No! Being Gay is not illegal in Sri Lanka. Law is being misinterpreted: Talk with Aritha Wickramasinghe

No! Being Gay is not illegal in Sri Lanka. Law is being misinterpreted: Talk with Aritha Wickramasinghe

30 September 2020 03:38 pm

The Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer/Questioning community, or commonly knowns as the LGBTIQ Community, may have been a trendsetter in the press over the preceding period. But nowhere did we learn that the conversation was diverted into a point in which their rights were addressed. During the period when the island was locked down amidst the COVID-19 contagion, a famous YouTuber had taken a rather drastic course over the Sri Lankan LGBTIQ Community by launching a hate campaign. Thus various activities had carried out in social media that used LGBTIQ as a scapegoat for narrow political purposes.

It has been days since a leading newspaper in Sri Lanka reported of a prosecution of two gay men for allegedly having sex. But there were questions about the accuracy of some of the content of the report. Nevertheless, with that news came a wide-ranging discussion about the topic on and off social media. It is fair to note that the LGBTIQ community was dragged in to a growing trend of ridicule, discrimination, harassment and violence. There were various posts depicting mockery over the LGBTIQ community. Hence, the recent press statement delivered by Dr. Rasanjali Hettiarachchi, Director of the National STD/AIDS Control Program (NSACP) stemmed the conversation about gay people.

This discourse must have been controversial in Sri Lanka for a very long time; May have remained unresolved. It may have also been used for political gain. Amidst such never-ending arguments, the LGBTIQ community may have shared endless hardships over the decades. In fact, it is a pity that the people living in Sri Lanka have so little knowledge about a certain group of people living among them. Shedding light onto this perplexing but not so unheard-of debate, LNW has spoken to Aritha Wickramasinghe, lawyer by profession, Solicitor, England and Wales, a human rights activist in Sri Lanka and Director of Equality Law, Justice Programme, in the objective of learning on the LGBTIQ community living in Sri Lanka, the laws that affect them and their human rights.  

Below is the discussion we had with Aritha Wickramasinghe:

The obvious question comes first, as we speak. Is being gay illegal in Sri Lanka? 

No. Being gay in Sri Lanka is not illegal. There is nothing in Sri Lankan law which prohibits someone from being lesbian, gay, bisexual or transgender. However, what our Penal Code does is that it prohibits certain sexual activities and behaviours, irrespective of the gender of the participants. The specific laws which do this are sections 365 and 365A of the penal code.

Section 365 criminalises carnal intercourse against the ‘order of nature’ between man, woman and animal. Section 365A prohibits acts of gross indecency between any persons. Both these laws are gender neutral. But these laws are also very vague and the historic interpretations of what they mean have led to persecution of LGBT people and a practical criminalisation of being gay or lesbian in Sri Lanka.

If you look at Section 365, judgments from across South and South East Asia, have held that anal sex, oral sex, thigh sex and even mutual masturbation falls into the category of "carnal intercourse against the order of nature". These offences can be committed by both heterosexual and homosexual persons. In fact, many of the oral sex offences have been against heterosexual persons. This was one of the reasons why Singapore repealed this section in their penal code. Some courts have interpreted this section to mean that any form of sex without a reproductive purpose is unnatural. These are very absurd judgments and could mean that even using contraception is a criminal offence. 

In Sri Lanka, these laws are used primarily against gay and lesbian people. It has led to a practical criminalisation of homosexuality. 


We have witnessed a terrible amount of sensationalised content on the Press involving prosecution of two guys for allegedly having sex. What were the exact allegations levelled against these two guys, according to the law of Sri Lanka?

I am not aware of the exact details of this case. We are filing for proceedings from the Court and will have more details on it. But, these cases are not unusual. Every year, there are several arrests and prosecutions of LGBT persons. What is disappointing is that, despite the number of progressive judgments across the world which have undeniably held that consensual gay sex is not unnatural or grossly indecent and therefore, not criminal, Sri Lankan courts are yet to exercise their powers of interpretation to dismiss such cases or to deliver a similar pronouncement when our police decides to prosecute consenting adults for their private relations. 


You are a lawyer. According to your knowledge, are lawyers in Sri Lanka willing to provide legal assistance to gay people? 

Yes. There are definitely many lawyers out there that are willing to provide legal assistance to gay people. Many have come forward willing to file a fundamental rights application in support of gay people for free as they are troubled by the ongoing persecution of LGBT people by Sri Lanka's police. However, the biggest challenge that we face is that many gay men who are being prosecuted under these laws do not want to challenge it. Many would rather plead guilty and be over with the case than be haunted by the shame of criminalisation. 


How does the law of Sri Lanka affect consensus sex between two adults?

As discussed above, sections 365 and 365A of the Penal Code allow for arbitrary interference into the private and consensual relationships between adults by Sri Lanka's police. The vagueness of these laws have empowered the police to interpret them according to their own morality. This arbitrary and discriminatory application of the law must be challenged and there is a very strong case to do so.

Our police are no different to the moral police you find in countries like Saudi Arabia that go around shopping malls with batons separating couples and measuring the length of clothes. However, while our police is busy punishing adults for consensual relationships, they do little to take action against non-consensual violence against people, especially rape of women and children. 

 

Why do you think being gay, or one recognising themselves in a spectrum that may not correspond to the mainstream, is a taboo in Sri Lanka?

The main reason why being LGBT+ has become taboo is thanks to European colonisation of Sri Lanka and the replacement of our ancient cultural and religious values of acceptance and tolerance by the harsher Victorian British values of repression and control. When the British especially colonised our country, they decided to treat our religions, our philosophy and culture as primitive and uncivilised. This included our historic acceptance of LGBT+ people and the prominent cultural position they had in Sri Lanka. 

Unfortunately, although our former colonial master has done a lot ever since to undo the wrongs they have committed against the LGBT community, Sri Lanka seems to want to retain these oppressive laws and attitudes of our colonial masters. I always say that Sri Lankan people never truly received their independence. We just replaced one white colonial masters with a brown one. Unless we decolonise our laws and regressive values, we will not fully be independent. 


People have this tendency to push gay people into the framework of being 'sex addicts'. Are gay people sex addicts?

Of course not! Gay people are not sex addicts. This kind of thinking is a result of homophobia and internalised homophobia which many of us carry. 

In my view, gay people are not even having as much sex as straight people. Straight people. are definitely having way more sex than gay people and they have the population growth to prove that and the enormous amounts of condoms and contraceptive pills sold. 

In any case, there is nothing wrong with sex. Sex is natural and is healthy. 

We must also understand, that unlike straight people, gay people are denied the right by society and law to have legitimate relationships and for those relationships to be recognised. This has an impact on how we and others look at gay relationships, especially sexual relationships. 


We may have heard of historical evidence suggesting that LGBTIQ people were part of Sri Lanka's culture. But since when did LGBTIQ people become so 'anti-cultural'? Had the Victorian era played a role in this?

- Yes. See my answer above. 


The Attorney General confirmed protection for LGBTIQ people via the Constitution in 2014, and more importantly, he emphasised that the existing law cannot be enforced to discriminate LGBTIQ people. How come this is never addressed on mainstream media? Does the Judiciary avoid?

Yes. In 2014, the Attorney General declared that LGBTIQ people were protected under the Constitution and that discrimination against them was unconstitutional. The AG further went to emphasise that existing laws must not be applied in a manner that discriminated against the LGBTIQ community and to do so would also be unconstitutional. This message by the AG has been repeated in 2017 and 2019. However, unfortunately, neither the mainstream media or even the police seems to have understood this message or spread it. It is so very important that this position of the AG is spread far and wide. What is important to also understand is that the AG first made this message during the Presidency of H.E. Mahinda Rajapakse, who is now the Prime Minister. The AG made this statement as the chief legal advisor of the Government and this position should still stand. 

The judiciary also seems unaware of this pronouncement. That's also because judges usually make judgments based on the arguments presented to them. I don't think any lawyer so far has made such an argument in court. However, in 2016 we did have a Supreme Court judgment where the court questioned whether the purpose of the law should be to police what consenting adults do in private. In that case, two people were successfully prosecuted under 365A for actually gay sex in a public car park. Nevertheless, the Court took the position that since both parties consented that it does not warrant a custodial sentence and released them. 


Why do you think LGBTIQ people in Sri Lanka are afraid for visibility?

They are afraid to be more visible because of social attitudes and a legal system which is just not in their favour. 


What would be your opinion on people, who are working for the rights of minority groups, being labelled as 'NGO people'?

I think it's great that we have a number of organisations now that are working to advance the rights of LGBT persons. Many organisations do very important and valued work. However, they face several challenges especially around access to funding in order to expand their work and support more people. 

I think people working in civil society being labelled as "NGO people" need to own that word and take pride in it. The fact that we have non-governmental organisations doing work which Governments are supposed to be doing shows how Government has failed to protect the most marginalised and vulnerable. People working for NGOs must take pride in their word and in that word "NGO". It means you are doing a service to your country and your community which your elected Government, whom you pay taxes to, has failed to do. 


We have heard in the media that Sri Lanka is going to withdraw from the Human Rights Council. If this is proceeded as said, would it affect the rights of marginalised groups in Sri Lanka?

I haven't heard this news and therefore cannot comment on it. However, not participating in the Human Rights Council does not mean that our Government won't continue to have its obligations to protect the fundamental rights of Sri Lankan citizens, especially those of marginalised groups such as the LGBT community. We don't get our fundamental rights from participating in the Human Rights Council or even through the Constitution. We get our fundamental rights from birth. 


How strong do you think the LGBTIQ movement is in Sri Lanka?

I think the movement had progressed quite a lot over the years. It is definitely getting stronger and I hope it will continue to get stronger. 


Lately, the Director of the National STD/AIDS Control Program cited statistics suggesting that the prevalence of HIV among men of age 19 - 25 is at a rise, and among them are mostly 'gay men'. How accurate would this claim be, according to your point of view?

Young gay men are at high risk for HIV and I don't want to dispute the statistics by the NSACP. However, we need to understand why gay men are at high risk and instead of blaming gay men, we need to point our fingers at Government and institutions which continue to criminalise and demonise gay people. 

Protecting oneself from HIV requires access to information on how to protect oneself and the ability to have regular health check ups. In a country where gay people are in effect treated like criminals and are marginalised by society, how can we expect them to come forward to receive the required information to protect themselves and give them the confidence to seek medical care without judgment or persecution?

The increasing incidences of HIV among young gay men is a failure of the State and the NSACP to introduce reforms that protect the communities they are supposed to serve. Their tactics of fear and demonisation is further isolating key populations. The NSACP's failure to take a stronger stance with Government to push for decriminalisation makes them complicit in our marginalisation.

In almost all prosecutions against gay men in Sri Lanka, it is the NSACP that has done the sexual health screenings of gay men who are being hauled before a court. It is the NSACP's forms that are being used as evidence by police for prosecutions. If the NSACP was serious about decriminalisation and ending HIV/AIDS, they would not support the police in these prosecutions. They, the Government and the Police must take responsibility for placing the lives of LGBT people at risk. 


In the national HIV response, the term MSM is often mentioned. Are MSM and Gay the same thing?

MSM stands for men who have sex with men but may not identify themselves as gay. Gay men are men who may be emotionally, sexually and physically attracted to other men and identify as gay. 


Do you think the Press should be playing a more responsible role in differentiating facts and myths?

Yes. The press and all media must take a stronger role in ensuring that they don't worsen the stigma and discrimination suffered by LGBT people. They need to understand that their misrepresentation of facts or sensationalisation of issues can cost the lives of many innocent people. 


LGBTIQ people in Sri Lanka are subject to harassment and discrimination on a daily basis. What would be your advice for the general public on equal treatment? 

LGBTIQ people have a Constitutional right to equality and non-discrimination. This right has been recognised by the Attorney General and has been upheld in several courts across the world, including India's Supreme Court. If any LGBTIQ person suffers any discrimination, they have recourse to justice in our courts. A fundamental rights case on discrimination against LGBTIQ people is waiting to be heard. But, will a victim of such discrimination come forward?