientation and gender identity and expression. Refworld. https://www.refworld.org/docid/5bb5d5204.html

US Department of State. (2016). (rep.). Country Reports on Human Rights Practices for 2015 Sri Lanka.

US Department of State. (2019). (rep.). Country Reports on Human Rights Practices for 2018 Sri Lanka.

Wright, T., & Wright, R. (1997). Bolivia: Developing a gay community — Homosexuality and AIDS. In D. J. West & R. Green (Eds.), Sociolegal control of homosexuality. Plenum Press: New York.

Pride in Diversity: Battling Harassment Against the LGBTQIA Community.

Article and Editorial by,
Ravihari Ravendrakumar
Thisura Perera
Sahani Wanasinghe