Illegality, discrimination of LGBTIQ community

Citizens of Sri Lanka are currently facing systematic stigma and discrimination based on their sexual orientation and/or gender identity (SOGI), where authorities often ignore or fuel such abuse of lesbian, gay, bisexual, transgender/transsexual, intersex and questioning (LGBTIQ) individuals.

Consenting adults could face imprisonment for sexual activity, individuals are not protected by law from domestic violence, workplace harassment and unfair job dismissal can go unpunished – the list goes on.

These are just a few of the plethora of problems the LGBTIQ community constantly encounter in Sri Lanka.

Multiple discrimination against LGBTIQ people are often rationalised through Sri Lanka’s Sections 365 and 365A of the Penal Code – ambiguous and archaic British Colonial laws, which are interpreted to criminalise the sexual activity of consensual same-sex adults.

Likewise, Section 399 of the Penal Code sees the ill-treatment transgender individuals are meted through “cheating by impersonation”.

Beyond this illegality lies a by-product; a lack of a Bill of Rights acknowledgement of anti-discrimination, and non-discrimination constitutional recognition for LGBTIQ persons. All of this despite our being signatory to multiple United Nations (UN) Conventions (ICCPR, ICESCR, CEDAW, CAT) aimed at protecting all citizens, regardless of their race, gender, gender identity or their sexual orientation, according to the Yogyakarta Principles’ globally acknowledged interpretations.

These UN conventions indicate that all human beings are born free and equal in dignity and rights – which are inalienable and are the foundation of freedom, justice and peace in the world. More specifically, the Yogyakarta Principles, which apply International Human Rights Law to the protection of LGBTIQ persons, indicate that the treatment of the LGBTIQ community in Sri Lanka is indeed in violation of the many UN Conventions and treaty bodies Sri Lanka is signatory to.

If you would like to know more about this, information about the Yogyakarta Principles and EQUAL GROUND’s publication ‘Human, Right?’ can be found at the bottom of this article.

In October 2014, during the IPPCR review of Sri Lanka, the Sri Lankan government claimed Article 12 of the Sri Lankan Constitution regarding non-discrimination includes the protection of LGBTIQ persons, however, there is no explicit mention of such group beyond the vague language of, ‘any one of such grounds’, within which the Sri Lankan State claim SOGI is covered.

This public recognition of Article 12, although a step in the right direction, does not realistically translate to the experiences encountered by the LGBTIQ community. Instead, many find themselves victims of widespread societal and institutionalised homophobia and transphobia reinforced by law enforcing officers and arms of the legal system.

For example, unfounded hearsay can be used for interrogation and to keep LGBTIQ persons in police custody, and in many cases, individuals have been forced to sign a statement admitting their ‘guilt’. There are reports of this statement being shown to family and used as a form of bribery or for coercion – adding stress not only to their familial relationships and reputation, but leads for some to lose their jobs or be forced to leave educational institutions.

Many governments around the world now have legislations and constitutions that guarantee the rights and non-discrimination based on SOGI, ensuring equality and respect of all their citizens. A shining example of outstanding protection of the LGBTIQ community comes from one of our fellow South Asian nations, Nepal.

After decriminalising homosexuality in 2007, Nepal last year joined only two other countries in enshrining full equal rights protections for LGBTIQ persons in their constitution. This extremely progressive move makes them a leader not only in South Asia, but the Asian continent.

This human rights issue intersects with matters of family and other socio-cultural persuasions, as well as the economic realm. As outlined in a 2015 Kaleidoscope report 2015, ‘Speaking Out’, LGBTIQ persons suffer extreme levels of violence – emotional, sexual and physical, both in public and at home, with no legal protections or worse; risk being charged for being homosexual or gender non-conforming.

To illustrate this, even though the introduction of the Domestic Violence Act No.34 of 2005 does not explicitly exclude protection for those in same-sex relationships experiencing domestic violence, there are potential consequences for individuals seeking redress due to the illegality of same-sex relations and fear of persecution.

Victim-survivors of same-sex domestic violence cannot rely on the police or courts for protection and must be extremely cautious in their interactions with the police or other law enforcement mechanisms. If you think you or someone you care about is a victim of domestic violence, EQUAL GROUND’s own publication “Stepping Out of the Shadows – Same Sex Domestic Violence in Sri Lanka” may be able to assist you in getting help.

Also, if you have experienced sexual or physical violence because of your SOGI, NexGen is an anonymous tool created by EQUAL GROUND to increase the reporting of incidents to the Sri Lankan government.

NexGen and is part of EG’s strategy to advocate for protection of people with different SOGI, but please note, this is not an emergency service. Details of both of these services can be found at the bottom of the article.

More broadly, the concept of being LGBTIQ is often wrongly mistaken for an alternate lifestyle that is nothing more than a choice made by the individuals themselves. Having a LGBTIQ status immediately puts an individuals’ head on the ‘chopping block’, being publicly LGBTIQ could cost them dearly.

Homophobic and transphobic violence is ever present in Sri Lanka; it has caused a lot of suffering, driven many to the brink of suicide, and has even resulted in deaths. A Sri Lankan LGBTIQ persons’ internalised homophobia and transphobia alone is enough to make their lives unbearable.

Because of the very prominent discrimination endured by those who are not heterosexual, many lesbians and gays are forced to remain ‘closeted’ by keeping their true identity hidden from public and private life.

The fear of being disowned by one’s own family keeps many young adults from being open with them.

Due to the aforementioned internalised homophobia, combined with the general revulsion the South Asian society has towards homosexuals, many struggle to come to terms with their own sexual orientation. What follows this unreasonable discrimination is often brutality.

Homophobia, which loosely describes the hatred and aversion an individual has towards homosexuals, on many occasions escalates to violence. Prevalence of social norms and the power it has over the lives of Sri Lankans makes it the governing power to which all must abide by. These deep rooted teachings of what is considered ‘right and wrong’ makes even the most carefully researched, globally certified and accepted studies that homosexuality is perfectly normal, irrelevant and bizarre.

Thus, Lesbians and gays often only have the choices of either being out and subsequently disowned by their families, be forced to marry against their will, risk being subjected to conversion therapy and/or conversion rape; or to suppress their blatant instincts, have a heteronormative marriage, and be unhappy for the rest of their lives. The psychological stress of suppressing one’s sexual orientation can result in anxiety, self-harming, suicidal tendencies, and clinical depression.

Often, most homophobic parents with little understanding resort to conversion therapy. From practitioners of black magic, to psychologists who choose societal norms over good mental health practice, there is no shortage of con artists willing to push their homophobic agenda while swindling these desperate parents.

Conversion therapy is equal parts brutal as well as unsuccessful. Illicit name calling, beatings, torture, sexual assault and murders are some of the ways LGBTIQ persons are brutalised to no end. How can culture justify the endless torment and fear Sri Lankan LGBTIQ persons are forced to endure every waking moment of everyday.

Transgendered persons are on the receiving end of some of the most heinous anti-LGBTIQ violence in Sri Lanka. South Asia has very strict gender norms to which each sex is confined.

Straying from the imposed norms guarantees discrimination whatever the person’s sexual orientation or gender identity may be.

Being uncomfortable with the sex to which they were born and identifying and desiring to be that of the opposite, is a concept so alien and frightening to many Sri Lankans that they seemingly resort to not only mistreating such individuals, but even assaulting them. The amount of reported cases of transphobic violence is heart breaking and frightening. From aggravated assaults to gang rape, the heinous crimes transgender persons face seem to be endless and inhumane.

Sensitising of the general Sri Lankan community about LGBTIQ issues and rights is lacking.

Parents, teachers, relatives, peers, as well as co-workers of a transgender are often confused, appalled, disgusted, and almost always ill equipped to properly handle an individual coming out to them as transgender.

To make matters worse, the representation of transgender persons in Sri Lankan tele-dramas are completely inappropriate and inaccurate – creating and sustaining an extremely cruel and offensive stereotype. Male to female transgender women having been very unfairly stereotyped as promiscuous are very often sexually assaulted because of their gender identity.

Many transgendered persons are groped in the crotch and/or bust area by strangers to find out whether or not they are a “real man” or a “real woman”. This revolting violation of their basic human rights is tragically a daily occurrence for some, and highlights the transphobia of many cis-gender people.

Many transgender individuals encounter the incorrect use of pronouns by family members and associates due to either a lack of understanding, or a lack of acknowledgement and acceptance of that individual as a transgender person. Some people intentionally use incorrect pronouns to ensure public humiliation.

The lack of gender neutral bathrooms is also a very big problem in Sri Lanka. It can be very dangerous for a female-to-male be identified as a transgender man in the men’s bathroom and vice versa.

The violence faced by transgender individuals is not limited to strangers or their associates. Many are also severely persecuted by family members. A person’s basic expression of individuality is deeply interconnected with their gender identity and sexual orientation, and much like suppressing your sexual orientation, the consequences of suppressing your gender identity are negative.

The gender norms that are forced upon us the minute the blue or pink blanket is wrapped around an infant extends to adulthood, where our clothes, our words and our behaviour must reflect the sex we were born. The negative consequences of gender fluidity are a result of the social constraints that the lack of LGBTIQ sensitisation programs exacerbates.

Furthermore, intersex people are often mistaken for being transgender because of their biological ambiguity at birth. Intersex people are born with both male and female sex organs, and often doctors will assign that individual a gender at birth – by chance this gender may be correct, but equally that individual may realise they have been assigned the wrong gender. This does not make them transgender but are mistakenly discriminated against for being so.

A lack of anti-discrimination laws also sees negative economic consequences. Just in the same way some employers discriminate against women, religious beliefs or different ethnicities in the workplace, LGBTIQ individuals also encounter multiple discrimination, but without the legislation or constitutional recognition to protect them.

Lack of protection in the workplace sees discrimination against LGBTIQ individuals not only by fellow staff members and employers, but also from their customers. Reports from LGBTIQ individuals of sexual, mental and/or physical harassment are abundant.

Simplified, this situation is two-fold. Firstly, not only are the mental and often physical injuries incurred by an individual an impingement on their freedoms and a serious human rights violation, it also becomes an unnecessary and expensive burden on already strained public health services, funded by tax payers. This is true not only for workplace discrimination, but discrimination of all forms, in all aspects of an individual’s life.

Secondly, it results in scores of unemployed citizens solely on the basis of their sexual orientation and/or gender identity – costing the economy greatly. It is estimated that six to 10 percent of Sri Lanka’s population is LGBTIQ. When a society restricts the working capacity of six to 10 percent of their population, it missed out on a large portion of income generated by taxes paid by those people.

To put this into perspective, when comparing the figures of the cost of homophobia and transphobia in India to Sri Lanka, a potential loss of Rs. 124 million per annum of net productivity is identified – the equivalent of our aviation industry.

To further illustrate this, a study released by M.V Lee Badgett et al, “The Relationship Between LGBT Inclusion and Economic Development: An Analysis of Emerging Economies”, finds that when comparing developing countries, the better the legal and social LGBTIQ rights, the higher the Gross Domestic Product (GRP) per capita for that country (with all other factors taken into consideration).

Reasons for the economic exclusion of LGBTIQ persons is numerous. Findings in the same study by M.V Lee Badgett et al, can be almost identically paralleled to EQUAL GROUND’s experiences through their work with LGBTIQ people in Sri Lanka. The most evident reasons stem from cultural norms and a lack of protection, limiting their freedoms. These consist of police officers unjust treatment in the form of arbitrary arrests, violence and coercion – taking them away from work; higher rates of physical and psychological violence at home or in the community – restricting work through physical or psychological injury; discrimination in schools and universities by teachers and other students – restricting access to education and skills; and finally, most obviously – workplace discrimination.

Fortunately, despite the lack of legal anti-discrimination support from the government, the private sector is in the early stages of leading a progressive movement in the way of workplace discrimination. Sri Lanka’s largest conglomerate, John Keells Holdings, after beginning an 18 month LGBTIQ Equality in the Workplace training with EQUAL GROUND in November last year, are now making inclusive changes to their workplace policy to protect the rights of their LGBTIQ employees.

In a competitive market, it is only a matter of time before other companies will follow in the footsteps of this progressive employer to further tap into the under-valued resource that is LGBTIQ individuals.

However, it is not just the private sector that is hearing our voice. The conversation at government level in both our country and in our region is changing. In India, the abolition of Section 377 of their Penal Code (similar to our Sections 365 and 365A), which vaguely criminalises homosexuality, is currently being debated – opening up dialog for much needed reform.

Closer to home, our government is eagerly trying to re-sign the Generalised Scheme of Preference Plus (GSP+) – a European trade agreement for developing countries, which in 2010, Sri Lanka was eliminated from for not upholding the human rights of female garment workers. This time around, due to the criminalisation of and lack of anti-discrimination laws to protect LGBTIQ people, they are once again facing barriers for eligibility – thus creating space for change.

During a time where the Sri Lankan State is drafting a new Constitution and Bill of Rights, it is now more than ever that reform to decriminalise and protect LGBTIQ persons from discrimination could be a reality. It is suggested that Sections 365/365A and 399 of the Penal Code are repealed or amended to no longer criminalise adult consensual same-sex activity, and adult gender expression or identity respectively.

Further, it is recommended to not only have the language in the Constitution changed to explicitly include non-discrimination based on SOGI, but also in the Bill of Rights; ensuring non-discrimination within the private sector also.

It is through these simple changes that we can finally be on the road to positive reform that is inclusive of all members of Sri Lankan society, regardless of their sexual orientation and/or gender identity.