On Wednesday 15 November 2017 the UN reviewed Sri Lanka’s record on human rights as part of the country’s third Universal Periodic Review (UPR) under the Human Rights Council.
The Sri Lankan government received seven specific recommendations to amend sections 365 and 365A of the Penal Code, which targets LGBTIQ people in consensual, adult relationships. The following UN Member States made explicit recommendations with respect to decriminalisation: Honduras, Canada, Netherlands, Sweden, Uruguay, Australia and Brazil.
A further 6 states recommended that Sri Lanka adopt measures to combat the discrimination faced by the LGBTIQ community. The following UN Member States made explicit recommendations with respect to combating discrimination against the LGBTIQ community: Honduras, Italy, Portugal, Uruguay, Argentina and Brazil.
In response to issues raised with respect to the LGBTIQ community, Deputy Solicitor General Nerin Pulle underlined the government’s commitment to reforming Sri Lanka’s penal code to ensure that it meets international human rights standards.
Mr. Pulle added that the right to non-discrimination on the grounds of sexual orientation and gender identity is ‘implicit’ in the Sri Lankan constitution and, with the reform, will soon be made an ‘explicit’ guarantee in law.
He then quoted from a recent ruling of the Supreme Court of Sri Lanka, which attested: “The contemporary thinking [is that] consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation”. SC Appeal No.32/11 case was prosecuted under section 365A of the Penal Code of Sri Lanka. In the concluding paragraphs the Supreme Court made the notable remarks which can be accessed in its entirety at http://www.supremecourt.lk/images/documents/sc_appeal_32_11.pdf.
Mr. Pulle told the UPR: “Despite social, political and cultural challenges that remain with respect to reforming law, Sri Lanka remains committed to law reform and guaranteeing non-discrimination on the grounds of sexual orientation and gender identity.”
In response to the Sri Lankan Government’s UPR commitments, Rosanna Flamer-Caldera, Executive Director of EQUALGROUND, said:
“We commend our government’s commitment to reforming the Penal Code and amending the Constitution to explicitly include sexual orientation and gender identity as grounds of non-discrimination.”
No one deserves to be targeted by the law because of who they are or whom they love. Our government has shown significant resolve in pledging to address the criminalisation faced by the Sri Lankan LGBTIQ community and guarantee them basic rights that have for so long been denied. Whether LGBTIQ or not, we are all entitled to the full enjoyment of all human rights. We look forward to the government fulfilling on this commitment.
We welcome the Government of Sri Lanka’s willing and continued engagement with the Human Rights Council and the UPR process, and commend in particular our government’s commitment to the full realisation of human rights for all citizens in the country. We are pleased that in this regard our Government specifically addressed the questions and concerns raised by the UN Member States about the continued criminalisation of consensual same sex sexual conduct and the discrimination and violence faced by the LGBTIQ community in Sri Lanka.
We are very grateful for the efforts of the international community who continue to raise their concerns over the treatment of the LGBTIQ community in Sri Lanka and greatly appreciate the recommendations that have been made today.”
Notes to Editors
For more information about the story or to request an interview with Rosanna Flamer-Caldera, please contact Sriyal Nilanka at firstname.lastname@example.org or email@example.com
EQUALGROUND uses the law and other mechanisms to protect the basic rights of LGBTIQ people to live with dignity, free from discrimination and abuse.
People must not be persecuted as a result of their gender identity or sexual orientation. We believe in the equal protection of the rule of law and in the superior legal framework of the Sri Lankan Constitution.
We use that legal framework to effect long-term change that will improve the lives and life chances of ordinary LGBTIQ people currently living under the oppression of discriminatory laws.
We use political advocacy and public engagement to expand understanding of the oppression the Sri Lankan LGBTIQ community faces, and work towards ending it.
3. About the Universal Periodic Review (UPR)
The Universal Periodic Review is a significant innovation of the UN as it involves a review of the human rights records of all 193 UN Member States every 5 years.
On Wednesday, 15 November 2017 the United Nations Human Rights Council reviewed the human rights situation of Sri Lanka. This was Sri Lanka’s third Universal Periodic Review (UPR); its last review took place in 2012.
In 2012, Canada and Argentina, respectively, had recommended that Sri Lanka decriminalise and strengthen measures to eliminate all discriminatory treatment based on sexual orientation and gender identity, and the Sri Lankan delegation was questioned about any progress in this area as part of Wednesday’s review.
4. LGBTIQ people
Lesbian, gay, bisexual, trans, intersex and questioning (LGBTIQ) people are those whose sexual orientation or gender identity does not match convention.
They are doctors, politicians, street sweepers and everything in between.
They are our neighbours. They are our daughters and sons, brothers and sisters, parents and grandparents. They are ordinary Sri Lankans who are a part of every subsection of society.
Months of advocacy and lobbying came to fruition as the Universal Periodic Review of Sri Lanka concluded in Geneva today. While in 2012 Argentina and Canada recommended decriminalisation of same sex relationships and non-discriminatory policies to be placed to protect the LGBTIQ community of Sri Lanka, this year saw an unprecedented 9 countries recommending decriminalisation and non-discriminatory policies to safeguard LGBTIQ rights in our country. We would like to thank Honduras, Canada, Italy, the Netherlands, Portugal, Sweden, Uruguay, Argentina, Australia & Brazil for making recommendations on decriminalisation of same-sex conduct and protection against discrimination based on one’s sexual orientation and gender identity during the Universal Periodic Review of Sri Lanka today. Our gratitude also extends to Brazil, Germany, the United States of America and Norway for raising advanced questions to the GOSL on behalf of the LGBTIQ community of Sri Lanka.
We would also like to commend the commitment extended by the Government of Sri Lanka during its review today to reform discriminatory laws, include Sexual Orientation and Gender Identity in the fundamental rights chapter of the Constitution and add non-discriminatory policies to abolish discrimination based on Sexual Orientation and Gender Identity. (Downoad the audio file of the statement made by the GOSL on the issue of LGBTIQ at the 28th session of the Universal Periodic Review of Sri Lanka – AUD-20171115-WA0000.m4a)
EQUALGROUND’s Executive Director Rosanna Flamer-Caldera said, “We are confident the Government of Sri Lanka will stand by its statements and not only accept these recommendations but also implement them as soon as possible. This was indeed a historic day in the struggle for equal rights for the LGBTIQ community of Sri Lanka as this was the first time in the history of the UPR and other treaty body reviews, that the GOSL has made such a positive and committed statement on behalf of the LGBTIQ community of Sri Lanka.”
EQUALGROUND would like to thank The Center for International Human Rights (CIHR) of Northwestern Pritzker School of Law and The Global Initiatives for Human Rights (GIHR), ILGA, COC Netherlands, and Human Dignity Trust, for their continued support during this UPR process in assisting EQUALGROUND in advocating for the rights of the LGBTIQ community of Sri Lanka.
In response to the Sri Lankan Government’s National Human Rights Action Plan, which was released yesterday (2nd November 2017), Rosanna Flamer-Caldera, Executive Director of EQUALGROUND, said:
“We welcome the advancement to Sri Lankan citizens’ human rights protections today and commend in particular our government’s commitment to protecting those discriminated against as a result of their gender identity.
We at EQUALGROUND believe that all Sri Lankans should be afforded the freedom to live their lives without fear of oppression, violence or discrimination. This includes those who are targeted as a result of their sexual orientation, a group conspicuously missing from the action plan.
The work we do everyday exposes us to the reality of those living under threat of violence because of whom they love. These are vulnerable communities that need and deserve protection from the state, to the same level as all other Sri Lankans.
We hope the government sees fit to re-dress this missed opportunity and to include sexual orientation where appropriate as a protected characteristic. Human rights are for all of us.”
The Government of Sri Lanka published the much-anticipated National Human Rights Action Plan for 2017-2021 on the 2nd of November 2017 through the Ministry of Foreign Affairs website. EQUALGROUND commends the Government of Sri Lanka’s attempts to advancing the rights of Sri Lankan citizens. We are especially happy to see that the Government has taken measures to protect the rights of Trans persons by including non-discrimination based on ones Gender Identity in the Fundamental Rights Chapter of the Constitution. This advancement would help us address the various forms of harassment the Trans community faces from society as well as law enforcement on a regular basis.
It is however unfortunate to see that regardless of the Government‘s acknowledgement to International treaty bodies and the Government’s commitment in the National Report to the Universal Periodic Review of Sri Lanka (A/HRC/WG.6/28/LKA/1, Section IV:A P7) to eliminate discriminatory provisions set forth by the Penal Code (Section 365 & 365A criminalises carnal intercourse against the order of nature and acts of gross indecency committed in private or public, which is widely understood to target same sex activities), as well as guarantee non-discrimination on the basis of Sexual Orientation, the NHRAP 2017-2021 has failed to follow up by not including Sexual Orientation as a basis for protection against discrimination in the fundamental rights chapter of the constitution.
The NHRAP 2017-2021 also calls to review and amend the right to privacy in the Sri Lankan constitution (3.1.2) which in an essence should stand for protection against Section 365A of the Penal Code, that warrants the criminalisation of same-sex activities committed in private. However, we are sceptical that such provisions would guarantee the right to privacy of person of minority sexual orientations.
Section 6.6.4 of the NHRAP 2017-2021 includes an action to eliminate discriminatory practices within the health care setting based on ones perceived or actual sexual orientation. This shows that the Government of Sri Lanka is aware of such discrimination occurring, at least in the healthcare sector. But, the performance indicator for this action is inadequate because it simply measures the success of elimination of discrimination by the number of programs conducted. Furthermore, no agency has been appointed to overlook the programme. Any person facing discrimination based on their sexual orientation in the healthcare sector has no redress in the eyes of the government without an explicit protection under the fundamental rights chapter of the constitution.
The President and the Prime Minister strongly believes that this Action Plan is a constructive step by the Government of Sri Lanka to protect, promote and fulfill the human rights of all Sri Lankans. They further comment on how the plan was spear headed by civil societies and UN agencies yet the NHRAP fails to address the Governments own commitments to the UN mechanisms and the recommendations they have received from them. The Committee on Economic, Social and Cultural rights in their concluding observations during the 61st session 2017 (E/C.12/LKA/CO/5 Sec C:14 P4) recommended that the Government of Sri Lanka “expand the non-discrimination clause in article 12(2) of the Constitution to include sexual orientation.”
Contradiction of this sort only proves that the Government of Sri Lanka is yet to acknowledge persons with minority sexual orientations as people of the country; who as active contributors to society, require to be protected just as anyone else. We have the right to live lives free of criminalisation and discrimination based on our sexual orientations as well as our gender identity and expressions. It’s about time that 134 years of criminalisation and systematic discrimination of the LGBTIQ community comes to an end and we are acknowledged as a part of a vulnerable group which requires explicit protection by the Government of Sri Lanka.
EQUALGROUND is proud to announce that our Executive Director Rosanna Flamer-Caldera was awarded the Zonta Women of Achievement Award for Social Impact last Sunday night the 17th September 2017 at the Cinnamon Grand Hotel. Since 1985, the Zonta Club 1 of Colombo has actively sought to celebrate women who have excelled in their respective fields and have contributed towards national development.
Upon receiving the award Rosanna acknowledged that “this is not simply a win for me and the past seventeen years of my work, but it is a milestone in my career to know that the LGBTIQ community has been recognised as an important part of society, solidifying that our communities’ issues are just as paramount as any other marginalised group in this country.”
With the work Rosanna and EQUALGROUND has been doing, the LGBTIQ community has reached a point of recognition that would have been controversial ten years ago. We are now beginning to see slowly but surely, that the tides are changing. Businesses and mainstream society are beginning to see that it is time to accept and support the LGBTIQ community.
Rosanna’s had this message to share on receiving the award; “I am dedicating this award to every LGBTIQ person & any kid out there who has faced some form of verbal, physical or emotional harassment – stand tall, bow down to no one and know that you create the path you take. There are opportunities and options available, always. Even if it feels that your world is on fire and you feel helpless and cornered. It is up to you what you make of the situations that are presented to you. Take every stone that is thrown at you and build your castle, one stone at a time. It is what I have done and continue to do, every day!”