LGBT rights in Sri Lanka

LGBT rights in Sri Lanka Sri Lanka
Same-sex sexual intercourse legal status Illegal under Article 365A, but unenforced and now dormant as per Supreme Court judgement
Gender identity/expression Transgender people allowed to change gender, following surgery and therapy
Discrimination protections Yes, constitutional protections
Family rights
Recognition of
relationships		 No recognition of same-sex couples
Adoption –

Lesbian, gay, bisexual, and transgender (LGBT) rights in Sri Lanka have mostly remained stagnant since the colonial era. The island's legal framework lacks the concept of judical review, which means that the constitutional court cannot repel a law - at the most it can refuse to enforce the law.[1]

A 135 year old British law criminalizing gay sex remains on the books, however the law is not used and remains a dormant law. The US Department for Justice wrote that the police were "not actively arresting and prosecuting those who engaged in LGBT activity" and that the provisions have also reportedly not led to any convictions to date despite "complaints citing the provisions of the law [being] received by the police".[2]

Transgender people have been allowed to change gender for a long time. The Supreme Court has also emphasised that Article 365A cannot be enforced by the Court and this would therefore de facto make the law dormant under the island's constitution.[3] However, many homosexuals do not report discrimination due to the homophobia they might face in their personal lives.[4]

Criminalization

Section 365 and 365A

These are sections of the Penal Code describe that the unnatural offences and acts of gross indecency. It states that the act should be"punished with rigorous imprisonment for a term not less than 10 years and not exceeding twenty years with a fine and compensation".[5] As at 2018 the country has not convicted anyone under those provisions since 1948.[6][7]

In 1995, criminal law was amended to expressly prohibit "gross indecency" no matter the gender of the participants.[8] In November 2017, Deputy Solicitor General Nerin Pulle stated that the government would move to decriminalize same-sex sexual activity.[9]

The law was declared unenforcable by the Supreme Court of Sri Lanka. Albeit the country's constitution does not provide the Court the powers to completely expel a law from the books, it does however set case law and effectively makes the law dormant.[10]

Section 399

This section criminalized gender impersonation and is often used against transgendered people. It can used in situations where a person has converted to another gender yet bears a different gender on their documentation. It is however legally possible to change your gender in Sri Lanka.[5]

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.[5]

Recognition and Anti-Discrimination Protections

Family Law

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

Anti-Discrimination Law

LGBT flag map of Sri Lanka

The Government of Sri Lanka explained to the United Nations Human Rights Committee on October 7–8, 2014 in Geneva that sexual minorities were already protected under existing anti-discrimination laws provided in the Constitution.[11]

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.[12]

Gender Identity

A patient who wishes to undergo sex reassignment surgery (SRS) must consult a psychiatrist for an initial evaluation. If the person is deemed to be of sound mental status, an official letter endorsing this can be issued. The patient can now start to undergo necessary hormone therapy prior to any surgical intervention. It can often be troublesome to find therapists who are understanding of transgender issues.[13]

A major hindrance to most transgender individuals is that the island lacks any public or private hospitals that are able to perform SRS. The high costs of obtaining private treatment abroad can often be a strong deterrent from finishing the transition process.[13]

It is currently possible for transgender individuals to obtain a new identity card from the Department of Registrations of Persons that is concordant with their gender identity, upon the provision of correct documentation to the department. However, many transgender individuals complain that they are unable to obtain the required documents (mainly medical notes) and therefore cannot register themselves for a new ID.[14]

Summary table

Same-sex sexual activity legal Section is not enforced and complaints are ignored by police. The Supreme Court has advised that the law is unenforcable at the court.
Anti-discrimination laws
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples (Married couples only)
LGBT people allowed to serve openly in the military
Right to change legal gender
Recognition of third gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

References

  1. ↑ "The battle against homophobia in Sri Lanka". Sunday Observer. 2018-09-22. Retrieved 2018-09-30.
  2. ↑ "Department for Justice" (PDF).
  3. ↑ "The battle against homophobia in Sri Lanka". Sunday Observer. 2018-09-22. Retrieved 2018-09-24.
  4. ↑ "Sri Lankan Police Arrest a Lesbian Couple and Police justifies its Action | Sri Lanka Brief". srilankabrief.org. Retrieved 2018-10-05.
  5. 1 2 3 "Removing barriers for LGBT + people in Sri Lanka". Retrieved 2018-09-30.
  6. ↑ Elliott, Josh (6 September 2018). "India legalized homosexuality, but many of its neighbours haven't". Global News. Retrieved 9 October 2018.
  7. ↑ "Human rights violations against LGBTIQ individuals in Sri Lanka" (PDF). ILGA. Equal Ground. Retrieved 9 October 2018.
  8. ↑ "Sodomy Laws, Sri Lanka". galpn.org. Retrieved 2011-02-05.
  9. ↑ Sri Lanka promises to decriminalize homosexuality and to protect LGBTI people
  10. ↑ "The battle against homophobia in Sri Lanka". Sunday Observer. 2018-09-22. Retrieved 2018-10-07.
  11. ↑ brian (2014-10-20). "Sri Lanka Government Says LGBT Rights Are Constitutionally Protected". OutRight. Retrieved 2017-08-31.
  12. ↑ "Sri Lanka Keeps Homosexuality A Crime, But Bans Anti-LGBT Discrimination". LOGO News. Retrieved 2017-08-31.
  13. 1 2 Jayasinha, Anukshi (2016-10-05). "What It Means To Be Transgender In Sri Lanka". Roar Reports. Retrieved 2017-08-31.
  14. ↑ "Who am I?". Retrieved 2017-08-31.
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