As part of their ongoing Responsible Tourism program, The Travel Concierge Sri Lanka have pulled together the facts to give the LGBT+ community peace of mind about travel & related law in Sri Lanka.
Many people believe that it is illegal to be gay or lesbian in Sri Lanka. If you go by an old British colonial law (of the 1880s), it is illegal for gay men to have a sexual relationship. If you go by the same law, heterosexuals can also be considered to be doing an unlawful act.
Fortunately today and reviewed relatively recently (2019), any form of discrimination against LGBT people is illegal in Sri Lanka and the country lends itself to being the perfect destination for a holiday romance.
The law that could be used against gay and lesbian people is sections 365 and 365A of the penal code.
These laws prohibit ‘carnal intercourse against the order of nature between man, woman and animal’ and ‘acts of gross indecency between anyone’
Sri Lankan courts have rarely decided on what these laws mean. But regional courts have held it to include anal sex, oral sex or any form of sex without a reproductive purpose. The offence can be committed by both homosexual and heterosexual people.
Does that mean engaging in sex for pleasure is a criminal offence? Actually, yes. If you are having sex without the intention to have children you could be committing a criminal offence. This can mean that even using a condom or taking the contraceptive pill is a criminal offence.
Many regional convictions under this law have been against heterosexual and not homosexual people.
In 2014 the Attorney General declared that discrimination against LGBT people is unconstitutional, that LGBT people are protected under the Constitution and that no law can be used against them in a discriminatory manner. This declaration has been repeated in 2017 and 2019. In 2016, the Supreme Court held that two gay men who consented to sexual relations should not be punished under law.
Further detail:
Article 365 of the Sri Lankan Penal Code that criminalizes same-sex sexual acts remains on the books with up to ten years in prison and fines but is not well enforced Sri Lanka.
The country has implemented anti-discrimination laws for homosexuals as part of its constitution and human rights action plan. It has recognised transgender people for a very long time and has been making it easier for transgender people to identify and transition in recent years. A number of reports state that the concept of third gender is non-existent in Sri Lanka.
These sections of the Penal Code refer to unnatural offences and acts of gross indecency. They state that the act should be “punished with rigorous imprisonment for a term not more than ten years with a fine. As of 2019 Global News claims that the country is not known to have convicted anyone under those provisions since 1948, but in 1995, the section was amended slightly to expressly prohibit “gross indecency” no matter the gender of the participants.
In November 2017, Deputy Solicitor General Nerin Pulle stated that the government would move to decriminalize same-sex sexual activity. The country’s constitution does not provide the Supreme Court the powers to completely expel a law from the books. An attempt by the government to include its repeal into the human rights action plan was prevented by opposition from the United People’s Freedom Alliance.
Supreme Court
The Supreme Court of Sri Lanka has recognised that “the contemporary thinking, that consensual sex between people of the same sex should not be policed by the state nor should it be grounds for criminalisation”. However this opinion statement is not a law.
Government
Both the socialist government of Rajapaska and the conservative government of Sirisena have stated ” that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional”.
Section 399
This section criminalized gender impersonation and is often used against transgender people. It can used in situations where a person has converted to another gender yet bears a different gender on their documentation.
Section 07 / 1841 Vagrants Ordinance
This act criminalises soliciting and acts of indecency in public places. It has been used against sex workers and sexual minorities. A maximum term of six months and a fine of 100 rupees is imposed as punishment.
Constitutional Protections
The Government of Sri Lanka claimed to the United Nations Human Rights Committee on 7–8 October 2014 that they think sexual minorities should be protected under existing generic anti-discrimination laws provided in the Constitution.The Government of Sri Lanka stated that such protections were “‘implicit’ in the Sri Lankan constitution and that the Government has not written a law giving ‘explicit’ rights yet.
Discrimination against sexual minorities still remains a problem. Several lawyers and charities have called for specific wording in the constitution stating that discrimination against sexual minorities is illegal.
Law
In 2017, the Government also decided to update their Human Rights Action Plan with an addendum that bans discrimination against someone based on his or her sexual orientation. However, no laws were put in place following this statement.Both the socialist government of Rajapaska and the conservative government of Sirisena have stated ” that discrimination against LGBT people was unconstitutional and that the application of sections 365 and 365A in a manner that was discriminatory against LGBT persons was unconstitutional”.
The current legal framework of Sri Lanka mostly derives from the European/Christian constructs which was imported into the island during the colonial era. Most of it being predominantly British law and the prior colonial Roman-Dutch law. The most famous of these discriminatory laws is the now dormant (and variously reported as decriminalised) Section 365 that criminalizes homosexual sex, but other laws against gender impersonation and pimping can also be considered to discriminate against LGBT people. Further problems with the colonial legal framework include the lack of protections and supports for the sexual minority community, including the lack of specific wording fighting discrimination against sexual minorities nor the recognition of transgender and third gender concepts (who have been technically discriminated against through the Vargrants Ordinance).The Supreme Court and the various Governments of Sri Lanka have however attempted to remedy this situation by including sexual minorities within generic anti-discrimination clauses and attempting to set dormant a variety of laws[though the colonial legal code does not provide the Supreme Court with the power to create or repeal law).
The political parties of Sri Lanka are formed through collations of numerous smaller parties reminiscent of the party politics in former colonial power Netherlands. Confusion and constant movement can be found in terms of their stances to homosexuality. Both the conservative government of Srisena and the socialist government of Rajapaska have stated that discrimination against sexual minorities is unconstitutional and that Section 365 cannot be legally applied to consensual homosexual sex, but in contradiction to this the socialist collation refused to allow the conservative government’s attempted deletion of Section 365 from legal texts. A number of non-governmental organisations, lawmakers and religious organisations have come out in favour of sexual minorities, and openly homosexual gay and transgender lawmakers can be found in the parliament and the government. A variety of public institutions including the health service and the police have been introducing internal commitments to improve living conditions for sexual minorities.
Sri Lankan societies generally takes a modestly unobtrusive and traditionalist view of homosexuality and certain traditions exist for the promotion of transgenders (albeit third gender appears to have escaped the island despite it having roots historically within Sri Lankan culture) and consequently these laws have mostly been applied loosely (if ever) and discrimination by police (and the like) is often associated with corruption and/or attitudes towards sexual promiscuity which are applied to heterosexuals as well. A number of issues remain untouched by general discussion including that of the status of sexual minorities within the military service, and intersex rights have mostly escaped both mainstream discussion and discussion by LGBT lobbies. Other laws and legalities that can negatively affect sexual minorities are more widely discussion in the Sexual minorities in Sri Lanka article. In 2004, Sherman De Rose became the first recognised gay man from Sri Lanka and he is the founding member of the Gay Movement of Sri Lanka.
For further information about travelling freely in Sri Lanka, contact The Travel Concierge Sri Lanka anz@ttcsrilanka.com
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