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Legal Framework
The Sri Lankan Penal Code criminalises homosexuality, stipulating a minimum of 10 years imprisonment for ‘unnatural offences’:
Penal Code (as amended by the Penal Code Amendment Act, No. 22 of 1995)
- Article 365: Unnatural offences: ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of either description for a term which may extend ten years, and shall also be punished with fine and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.’
- Article 365A: Acts of gross indecency between persons: ‘Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of any act of gross indecency with another person, shall be guilty of an offence and shall be punished with imprisonment of either description for a term which may extend to two years or with a fine, or with both and where the offence is committed by a person over eighteen (18) years of age in respect of any person under sixteen (16) years of age shall be punished worth rigorous imprisonment for a term not less than 10 years and not exceeding 20 years and with a _ ne and shall also be ordered to pay compensation of amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such a person.’
EQUAL GROUND, an NGO seeking human and political rights for the LGBTIQ community in Sri Lanka, submitted a Shadow Report to the United Nations Human Rights Committee for consideration under its 110th session in Geneva in 2014. The report stated that ‘Violations of the Covenant rights of LGBT individuals in Sri Lanka include, notably, the following:
- Criminalization of same-sex sexual conduct (violations of Articles 2(1), 2(3), 17, and 26);
- Arbitrary arrests and detentions and abusive and violent police behaviour (violations of Articles 7, 9, and 10);
- Suppression of freedom of expression, assembly, and association (violations of Articles 19(2), 21, and 22); and
- Failure to protect against discrimination, hate crimes, and forced marriages by private actors (violations of Articles 2(1), 7, 9, 23(3), and 26).’
Based on this report, the UN Human Rights Committee asked the Sri Lankan Government to explain the following:
‘(a) What has the government of Sri Lanka done to amend article 12 of Sri Lankan Constitution to include SOGI?
(b) Why has the Government not decriminalised Homosexuality?
(c) What is the Government intending to do to protect LGBTI persons in Sri Lanka?’
The Government of Sri Lanka gave a written response to the UN Human Rights Committee’s questions. The government of Sri Lanka stated that LGBT persons in Sri Lanka were constitutionally protected from discrimination. The government responded that under Article 12 of the Sri Lanka Constitution, it ‘recognizes non-discrimination based on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds as a Fundamental Right. This measure protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities.’
The government also responded that ‘Article 12.1 ensures equality for sexual orientation and gender identity’ and that under ‘Article 12.2 laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional’ and that ‘Sections 365 and 365A [of Sri Lanka’s Penal Code] do not target any particular group but are there to protect public morality.’ EQUAL GROUND considered the responses a positive step, although the Sri Lankan Government failed to directly answer the questions posed by the UN Human Rights Committee.
LGBT persons are unable to register a civil partnership or marriage in Sri Lanka. In April 2014, the Sri Lankan Government, like various other governments, turned down a demand to legalise same-sex marriage, advanced by the British Government as a condition for obtaining aid funds.
In April 2011, under the judgment of Chief Justice Iftikhar Chaudhury, transgender persons were provided with the legal recognition of a ‘third gender’ the khwaja sira. In November 2011, the Court ordered the electoral commission to collect data and register transgender persons as voters.
In September 2012, again under Chief Justice Iftikhar Chaudhry, transgender people were confirmed as having equal rights to all Pakistani citizens, including the right not to be deprived of inheriting property from their families. The order is to be communicated to all courts of Pakistan and strictly enforced.
In 2018 the Transgender Persons Protection of Rights (TPPR) ACT was passed aiming to provide for protection, relief and rehabilitation of rights of the transgender persons and their welfare and far matters connected therewith and incidental.
The TPPR Act defines transgender person as a person who is:
“(i) Inter-sex (Khunsa) with mixture of male and female genital features or congenital ambiguities, or
(ii) Eunuch assigned male at birth, but undergoes genital excision or castration; or
(iii) a Transgender Man, Transgender Woman, Khawajasira or any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex ‘they were assigned at the time of their birth.”
The Act ensures the right of transgender persons to be recognized as per his or her self-perceived gender identity, including official registration and changing their name in all governmental departments once they have attained the age of 18.
The Act establishes no discrimination against transgender persons when recognizing the right to education, employment, vote, hold public office, health, assembly, access to public places, inherit and property. Moreover, it guarantees Fundamental Rights and the duty of the government to ensure they are respected. In case of aggrievance, transgender persons may complain to the National Commission for Status of Women and National Commission of Human Rights (NCHR).
Pakistan is not a signatory to the 1951 Refugee Convention or the Convention relating to the status of Stateless Persons 1954. Pakistan is a signatory to the ICCPR and ICESCR, but made a reservation to Article 40 in the former which provides in section 1 that parties to the covenant agree to submit reports on the progress made in enforcing and extending the rights recognised in the ICCPR.
For more detailed information on the protection of LGBTQI+ rights in Sri Lanka, visit the Sri Lanka ILGA World Database.
According to OutRight International, Sri Lanka’s Supreme Court condemned the Penal Code provisions criminalising same-sex relations the laws in 2016, however, no movement has been made to repeal them. At the 112th Session of the UN Human Rights Committee in October 2014, the International Gay and Lesbian Human Rights Commission (IGLHRC) presented a shadow report on ‘Violence Against Lesbians, Bisexual Women and Transgender Persons in Sri Lanka’. The research identifies frequently experienced types of violence in the public sphere (by state and non-state actors), violence in the private sphere (by family members and intimate partners), and discrimination from employers, medical professionals and financial institutions. The report concludes that the lack of specific anti-discrimination provisions regarding sexual orientation and gender identity in Sri Lanka’s Constitution places the LGBTI community at a disadvantage in accessing rights, protections and legal guarantees.
In September 2013, human rights activists reported that the Sri Lankan Government had stepped up its repression of LGBTI citizens. It was reported that the government was ‘orchestrating a smear campaign to isolate gays from the rest of society by portraying them as paedophiles and criminals.’ Human Rights Watch issued a report in 2016 called ‘All Five Fingers are Not The Same’, detailing the challenges in Sri Lanka to improving the legal status and lived experience of those who challenge norms around gender identity.
Based on various other reports, the Canadian Immigration and Refugee Board published information on the treatment of LGBTIQ persons in Sri Lanka, stating that there is ‘no legal protection or recourse for the LGBT community in Sri Lanka; LGBT persons are routinely arrested, sometimes for just walking on the street, and are subject to blackmail, extortion, physical and mental violence, rape etc. LGBTIQ persons don’t report crimes against them because they are further marginalized and victimized when the police get to know they are Queer. Members of the LGBT community are subject to assault and extortion by police officers.’ Furthermore, in June 2010, an article in the Sri Lankan daily newspaper the Daily Mirror quoted the Sri Lankan Prime Minister as stating it was ‘not wrong’ for LGBT people ‘to seek rights’. However, according to the WSG shadow report, LGBT support organizations received no response from the Prime Minister after sending a joint letter asking for a meeting.
EQUAL GROUND published a report in 2011 on homophobic violence and hate crimes in Sri Lanka. Along with a classification of types of violence faced by LGBTI persons, the booklet also contains seventeen case studies illustrating the violence faced by the LGBTI community in Sri Lanka.
The Women’s Support Group’s (WSG has since dissolved) 2011 shadow report on the Status of LGBT Persons submitted to the Committee on the Elimination of All Forms of Discrimination Against Women highlights barriers to freedom of assembly and political organising. The report states: ‘In July 1999 when WSG announced its intention of holding a conference for lesbians, it was met with fierce public opposition. One of these protests came in the form of a Letter to the Editor published by The Island, which went so far as to advocate the rape of women attending the conference by a team of convicted rapists. The filing of a complaint against the newspaper instead led to the Press Council of Sri Lanka condemning lesbianism as sadistic and salacious’.
The report also emphasises the consequences of the criminalization of LGBTI people: ‘It paves the way for police and anti-gay groups to brand all LBT persons as ‘perverts’ and criminals. The fear of being apprehended and identified as a person of non-normative sexual behaviour or practice leads to a cycle of silence by members of the LBT community, by their families and friends and by the society as a whole and makes them vulnerable to a range of abuses including extortion, intimidation, unlawful arrest and detention, harassment and torture.’ Secondly, criminalisation renders LGBT people vulnerable to violations of their human right to health, evinced by cases where members of the LGBT community have been exploited and faced abuse by health professionals taking advantage of the discriminatory laws in place.
With regard to the media, the report references numerous homophobic and transphobic articles. The report indicates that key female players on the national sports teams who are speculated to be lesbian have lost their positions.
In terms of social and economic benefits, the report explains how the inability of LGBT persons to register a civil partnership or marriage prevents them from accessing a whole range of benefits that partners in heterosexual marriages enjoy. Examples include same-sex partners being denied the right to apply for housing loans; difficulties for same-sex partners to rent properties; State Retirement Pension Funds being only accessible either on grounds of marriage or prior to retirement; not allowing adoption of children or official guardianship; the inability of Sri Lankan citizens to pass on their citizenship to their same sex partners, and the consequent inability to enjoy the economic, social and cultural rights that a family is entitled to; as well as recognition of partnership when one of the parties dies.
This is an application by the respondents in civil partnership, for leave to remain in the UK, outside the requirements of the Immigration Rules, on the basis of their private and family life with each other pursuant to Article 8 ECHR. The respondents did not make an asylum or humanitarian protection application at an Asylum Screening Unit, but in their grounds of appeal they included Refugee Convention and humanitarian protection grounds in addition to the principal Article 8 ECHR claim. First-tier Tribunal Judge Parkes had dismissed the appellants’ appeals in a determination promulgated on 20 July 2012. The Upper Tribunal (Immigration and Asylum Chamber) dismissed the appeals on all grounds on 28 January 2015.
Organisations supporting LGBTQI+ individuals
EQUAL GROUND is a non-profit organisation seeking human and political rights for the Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning (LGBTIQ) community of Sri Lanka. They are committed towards safety for all LGBTIQ individuals and provide opportunities for self help including mental well-being, economic, social and political empowerment, access to health, education, housing and legal protection for the LGBTIQ community. They offer a phone counselling service and host an annual event called Women On Top to celebrate International Women’s Day. EQUAL GROUND has hosted and facilitated the first South Asian LB women’s Conference in Sri Lanka. Amongst other services, EQUAL GROUND holds annual PRIDE celebrations in Colombo, and provides counselling, health campaigns and other workshops for the LGBTIQ community.
COJ is an LGBT organisation founded in 1995. It has been a pioneer in addressing the issues related to LGBT rights in Sri Lanka. It strives to create and facilitate an environment where society will accept, respect and support people with non-conforming sexualities to live with freedom and dignity. Their work focuses on advocacy for protection of the rights of LGBT people and decriminalisation of consenting adult homosexuality; networking; and providing peer based outreach services. They operate two drop-in centres in Colombo and Kandy. They also conduct film screenings, host reading room facilities and social get-togethers, provide peer counselling, STI/HIV testing and treatment, and provide free condoms and information on STI/HIV through peer outreach workers.
The Venasa Transgender Network came together in 2015 to promote the legal, health and social well-being of LGBTQ people mainly focusing on transgender persons. Since their founding, they have built a national network of transgender and intersex people and supportive legal, health and activist allies. Their key activities mobilize the trans community to stand up for their rights and access their legal and health entitlements, build consciousness amongst parents and families of trans people, and build allies in the media to create positive images and narratives about trans lives. They are also working to expand their networks of legal and health professionals and engage in advocacy to simplify and standardize procedures for legal gender recognition.
Country of Origin experts in LGBTQI+ rights
Ms Rosanna Flamer-Caldera is an internationally recognised LGBT rights activist based in Sri Lanka. She has been the co-secretary general of International Lesbian and Gay Association (ILGA) FROM 2003 to 2008 and was the first female representative from Asia to be on the executive board of ILGA. Ms Flamer-Caldera is the Executive Director of EQUAL GROUND, a non profit Trust founded by her in 2004, advocating LGBT rights in Sri Lanka. She is also a co-founder of the Women’s Support Group (WSG), a LBT organisation established in 1999. Ms Flamer-Caldera is also on the board of the NGO Advisory Committee for the Berlin-based Hirschfeld Eddy Foundation and an advisor for the US-based organisations the Global Fund for Women and the Urgent Action Fund.
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Last updated May 2023