A Push To Decriminalize Homosexuality

Sashini, a transgender woman in Colombo, has formally petitioned the National Human Rights Commission to urge the government to recognize her as female by issuing her official documents that reflect her lived gender.

A strong push is being made to decriminalise homosexuality in Sri Lanka and to provide greater protection for all sexual minorities. Efforts to decriminalise homosexuality in Sri Lanka are being led by local Lesbian, Gay, Bisexual and Transgender (LGBT) activists and the New York based Human Rights Watch (HRW).

Speaking to The Sunday Leader, LGBT Advocacy Director of Human Rights Watch, Boris O. Dittrich said that the LGBT community in Sri Lanka continues to face harassment, especially in the hands of the police. He said that a report compiled by HRW based on research carried out in Sri Lanka, shows the level of discrimination the LGBT community face in the country.

Boris O. Dittrich said that he hoped UN Secretary General Ban Ki-moon would have raised the issue during his visit to Sri Lanka last week.

“Among the issues the LGBT community in Sri Lanka face are related to healthcare, housing and discrimination at work,” he said. Dittrich was in Sri Lanka last week for talks with government officials, LGBT activists and the diplomatic community.

He said that at a time when the government is looking at addressing human rights issues, the issues faced by the LGBT community must also be looked at. Dittrich said that local civil societies who are involved in campaigning for the protection of human rights must include LGBT rights as part of their fight.

He said the international community must also keep the spotlight on the issue, including through the UN Human Rights Council in Geneva.

The report on LGBT rights issues in Sri Lanka, released by Human Rights Watch, is based on interviews that Human Rights Watch conducted in four cities between October 2015 and January 2016 with 61 LGBTI people, focuses primarily on abuses experienced by transgender people—including arbitrary detention, mistreatment, and discrimination accessing health care, employment, and housing.

Human Rights Watch also spoke with 17 government officials, human rights activists, lawyers, medical professionals, and social services practitioners, and with other marginalised people, including sex workers and drug users, to understand the context and obstacles facing transgender people and MSM.

Lack of acceptance
Research was conducted with the support of Sri Lankan activists and nongovernmental organisations that work with LGBTI people, including EQUAL GROUND, Heart2Heart, and the Family Planning Association.
Additional information was gathered from published sources, including laws, United Nations documents, academic research, and media accounts.

The report also includes examples of discrimination and abuse experienced by individuals based on actual or perceived sexual orientation, many of which are related to a lack of acceptance of gender non-conformity.

In the report, HRW has recommended that the government pass comprehensive anti-discrimination legislation that prohibits discrimination, including on grounds of gender identity and sexual orientation, and includes effective measures to identify, prevent, and respond to such discrimination.

The report also calls on the government to repeal sections 365 and 365A of the Penal Code, which criminalise same-sex relations between consenting adults; section 360A, which criminalises some forms of sex work; the Vagrants’ Ordinance, which may be used to criminalise transgender people and sex workers; and the Brothels Ordinance, which may be used to criminalise sex workers.

The government has also been urged to create an independent complaints mechanism in conformity with international standards to allow victims of police abuse, including LGBTI people, to report cases of police mistreatment in a manner that guarantees full confidentiality and respect for their right to privacy.

In March 2015, Sashini, a transgender woman whose application to change her legal gender was rejected by the Registrar General’s Department, brought a complaint to the National Human Rights Commission of Sri Lanka, followed by two others in January 2016.

Responding to the first complaint, in June 2015, the National Human Rights Commission proposed a gender recognition certificate that would be accepted by all authorities for indicating gender on official documents, including the birth certificate, National Identity Card, and passport. In June 2016, the Ministry of Health mailed a circular to various health services and education institutions setting out guidance on issuing the gender recognition certificate to transgender people. As of July 2016, the National Human Rights Commission was awaiting a response to the proposed certificate from the Registrar General’s Department.

The idea of a standardised gender recognition certificate that allows individuals to change all their documents is an important step. But the draft provided to Human Rights Watch falls short of international best practice, which recommends that medical, surgical, or mental health treatment or diagnosis should not be required for legal gender change.

Changing Birth certificates
Transgender people who did manage to successfully change their birth certificates told Human Rights Watch that the Registrar General’s Department did not issue them a new certificate. Instead, it amended their birth certificates in such a way that made it obvious that the original gender designation had been changed. As Krishan, a transgender man, explained, “They cut the word ‘male’ and put ‘female” Susan, an intersex person who had the gender on her birth certificate changed from male to female, stated: “Where it stated male, they put a square mark. On the back under ‘alterations,’ they state the law and that I’ve changed my name and gender.”

Reflecting people’s lived gender in their birth certificates, which can then form the basis for changing their National Identity Card and passport, is an important step. But when the birth certificate is merely amended and not reissued, those who look at it—such as a prospective employer—can tell that a person has changed their legal gender since birth. This in turn may trigger the constant and humiliating scrutiny about gender identity that many interviewees described.

LGBTI people arrested based on their gender expression, gender identity, or sexual orientation are typically detained without proper cause or evidence, and consequently are rarely detained for extended periods of time. As a result, they may have less overall exposure to police officials in detention and may experience less abuse than Sri Lankans arrested for other crimes.

Nevertheless, nearly two dozen of the LGBTI people whom Human Rights Watch interviewed said they had suffered sexual, physical, or severe verbal abuse by the Sri Lankan police—nearly all of those reporting police abuse being transgender people or men who have sex with men (MSM). More than half of this group said that police had detained them without cause at least once. Sri Lankan nongovernmental organisations, including EQUAL GROUND and Women’s Support Group, have also documented cases of police abuse against LGBTI people and expressed similar concerns.

Several people told Human Rights Watch that LGBTI people’s experience with police depends largely on their gender expression and class background. They suggested that police target for mistreatment people who appear most vulnerable—those who are poor, involved in low-level criminal activity such as drug dealing and sex work, and unconnected to elite society—because they are more likely to get away with abuses. Targeting the most vulnerable may be true more generally corrupt and abusive police.

Police harassment
Some transgender people and MSM who are sex workers told Human Rights Watch that they felt police targeted them. Sakuni, a 36-year-old transgender sex worker in Colombo, has been arrested three times, at least once under the Vagrants’ Ordinance and once for “cheating by personation.” Each time, she said, she was not engaged in sex work.Geeth, a 35-year-old gay man in Colombo, said that police target him for arbitrary arrest because he looks ‘gay’ according to Sri Lankan stereotypes. During his most recent arrest in October 2015, Geeth pleaded with the police officers arresting him. “We earn for the day. When you falsely accuse us, we have to spend money on courts, and we lose work that whole day,” he said. “That is not our concern; take it up with the courts,” a police officer allegedly told him.Maneesha, a 26-year-old lesbian in Colombo, said that a police officer questioned her and her lesbian friend in a public park because they were together and gender non-conforming, both with short hair and dressed in jeans and shirts. To escape police scrutiny, she said, “We pretended that we don’t speak Sinhala. We spoke in English; we acted like we’re from abroad, like we have money.… If we didn’t act like that, we’d be in trouble.”

Neelanga, a 36-year-old lesbian in Colombo, said “class and gender are elements in police abuse; anyone who looks butch is a suspect.” Jake, a 34-year-old bisexual man in Colombo who was questioned by the police along with a partner in 2000, highlighted the ‘privileges and security’ that being middle class affords him. As he reflected: “Police read class into LGBT people, so my experience was much better than most”.Ajith Rohana, senior superintendent of police of Colombo-North, told Human Rights Watch that he was aware of concerns that transgender people have expressed about police mistreatment.

Specifically, he acknowledged that police have arrested people for loitering in a public place and carrying condoms. He further noted that police occasionally arrested transgender people for “cheating by personation,” which are illegal under section 399 of the Penal Code. When this happened, transgender people were generally taken to a police station for questioning and held there for five to six hours, he said. In addition, some transgender people reported verbal abuse from police officers.Rohana said that the national police training curriculum has addressed some of these concerns since 2011, initially incorporating them into refresher courses for advanced officers, and now introducing such concerns to new officers.[115] “We are teaching our officers that carrying a condom is not a crime,” he said.[116] He said that the training incorporated some of the concerns of transgender people in 2014, and felt that it has been ‘very successful’. He noted a significant drop in the number of arrests under the Vagrants’ Ordinance: from 1,755 in 2008 to 472 in 2014, although he did not specify how many of these arrests were of LGBTI people.

by Easwaran Rutnam
Source – The Sunday Leader