Sri Lanka: Amendment in Police Guidelines as a necessary first step towards ensuring access to justice for LGBTIQ persons
On November 2nd 2023, Sri Lankan LGBTIQ rights organization and member of ILGA Asia, EQUAL GROUND achieved a milestone victory for LGBTIQ persons’ access to justice. Based on a complaint made to the Court of Appeal by EQUAL GROUND, the Inspector General of Police (IGP) of Sri Lanka agreed to amend a Police Circular from December 2022 titled “Matters to be considered when dealing with transgender people and people who have undergone gender transition” to include lesbian, gay, bisexual, intersex and queer individuals. The original circular was intended to serve as guidelines for law enforcement in their interaction with and treatment of transgender persons when carrying out their duties and combat discrimination against the LGBTIQ community. Responding to EQUAL GROUND’s case filed before the Court of Appeals, the government released a communication assuring the revision of the Circular to reflect a more inclusive and respectful language.
The original Circular laid out certain progressive guidelines including prohibiting physical, verbal or psychological abuse by police officers during detention or arrest. Further, the Circular calls for transgender women who have undergone gender-affirming care to be investigated and detained only in the presence of a woman warden or officer. The Circular also states that persons who do not choose to disclose their transgender identity should not be needlessly prosecuted under Section 399 of Sri Lanka’s Penal Code which has been used to arrest and abuse transgender persons for the crime of “cheating by personation” in the past. The Circular also states that police should not conduct anal or vaginal examinations “without a formal complaint” or “reasonable grounds” – a practice denounced as a form of violence and torture against LGBTIQ individuals.
The Circular further notes that being in possession of condoms or other contraceptives is not an offence and should not attract any charges under Sri Lanka’s Vagrants Ordinance, a law that has been historically used to arrest, harass and detain LGBTIQ persons. This is a welcome step, as the discriminatory treatment of LGBTIQ persons at the hands of law enforcement in Sri Lanka has been well documented with routine arrests, detention without cause, and physical and sexual violence. Men found, or perceived, to be engaging in same-sex sexual activity in public have been subjected to forced anal examination and torture by police officers in a gross violation of their human rights. While gender recognition in Sri Lanka has been legal since 2016, consensual same-sex relations between adults is still criminalized. Broadly classified as “unnatural offenses” and “any act of gross indecency” same-sex relations are criminalized under Section 365 and 365A of the Sri Lankan Penal Code, with a punishment of imprisonment of up to 10 years.
Progress for LGBTIQ rights in Sri Lanka has been hard-won and incremental. In 2018 founder of EQUAL GROUND, Rosanna Flamer-Caldera won a case at the Committee on the Elimination of Discrimination against Women (CEDAW) challenging the criminalization of bisexual and lesbian women in Sri Lanka under Section 365A. The Committee ruled in favour of Rosanna declaring that decriminalization of consensual same-sex relations is “essential to prevent and protect against violence, discrimination and harmful gender stereotypes”. The Committee called upon the Sri Lankan government to repeal Section 365A and pass comprehensive measures to protect LBTI individuals from discrimination. As of 2023, the Supreme Court of Sri Lanka has allowed a private member’s Bill calling for decriminalization to be tabled before the Parliament. The Supreme Court ruled that amending Section 365 & 365A of the Penal Code is not inconsistent with the Constitution of Sri Lanka.
“Although change is taking a long time to happen in this country, I am confident that, step by step, and using every legal and other means available to us, we will change the tide of homophobia and challenge discriminatory laws in Sri Lanka that still shackle the LGBTIQ community," said Rosanna Flamer-Calder.
ILGA Asia welcomes the amendment of the police circular to include and address the concerns of all LGBTIQ individuals as an important first step towards full equality. ILGA Asia calls upon the Sri Lankan Government to decriminalize adult consensual same-sex sexual relations in Sri Lanka and reaffirm equal protection of all individuals before the law. Further, ILGA Asia remains steadfast in its belief that without comprehensive anti-discrimination laws, decriminalization and police guidelines alone are not enough to secure the rights and freedoms of the LGBTIQ community in Sri Lanka.
For further queries, please contact:
Ajita Banerjie, Senior Research and Policy Officer (ajita@ilgaasia.org)
Nadine Hassan, Senior Communications Officer (nadine@ilgaasia.org)
