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Decriminalising homosexuality: What this means for Sri Lanka

1 March 2023 12:08 am - 23     - {{hitsCtrl.values.hits}}

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An Indian supporter of the LGBTIQ community takes part in a pride parade (AFP)

 

 

“Decriminalisation is an extremely important and long overdue step. It will show that the law, rightfully, does not view same-sex relationships as an offence, a wrong or something that requires state interference or punishment,” said Ambika Satkunanathan, human rights lawyer, activist and former Commissioner of the Human Rights Commission of Sri Lanka.  


In August 2022, a Private Members’ Bill was initiated by MP Premnath C. Dolawatte and the Sri Lanka Podujana Peramuna (SLPP) calling for the decriminalisation of homosexuality and the amendment of Sections 365 and 365A of the Penal Code. The President announced that the government would not take action to block the Bill shortly after it was presented. The ruling party as well as several other parties have since stated their support for the Bill’s passing. The draft Bill has been referred to the Attorney General’s Department to assess its alignment with the Sri Lankan Constitution.  


If the Bill passes, Sri Lanka would become the 30th Asian country to decriminalise homosexuality. Same-sex marriages, however, would not be legalised.  
The decriminalisation of same-sex relationships would play an integral role in reducing discrimination against members of the LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex, Questioning/Queer) community, and has been a focal aim of activists.   


“For a very long time, we have tried many avenues through which to convince the government to decriminalise consenting same-sex relationships. It’s a wait-and-see game because we know what has happened in the past. Hopefully, the people in power have learned from their mistakes, opened their eyes and become less discriminatory. There’s a lot of hope,” shared Rosanna Flamer-Caldera, LGBTIQ rights activist and Founder of Equal Ground.  

The Bill: far from perfect

Dolawatte’s Private Member Bill has sparked progressive conversation within many political parties as well as amongst the public. However, an important detail of this Bill is that it seeks to amend sections 365 and 365A, rather than repeal them.  
The proposed amendment to section 365 retains the criminalisation of carnal intercourse with animals. It can be noted that this is already covered in Section 2(1) of the Prevention of Cruelty To Animals Act.  
The Bill seeks to amend section 365A to criminalise gross acts of indecency committed in certain contexts, specifically:  

  • Without the consent of the other person,  
  • With or without the consent of the other person when that person is under 16 years of age,  
  • With the consent of the other person while one such other person was in lawful of unlawful detention or where that consent has been obtained, by use of force, or intimidation, or threat of detention or by putting such other person in fear of death or hurt,  
  • With the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.  

This proposed amendment carries an overlap with sections 363 and 364 of the Penal Code as well as the Prevention of Torture Act and laws on abuse.   
Satkunanathan commented, “There is no rationale for not repealing sections 365 and 365A and then amending provisions in the laws that are criticized for being  gender specific to be gender neutral. Continued retention of sections 365 and 365A after amendment makes them redundant because they will then cover areas that are already dealt with by existing law”.
Flamer-Caldera expressed the same concern. “I don’t see why they can’t take off 365 and 365A completely and just decriminalise the same. We don’t know how the government is going to tweak these laws. We’re concerned. I’m concerned,” she remarked.  

 

The decriminalisation of homosexuality does have the power to change how the police and various state actors treat LGBTIQ individuals as well as open the door towards achieving positive social change

 

The current reality

“The LGBTIQ community is currently marginalised in all social services, unless you don’t say you are gay or lesbian or part of the community and are able to ‘pass’. We don’t want to ‘pass’ in order to be treated as full citizens,” shared Flamer-Caldera.  


This marginalisation has resulted in the inequitable treatment of LGBTIQ individuals, thus limiting their access to healthcare, justice and fair consideration in the workplace. Children are bullied and treated differently by teachers. Slurs are yelled out in public and arbitrary arrests are made. The decriminalisation of homosexuality does, therefore, have the power to change how the police and various state actors treat LGBTIQ individuals as well as open the door towards achieving positive social change.  


“We are a very puritanical and conservative society as well as a hypocritical society.  For example, people don’t want sex-ed taught in schools. Teaching sex-ed does not corrupt children, it makes them more aware. It makes them safer by giving them the knowledge to protect themselves. This is important so that they do not grow up with sexist, misogynistic values. It is this lack of awareness and understanding that creates environments which enable violence against women and LGBTIQ persons” said Satkunanathan.  
She further commented, “We have a Member of Parliament using abusive, sexist language against a woman Parliamentarian, and that apparently is okay but teaching children about their bodies and their sexuality is not. This denial and hypocrisy is harming us”.

Creating a culture of acceptance

There is still a huge stigma and a sense of propagated shame surrounding the LGBTIQ community in Sri Lanka which has resulted in them being mistreated and discriminated against.

Rosanna Flamer-Caldera 

Ambika Satkunanathan

Legislative change must, therefore, be compounded with social change in order to advance the acceptance and safety of these individuals.  
Little by little, this change is taking place.  


Flamer-Caldera stated, “Equal Ground has done programmes in 20 out of the 25 districts and we have never once faced any kind of hatred from people. They have understood and opened their minds, once they realised what the subject is and why people are different. When people are educated, they think in a totally different fashion. One would think that people in the rural areas would be more homophobic and uptight but they accepted us and were able to converse with us and ask questions to better understand what the LGBTIQ community really is”.   


“Since 2015, we have been doing diversity and inclusion programmes in many corporations. We’re seeing these efforts beginning to bear fruit. Many corporations are supporting LGBTIQ rights and sponsoring LGBTIQ groups as well as joining us for Colombo Pride. The culture is changing,” she added.  
Satkunanathan echoed the need for more social awareness and education, emphasising the role of the state, political parties and schools. “Our school curriculum is quite sexist, there are elements in it which are prejudicial to certain communities. It does not contain progressive values that can contribute towards creating an equitable society in which there is social cohesion and harmony. This needs to change,” she said.  

What next?

While decriminalising homosexuality would be a notable advancement in terms of state recognition of the gay and lesbian community, it is still a small step in the long-drawn road to equality.  
During this interim period before the Bill progresses through the lawmaking levels, it is important to question what else can be done to promote equality.   
“We don’t need to wait for decriminalisation to change our textbooks, but one of the most difficult things to do is to change our educational curriculum. We don’t need to wait for decriminalisation for political parties to change their behaviour. We don’t need to wait for decriminalisation to create awareness or for state sector staff, such as those in health care, to treat LGBTIQ persons with respect and dignity”, Satkunanathan pointed out. 


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  Comments - 23

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  • saman Wednesday, 01 March 2023 10:17 AM

    Even animals don't do this kind of things. How do we differentiate ourselves from Europe and western countries as a civilized country we allow this practice ? Its best for LGBTIQ people to move to a western country where they are welcome. LGBTIQ people are western minded people anyway.

    Roisin Thursday, 02 March 2023 04:47 PM

    People who discriminate ,insult and riducule the LGBTIQ community are usually very insecure about their own personal sexual orientation. Rosanna and Ambika are very brave ladies and instead of pushing them away from their motherland Sri Lanka needs these brave, developed and openminded people. Especially when I read comments like yours.

    Raja Wednesday, 01 March 2023 06:34 PM

    Dear Vinuki Medagama, Will you be able to accept if your son or daughter want to marry a same sex person. Why do you want to promote this in a country where people value their culture.

    Atheist Thursday, 02 March 2023 12:21 PM

    Ironically the people who are against the emancipation of homosexuals the most can not be trusted with young boys: the Catholic and Buddhist clergy.

    SRI LANKAN Friday, 03 March 2023 02:49 AM

    @saman Even some plants are gay.

    Sitharie Medagama Friday, 03 March 2023 06:32 AM

    Timely article and an eye opener. Ironic and sad to see the hate on a day to dedicated to zero discrimination!

    Anne Friday, 03 March 2023 03:28 PM

    Decriminalizing is fine but how to prevent the country descending into the madness of transgender ideology that has conquered the Western world? They can no longer define a man and a woman, are performing irreversible treatments and surgeries on children and men posing as women are invading women's spaces, security of children threatened absurd pronouns and irrational changes to language and vitriolic attacks on anyone who holds an opposing view. What assurance is there that this country would not go down the same slippery slope?

    Brit Friday, 03 March 2023 06:25 PM

    Anne : I am sure you never been out of Sri Lanka. Transgender is not an ideology. 60 years ago homosexuality was forbidden in the UK. Now you can live your life in peace here, because of all the knowledge about LGBTIQ. That is called developement.

    Anne Friday, 03 March 2023 09:34 PM

    Brit: The current transgender movement is very much an ideology and it doesn't have good intentions. The transgender ideology isn't for "peace" as you call it. It is for engulfing every aspect of society and making everything revolve around it. Therefore it is very much an ideology. What about their move for pushing for self identification and threatening women's spaces? What about their campaign to allow minors to have irreversible surgeries and treatment? I wouldn't call it development. It's a time bomb waiting to explode. Maybe for you, your society and your country it is okay and that is fine. But it doesn't have to be for the rest of the world.

    Born again Saturday, 04 March 2023 03:06 AM

    Pedophiles and homosexuals are normal?

    Kumar Saturday, 04 March 2023 08:25 AM

    Are there same sex marriages in Sri Lanka? It was the former Mayor of San Francisco and the current governor of California that conducted gay marriages for the first time in the in the US. Years ago, I knew a male village kid who wore female clothing until he grew up. Our niece gave her old clothing to this kid. This kid had a twin brother too and that kid wore male clothing.

    Kanagalingam, Former Teacher in Jaffna Saturday, 04 March 2023 11:46 PM

    In the West after achieving equality in sexual orientation underpinned by law, there is now a race to remove the concept of gender. This is mad and dangerous. If the lunatic West wants to destroy its society let them to do it but we the Asians, Hindus and Buddhists, should never be part of this “ Western Suicidal Drama”.

    Nuwan Sunday, 05 March 2023 02:06 PM

    In memory of Alan Turing the man who made possible this very medium I am using here, the modern computer. He was gay and they killed him at the young age of 42 trying to "cure" him. So discrimination against LGBTIQ communities must stop now.

    Born again Sunday, 05 March 2023 05:17 PM

    Pedophiles and homosexuals require equal rights? Is it normal to a pedophile or homosexual?

    INDRAJITH APONSU Monday, 06 March 2023 02:58 PM

    The conversation here appears biased and pathetically old-fashioned. The language is hostile and unhelpful. Science tells us that man to woman is a spectrum, not a specific definition. Someone asks whether it is ok to accept if the person is your son, daughter, or a close relative. Yes, it's hard when it happens close. Yet, the principle holds that it should not be for someone else to decide. We need to grow up to see the world from a pluralistic perspective. That said, politicking such slogans of LGBT are equally damaging and anti-humanistic, especially since some hold strong views due to their historical upbringing and not due to arrogance. Respect them and patiently educate them.

    Punchi Tuesday, 07 March 2023 09:53 AM

    I was in a Cypriot barbers shop in Southall England in the 80s, one of our patriots who had a damp proofing business and stored his materials in an adjacent shop came in and a conversation maybe a wind up of the patriot on sex between men occurred. Our patriot responded that it is the favorite past time between men and boys in our paradise

    Roger Tuesday, 07 March 2023 11:35 AM

    so is it better to hide your sexual orientation and get married being unhappy and still go and practice hiddenly your sexual desire ? this is cheating not only your wife, children, whole family but mostly yourself. Everyone has the right to love and live his life despite of its origin, color or sexual orientation. And for the record no one chose to be gay, they born like this and are normal people like everyone. High time to have this bill passed. The problem is that the people always see the extreme figures but there are many many more living normally within the society, it could be your neighbour, your best friend - anyone !

    lester Thursday, 09 March 2023 07:01 PM

    Why do you want to decriminalize it? Has the government been arresting gay people or even questioning sexual orientation public? Its not enforced like the death penalty. Its a moot point you are talking about. If you remove that law from the books, how do we differentiate Sri Lanka from western countries? We are an eastern country with eastern values. Homosexuality is a practice even animals don't engage in. Don't drag the entire country to that level to fulfill your ambitions.

    SL Friday, 10 March 2023 04:13 AM

    In Islamic law all these are prohibited and punishable by death penality....It had been like that in Europe too in old days Now all has changed. Rationalists and secularists have changed all social norms of people in these countries...Now we are good in copying them without reading all the far seeking consequences of the acts and actions of all these groups .. They all go against the nature and God given rulers ..

    Jack Friday, 10 March 2023 10:50 PM

    This is not development. This is madness. Those who promote this are immoral. I had a respect for this bold lawyer mentioned but supporting these bills. I pray that they change their stance.

    Kirsten Andersen from Denmark Saturday, 11 March 2023 02:52 AM

    #Raja: my daughter is married to a lovely woman and they have a very good and stable loving relationship. I love my daughter in law very much for making my daughter so happy. Not every heterosexual couple are as committed as they are.

    Muralidaran Ramesh Somasunderam. Tuesday, 14 March 2023 12:02 PM

    I think decriminalising homosexuality is fine but please do not follow western counties in Sri Lanka and accept same sex marriages. A child in my view requires a father and mother and why bring three people in regard to giving birth to a child when two people is what nature intended in contributing to a child's birth with the mother caring the baby for ten months before giving birth to a child.

    Average Joe Wednesday, 15 March 2023 01:56 PM

    There should be no need for any laws criminalizing and then no need to decriminalize an act that is essentially the fulfillment of a personal need. If only everyone learnt to keep their private acts private instead of being so public about it, this mess would not happen.


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