By: Isuru Parakrama
“The sin of sodomy is so prevalent in this kingdom of Kotte that it almost frightens us to live here. If one of the prominent men of the kingdom is reproached for not being ashamed of such an ugly vice, he replies that they do everything that they see their king doing, for this is their custom.“
Those were the words of a Portuguese messenger from Sri Lanka to their Governor João de Castro during the ruling of King Buwanekabahu the VII (1525 – 1551) [Portuguese Encounters With Sri Lanka And The Maldives Translated Texts From The Age Of The Discoveries – Edited By Chandra R. De Silva]
June 20, Colombo (LNW): In recent times, Sri Lanka has witnessed significant debates concerning the rights and recognition of LGBTQIA+ individuals. The Supreme Court of Sri Lanka’s recent ruling, which was unfavourable to certain clauses aimed at promoting equality based on gender identities and sexual orientations, has further highlighted the challenges faced by the LGBTQIA+ community in the country.
The argument develops that promoting gender equality in a manner by which people of all genders should be given equal opportunities for the benefit of rights promotes same-sex marriage, in what they describe as ‘a threat to cultural and traditional values’ of Sri Lanka.
President Ranil Wickremesinghe criticised the court’s decision in Parliament, which led to accusations of contempt of court from various MPs.
This political backlash underscores the contentious nature of LGBTQIA+ rights within the legislative framework of Sri Lanka. Criticising Sri Lanka’s apex court’s ruling on affairs does threaten judicial independence, but the situation has been exacerbated by the reactions of nationalist, racist and homophobic groups, whose inflammatory comments have been widely reported in the media, fuelling further persecution against LGBTQIA+ individuals.
The two legislative drafts under scrutiny—the Gender Equality Act and the Empowerment of Women Act—aim to address various forms of discrimination and promote equality. The Empowerment of Women Act seeks to ensure the empowerment of women by eliminating gender-based violence and providing equal opportunities in various spheres of life, as outlined in its objectives and provisions.
However, these acts also implicitly touch upon the broader issues of gender identity and sexual orientation, which remain contentious topics in Sri Lankan society.
The role of the media in shaping public perception cannot be overstated. In Sri Lanka, media coverage of LGBTQIA+ issues often mirrors the societal prejudices and biases that exist.
Following the Supreme Court’s ruling and President Wickremesinghe’s criticism, certain media outlets amplified the views of nationalist, racist and homophobic groups, thereby reinforcing negative stereotypes and fostering a hostile environment for LGBTQIA+ individuals.
This type of reporting not only perpetuates discrimination but also emboldens those who seek to marginalise and harm the LGBTQIA+ community.
Sri Lankan queers never demanded the right-to-marriage
LGBTQIA+ individuals in Sri Lanka face multifaceted challenges, ranging from legal discrimination to social ostracism. The lack of legal recognition and protection means that many are vulnerable to violence, harassment, and limited access to essential services.
The community’s struggle for equality is compounded by cultural and religious norms that often reject non-heteronormative identities. Definitely not all lesbian, gay or bisexual individuals demand a constitutional framework ensuring the so-called same-sex marriage.
Marriage is a broader concept to be argued or discussed upon, as Sri Lanka, with its rich cultural diversity, recognises various types of marriages that reflect its multi-ethnic and multi-religious society. The main types of marriages in Sri Lanka include civil marriages, religious marriages, customary marriages, and foreign marriages. Nowhere do they explicitly exclude a union between two people of the same sex.
Civil marriages in Sri Lanka are governed by the Marriage Registration Ordinance. These marriages are performed by a Registrar of Marriages and are legally binding under Sri Lankan law. Couples from different ethnic and religious backgrounds often opt for civil marriages to ensure their union is recognised legally. The process involves registering the marriage with the appropriate government authority, ensuring all legal requirements are met.
Religious marriages are solemnised according to the rites and customs of the couple’s faith. The primary religions in Sri Lanka—Buddhism, Hinduism, Islam, and Christianity—each have their own traditions and ceremonies for marriage.
Customary marriages follow the traditional practices of Sri Lanka’s different ethnic groups, particularly among the Tamil and Sinhala communities. These marriages often involve elaborate ceremonies and rituals passed down through generations. Although primarily cultural, they are usually followed by civil registration to ensure the marriage is legally recognised.
Marriages conducted abroad between Sri Lankan nationals or between a Sri Lankan national and a foreigner can be recognised in Sri Lanka. For legal recognition, such marriages must be registered with the Sri Lankan consulate or the Department of Registrar General upon returning to Sri Lanka. This ensures the marriage is acknowledged under Sri Lankan law.
Cut-off penis? Nonsense!
Contradictory to sentiments made by certain groups, not all transgender individuals intend to undergo gender-affirmation surgery. It should also be noted there are three steps of transition for individuals who identify themselves as transgender and wish to transition; Medical Transition, Legal Transition, and Social Transition. In 2016, legal provisions were provided for transgender individuals of age above 18 seeking either one or more forms of transition to receive a Gender Recognition Certificate (GRC) from a licenced consultant psychiatrist practicing in Sri Lanka to officially change their gender in legal documents, without having to undergo surgery. These clinics are still available in selected government hospitals, in stark contrast to what certain extremist MPs and civil groups suggest as ‘sex-change businesses’ operating in Sri Lanka influenced by ‘western norms’.
Sections 365 and 365A of the Penal Code of Sri Lanka prohibits sexual acts against the ‘order of nature’ labelling them as acts of ‘gross indecency’ whilst failing to provide adequate definition for either. These clauses fail to provide any recognition of diverse sexual orientations, gender identities, gender expressions, or sex characteristics (SOGIESC), further harbouring their vague nature to be misinterpreted. Meanwhile, section 399 of the Penal Code prohibits ‘cheating by impersonation,’ a clause which has often been misinterpreted to constitute persecution against transgender individuals.
Despite the Attorney General’s Department’s repeated claims before the United Nations of Article 12 of the Constitution recognising the rights of queer individuals, such clauses have often been abused by law enforcement officers to harass, persecute and even prosecute LGBTQIA+ individuals.
As of March 2023, 62 member states of the United Nations still criminalise consensual same-sex relationships in law, with two states criminalising such conduct in practice, as disclosed by the International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA). The Penal Codes of many Asian states were influenced by the once infamous Indian Penal Code formulated by Lord Macaulay in 1860 reflecting Great Britain’s 16th century Buggery Act. The “buggery”, or “sodomy” laws introduced by the British during the colonial era aimed the so called “need to protect British soldiers from being led astray by the toxic and overly erotic oriental culture” of Asia and the Middle East. Any cultural evidence suggesting the dismissal of same-sex relations in a South Asian country like Sri Lanka, therefore, remains highly elusive.
The real struggle of queer individuals in Sri Lanka is not a grapple against the government demanding matrimonial benefits from law, or authorisation of a ‘penis cut-off’, but equal protection under a legislative reform to be recognised as equal citizens without being subjugated to discrimination.
Despite these challenges, there have been efforts by various non-governmental organisations and civil society groups to advocate for the rights of LGBTQIA+ individuals. These groups walk forward seeking support, raising awareness, and lobbying for legislative changes that would offer greater protection and equality for all, regardless of one’s sexual identity.
Addressing the plight of LGBTQIA+ individuals in Sri Lanka requires a multifaceted approach, in which legislative changes, such as those proposed in the Gender Equality and Empowerment of Women Acts, are crucial first steps.
However, these must be accompanied by broader societal changes, including education and awareness campaigns to combat prejudice and discrimination. The Supreme Court of Sri Lanka has ruled that the enactment of the ‘Gender Equality’ Bill is inconsistent with Article 12 of the Constitution, but with certain amendments can be passed into law by a simple majority in Parliament. The same Supreme Court last year delivered a special determination that consensual same-sex sexual relations between adults do not violate the Constitution, and any bill proposing decriminalisation, therefore, can be passed into law by Parliament. The Supreme Court ruling, therefore, in my opinion, has been misinterpreted.
Building a more inclusive and accepting environment must include fostering dialogue, challenging harmful stereotypes, and ensuring that media reporting is responsible and fair. Only through such comprehensive efforts can the struggles of LGBTQIA+ individuals be alleviated, paving the way for a more just and equitable society in Sri Lanka.
