Please note: Any names with an asterisk(*) have been changed for privacy reasons.
Sri Lanka remains one of the world’s 70+ countries that continue to criminalise homosexuality. Conviction under section 365, “carnal knowledge against the order of nature” and 365a, “gross indecency” of the Penal Code carries a maximum penalty of 10 years imprisonment.
- Map of countries in which same-sex sexual relations are still criminalised as of January 2019. Note that of the approximately 70 countries, 35 of them are members of the British Commonwealth, including Sri Lanka.
A Colonial Legacy
The criminalisation of same-sex relations has remained since Sri Lanka’s previous British colonial rule, which prohibited any sexual behaviour considered to be ‘unnatural’. In practice, as an LGBT rights activist and academic noted during a presentation to us at ICES, it is not “black and white” whether or not sex is actually criminalised, due to the ambiguous wording of the articles. Partly because of this, as well as a lack of political will, prosecutions under Section 365 have been rare, with only two cases making it to court in Sri Lanka’s history.
Nevertheless, the continued presence of these laws on the books inevitably affects local understandings of sexuality and attitudes towards homosexuality. Human rights lawyer and openly queer woman, Isha*, explained that these laws are Victorian, even when Victorian laws are not followed in England anymore. Yet, she continued, “colonialism is very real and is a very real influence…our society is shamed.”
By way of illustration, Isha* noted how understandings of marriage have changed in the country over time. Historically, Sri Lanka was a sexually open culture. People cohabited, but did not marry, and polyamory was not unheard of. It was only with colonial rule that the concept of marriage as a sacred and formal union between one man and one woman was introduced and other forms of relationships became unacceptable and stigmatised. “We have lost our way at some point”, Isha* reflected, noting that “this is largely to do with colonialism.”
- Isha*, Human Rights Lawyer
Given that these laws could be viewed as a colonial hangover, one might wonder why Sri Lanka has not yet removed them from the statue books. Part of the problem is that the country’s legal system does not allow for judicial review, meaning the Supreme Court is unable to rule laws invalid, only refuse to enforce them.
- Rosanna Flamer-Caldera, Equal Ground
However, when we talked to Rosanna Flamer-Caldera (above), co-founder and Executive Director of prominent LGBTQI+ organisation Equal Ground, she highlighted the role of populist politics. Although there is no personal benefit to politicians from depriving the LGBTQI+ community of their rights, by portraying homosexuality and gender variance as ‘unnatural’ or a ‘western concept’, the government can make use of “divide and conquer” as a tactic, manipulating the populace for political favour. Rosanna contends that the same tactic was deployed against the Tamils and is now being used to target Christians and Muslims to stoke fear of the “other” in their respective communities.
Recent comments made by President Sirisena that he has “done away with that rubbish human rights agenda” as well as making homophobic comments about his political rivals have only served to further entrench marginalisation of the LGBTQI+ community. But when asked if there was any hope for the Section 365 to be abolished, Rosanna’s reply was quick: “Unless there was, we would shut up shop!”
- LGBT rights activists protest homophobic remarks by the President in Colombo in November 2018 (photo via Pink News)
Being LGBT: Young People’s Experiences
We shouldn’t have a pride if there’s nothing to celebrate.
In Kandy, we met LGBTQI members of Chathra, a grassroots activist organisation that holds meet-up events for those in the community, at a movie evening. The film shown was a Hollywood depiction of a young man’s coming out story called ‘Love, Simon.’
After the film, the meet-up moved to a local bar (described jokingly by one member of the group as the “height of Kandy nightlife,” because it is the “only thing open past 9 pm”), we spoke with some the attendees about their experiences and opinions about the current political climate and LGBTQI+ rights.
While they were willing to talk to us, many of them would not permit their real names to be used or their faces shown, for fear of being outed. Being gay in Sri Lanka remains difficult, with homosexuality still heavily stigmatised, especially outside of Colombo. Individuals who are open about their non-heterosexuality can pay a high price for being ‘out’, including discrimination, prejudice and violence.
These realities mean that being out is rarely an option, especially for young people who have yet to have the means to be fully independent. “You can’t be out and professional” commented especially at the beginning of your career. Ravathi*, for example, moved to Kandy from Jaffna for university. He currently lives in a student hostel. When asked if he has “come out” about his sexuality, he told us that all of his LGBT+ friends know and none of his other friends do, and that he will tell his family when he has graduated from university and is self-sufficient.
Despite this, Ravathi* openly supports LGBT+ rights when discussing the matter with his family, believing that it’s a basic human right. When questioned about his beliefs by his family, he draws comparisons with animal rights: he believes in animal rights, but he doesn’t need to be an animal to hold those beliefs.
Talking about the future, we were told that many of the young people in the queer community intend to migrate. After all, as someone explained, “if they can’t be free in this country, why should they stay?”
In practice, however, this is a privilege only few can afford (and ironically, if one can afford it, then one is likely to have sufficient power and influence to be openly gay and remain safe and secure). This points to the fact that, as Prabashana explained, homosexuality is inherently a class issue, in the same way that it is a caste issue within ethnicities. Many members of rural communities will never experience the privilege of coming out and will marry a member of the opposite sex to live their “sadly ever after” existence, as he put it.
The Future: Love vs Nationalism
Everyone we spoke to agreed that human beings all feel love in the same way regardless of their sexual orientation or gender identity, and that the continued criminalisation of homosexuality is a violation of their basic human rights.
However, a recurring theme throughout our conversations with members of the queer community was the toxic views that many members of the mainstream have towards the queer community. Referred to the nationalistic idea of “preserving culture” and that is used as a tool for politicians. She argued that there is too much importance placed on culture and religion, but in fact this is an “illusion of culture.” She continued, “if your culture is violent and deeply repressed, then I don’t know what you’re talking about.”
There is still a long fight ahead to ensure that the human rights of LGBTQI+ people are recognised and protected in Sri Lanka. Yet after speaking to some of the young LGBTQI+ people who will eventually wield power and influence in different spheres of Sri Lankan society, there is every reason to hope that things can improve, and Sri Lanka will move a step closer to making this universal human right a reality – something that is essential for a safe, peaceful and democratic society.