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A discourse against discrimination

30 Mar 2022

  • International body weighs in on complaint raised by LGBTI activist and State’s response
BY Sumudu Chamara  Marking an important milestone in Sri Lanka’s lesbian, gay, bisexual, transgender, and intersex (LGBTI) movement, based on a complaint filed by a local activist, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) recently stated that a number of steps, including those aimed at reforming discriminatory laws and practices and raising awareness about the LGBTI community, must be taken.     These recommendations were made last week, and a statement by the Office of the UN High Commissioner for Human Rights (OHCHR) of the UN Human Rights Council, read that the CEDAW had found that Sri Lanka has violated the rights of complainant EQUAL GROUND Executive Director Rosanna Flamer-Caldera. The communication had been submitted by Flamer-Caldera, while Sri Lanka had been named as the State Party. The initial submission had been made on 23 August 2018, and the decision regarding the submission had been adopted on 21 February 2022. Complaint Flamer-Caldera had argued that the criminalisation of female same-sex sexual activity and the concomitant potential for arrest and prosecution amount to discrimination on the grounds of gender and sexual orientation, in violation of her right to non-discrimination. In addition, she had stated that while Section 365A of the Penal Code of 1883 applies equally to men and women, it is by virtue of the intersecting forms of discrimination that they face as women and as sexual minorities that lesbian and bisexual women suffer a compounded impact from the said provision. Adding that the criminalisation of same-sex sexual activity violates the jus cogens principle of equality and non-discrimination under the Convention on the Elimination of Discrimination against Women, she said: “Lesbian and bisexual women suffer significant societal discrimination and stigmatisation. The criminalisation has created significant barriers to accessing justice as well as a culture where discrimination, harassment, and violence against lesbians have been allowed to flourish. As such, I have been subjected to threats and harassment based on my sexuality and my non-conformity with stereotypical roles and appearances for women, causing me to fear for my own safety and that of my family. As a human rights defender, I have been particularly vulnerable to discrimination, as demonstrated by the vilification, monitoring, surveillance, and harassment to which I have been exposed.” She had claimed that the failure to address this discrimination amounts to a violation of Article 2(f) and 2(g) of the Convention. In her complaint, she had explained Sri Lanka’s situation concerning lesbian and bisexual women, noting: “The criminalisation of same-sex sexual activity between women exacerbates gender-based violence (GBV) against women, including at the hands of their community and family. It creates a context in which lesbians and bisexual women are forced into heterosexual marriages, in the absence of a criminal prohibition of marital rape, and suffer violations of their right to sexual and bodily autonomy. Violations of the rights of LGBTI persons are underreported and are not properly investigated or prosecuted. The criminalisation has left me vulnerable to vilification by the authorities and threats of violence by private actors, in breach of the State Party’s obligation to respect and protect my right to be free from violence. I have been targeted as the most prominent defender of the human rights of LGBTI persons in Sri Lanka, in addition to the precautions I have to take as a woman. Thus, I have to put in place security protocols for my protection and that of my family, organise events in safe spaces, and ensure that the location of my work is not made public. Given my activism and known sexual orientation, I fear falling victim to the continuing practice of ‘white van disappearances’.” She claimed that she has been subjected to harmful stereotyping on account of her sexual orientation, including the accusation that she is spreading pedophilia, as well as vilification, harassment, and threats based on such stereotypes. Noting that the criminalisation of same-sex sexual conduct between women violates the rights to autonomy and choice underpinning Article 16 of the Convention, she had affirmed that sexual orientation is linked to the right to individual self-determination and sexual autonomy, in accordance with her own choice and convictions.  “The criminalisation brings consensual private activity into the public domain and thus violates the rights to privacy, dignity, and personal integrity, as it allows police officers to enter a household on the mere suspicion that two consenting women are in an intimate relationship, and to investigate such aspects of private life and to detain me,” she had argued. “While Article 126 of the Constitution (which refers to the fundamental rights [FR] jurisdiction and its exercise) allows the Supreme Court (SC) to grant relief, it must be read together with provisions precluding a review of enacted legislation. The State Party does not comment on the impossibility of conducting such a review, nor does it provide any examples of successful constitutional challenges to the validity of a criminal law. I invoke the Committee’s concern that there is no opportunity for judicial review of legislation predating the Constitution. Additionally, there is no requirement to address the non-judicial remedies invoked by the State Party,” the OHCHR’s statement read. Stating that in 2016, the SC upheld convictions under Section 365A of the Penal Code, she had said: “The State Party’s reference to the possibility of a change to the law is irrelevant to the admissibility of the communication. Moreover, this observation amounts to an acceptance of the law’s discriminatory nature.” Among the facts presented by Flamer-Caldera, it had been mentioned that she is a lesbian, and had suffered discrimination and abuse due to being a lesbian. After she started actively working for the LGBTI community, she had frequently faced threats and faced abuse from the media and the public, according to the report. “Flamer-Caldera submits that she has no means to challenge Section 365A of the Penal Code of 1883, as the Constitution explicitly prohibits any constitutional challenge to the validity of enacted legislation, as confirmed by the State Party. In 2016, the SC confirmed the validity of Sections 365 and 365A of the Penal Code in SC Appeal No. 32/11 and upheld the conviction of two men,” it was further noted. State Party’s response The State Party, however, had argued that the communication in question is inadmissible, and that the author has failed to exhaust domestic remedies, as she has not engaged in any domestic procedure.  Regarding the State Party’s observations concerning the submission’s admissibility, the CEDAW’s decision read: “It observes that Article 126 of the Constitution provides a right of direct access to the SC to seek redress for violations of FR by the Executive or administrative authorities. Thus, the SC has rendered many judgments in which it has ascertained violations of FR by public officials and provided for compensation. Moreover, claims of violations of such rights by private actors can be brought before ordinary courts. On the basis of Article 4(d) of the Constitution (which refers to the exercise of the people’s sovereignty), the SC has also enabled public interest litigation. In SC Appeal No. 32/11, the SC acknowledged ‘contemporary thinking, that consensual sex between adults should not be policed by the State nor should it be grounds for criminalisation’. While acknowledging the domestic law in force, the court held that imposing custodial sentences would be inappropriate in cases where the impugned acts were between consenting adults. Further, Article 140 of the Constitution (which refers to the power to issue writs, other than the writ of habeas corpus) provides for the availability of writs before the Court of Appeal.” What is more, the State Party had observed that the Human Rights Commission, the Public Petitions Committee of the Parliament, the Parliamentary Commissioner for Administration, and the National Police Commission receive and inquire into complaints about human rights violations and official decisions, and that the criminal justice system provides for numerous legal processes for the protection of persons, including the payment of compensation to victims of unlawful arrest or detention. Furthermore, it added that additionally, legislative action can be challenged by way of pre-enactment review. “The State Party submits that the communication is insufficiently substantiated for the purpose of admissibility, as Flamer-Caldera invokes the Convention in very general terms, without specifically explaining the alleged violations,” the statement further read. Observing that it is committed to reforming the Penal Code of 1883 in order to ensure that all offences contained therein comply with its human rights obligations, the State Party added that it has recognised before the human rights treaty bodies that the right to equality and non-discrimination implicitly includes non-discrimination on the ground of sexual orientation. It had further pointed out that an ongoing constitutional reform process includes the consideration of a recommendation by the Parliamentary Subcommittee on FR to explicitly guarantee non-discrimination on the ground of sexual orientation. However, in response to the State Party’s response, Flamer-Caldera had disputed the claim that she had failed to exhaust domestic remedies, and argued that none of the measures indicated by the State Party would allow her to challenge the validity of Section 365A of the Penal Code. Recommendations After taking into account the facts presented before it, the Committee had made a number of recommendations to the State Party. Concerning Flamer-Caldera, it recommended that the State Party takes immediate and effective action against the threats, harassment, and abuse to which Flamer-Caldera has been subjected, including through the adoption of preventative and protective measures and, where appropriate, initiate criminal procedures to hold those responsible to account, takes all appropriate measures to ensure that Flamer-Caldera and her organisation can carry out their activism safely and freely, and that it provides Flamer-Caldera with appropriate reparation, including adequate compensation, commensurate with the gravity and the ongoing consequences of the violations of her rights. It also issued several general statements regarding the overall situation in Sri Lanka. They are, decriminalising consensual same sex-sexual conduct between women having passed the age of consent with respect to Section 365A of the Penal Code of 1883; providing effective protection against GBV against women, including by adopting comprehensive legislation against discrimination against LGBTI women; providing adequate protection, support systems, and remedies, including reparation, to LGBTI women who are victims of discrimination; ensuring that victims of GBV against women, including LGBTI women, have access to effective civil and criminal remedies and protection, including counselling, health services, and financial support, in line with the guidance provided in the Committee’s general recommendations; collecting statistics on cases of hate crimes and GBV against LGBTI women; effectively addressing discrimination against LGBTI women in the workplace; taking specific and effective measures to ensure a safe and favourable environment for women human rights defenders and female activists; providing training to law enforcement agencies on the Convention, the Optional Protocol thereto and the Committee’s general recommendations; and to raise awareness of the human rights of LGBTI women and so that crimes with homophobic undertones committed against LGBTI women will be understood as GBV or hate crimes requiring active state intervention. Moreover, it read that in accordance with Article 7(4) of the Optional Protocol, the State Party should give due consideration to the views of the Committee, together with its recommendations, and submit to the Committee, within six months, a written response, including information on any action taken in light of those views and recommendations, and that the State Party is requested to have the Committee’s views and recommendations translated into the official languages of the State Party, to publish them and to have them widely disseminated, in order to reach all sectors of the society. The issue of various forms of discrimination against LGBTI persons in Sri Lanka has been going on for decades. Even though countries, like India, which have a Penal Code considerably similar to Sri Lanka’s, have amended laws discriminating this community, and a large number of other countries have done the same, Sri Lanka still enforces these discriminatory laws. This is happening in a context where this community continues to face a large number of various other forms of issues due to their sexual orientation and/or gender identity/expression. The authorities’ endeavours to reform outdated laws should focus on this 1883 law as well.  


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