Sri Lanka

The lesbian, bisexual, transgender, and intersex (LBTI) community in Sri Lanka is heavily discriminated against. Those who challenge gender norms in Sri Lanka often face a range of abuses from state and non-state actors that compromise the quality and safety of their daily lives, and their ability to access services that are central to their realising basic human rights.

Sections 365 and 365A of the Sri Lankan Penal Code prohibit “carnal knowledge against the order of nature” and “gross indecency”, commonly understood in Sri Lanka to criminalise same-sex relations between consenting adults, in public and private spaces.

There are no specific laws that explicitly criminalise transgender people; however, under Section 399 and 402 of the Penal Code 1883 ‘cheating by personation’ is punishable with imprisonment and it criminalises transgender people.

Sri Lanka does not provide any legal recourse to transgender people to change their legal identity. There is no protection framework for intersex people.

In 2016, the Health Ministry of Sri Lanka issued policy guidelines for medical professionals on procedures for changing gender identity. Although the policy guidelines do not mandate sex reassignment surgery for gender recognition, challenges still continue with regard to their implementation.

In 2016, Sri Lanka was one of two countries where consensual same-sex acts are criminalised (another one was Kiribati) that voted against dissolving the mandate of the UN Independent Expert on violence and discrimination based on SOGI.

The Committee provided SOGIESC-focused recommendations to Sri Lanka at the 66th Session. The Committee noted that the State party’s Constitutional Assembly included sexual orientation and gender identity as a ground for non-discrimination to clarify that discrimination based on sexual orientation is prohibited under the right to equality. They were concerned about the criminalisation of same-sex relationships and how that results in women being completely excluded from legal protection, especially in the implementation of the Domestic Violence Act, and how often law enforcement officers are allowed to arbitrarily detain them.

The Committee urged the State party to decriminalise consensual same-sex relationships, and abide by the obligation of non-discrimination under the Convention.

In March 2022, in a landmark decision by the CEDAW Committee, Sri Lanka was found to be violating the rights of a lesbian and leading LGBTI activist who was subjected to discrimination, threats and abuses due to the country’s Penal Code that criminalises same-sex sexual activity.

The case was brought by Rosanna Flamer-Caldera, the Executive Director of Equal Ground, a primary LGBT organisation in Sri Lanka; and set a major legal precedent, holding that the criminalisation of lesbian and bisexual women violates the CEDAW Convention.

The CEDAW Committee stated that ‘Sri Lankan authorities have subjected Ms Flamer-Caldera to gender-based discrimination and violence, and had not taken any legal or other measures to respect and protect her right to a life free from gender-based violence, or to eliminate the prejudices to which she has been exposed as a woman, lesbian and activist.’ As a part of this judgment, the Committee urged Sri Lanka to decriminalise same-sex activity, and also to take immediate and effective action to put an end to threats, harassment and abuse.

The last State party report was submitted in 2022 and contained points on LBTI specific information. It says that the state will attempt to include sexual orientation and gender identity as a prohibited ground for discrimination, and that these grounds were included in the submissions made by the public to the Constitutional reforms in 2016 and in the submissions made by the Committee on Fundamental Rights.

The state also stated that “Article 12 (2) of the Constitution stipulates that ‘no citizen shall be discriminated against on the grounds of race, religion language caste, sex political opinion place of birth or any such grounds”. It is clear that the grounds of non-discrimination set out in this Article are not exhaustive and could cover differences pertaining to sexual orientation as well.

The Sub-Committee on Fundamental Rights appointed by the Constitutional Assembly in 2017 addresses sexual orientation as a ground of non-discrimination. The Sub-Committee Report states that no person shall be arbitrarily discriminated against on any ground including race, gender, sex, sexual orientation or gender identity”.

The new LOI from March 2023 references the decision by the CEDAW Committee and asks for specific measures to incorporate in the non-discrimination clause under article 12(2) the prohibition of discrimination on the ground of sexual orientation and gender identity as well as measure of protection to safeguard the LBTI populations from discrimination, hatred and violence, including measures supporting individuals’ right to change his/her identity and access to public health preventive services regarding prevention and treatment of sexually transmitted infections and HIV/AIDS as well as steps taken to decriminalise same-sex intercourse.