Case Studies

LGBT+ Equality: Demystifying Decriminalisation in Sri Lanka

May 2023 | SRI LANKA

Given that the right to privacy is a facet of the right to live with dignity, there is simply no basis for this Court to come to the conclusion that there is a constitutional obligation to criminalise homosexual activities engaged in private by consenting adults, as that is a matter that is inherently private and intimate. If Parliament wishes to decriminalise such activities this Court cannot stand in its way”.  Hon. Jayantha Jayasuriya, Chief Justice of the Supreme Court of Sri Lanka, in a historic judgement supporting the decriminalisation of homosexuality in the country.  (Case No. SC SD No. 13/2023, decided on 9 May 2023) 

Demystifying Decriminalisation

iProbono is spearheading a campaign – Demystifying Decriminalisation –  to dispel misinformation around the contents and ambit of the Penal Code (Amendment) Bill among the masses. By bringing together key stakeholders we aim to contribute towards a broad public discourse on the rights of the LGBT+ community and push for the adoption of the bill in the upcoming parliamentary debate. 

The Amendment Bill and a Historic Decision by the Supreme Court

In August 2022, Member of Parliament Premnath C Dolewatte presented a Private Members Bill to the Parliament to repeal the archaic and discriminatory laws commonly used to criminalise the LGBT+ community in Sri Lanka. During the last few months, the community has been anxiously awaiting the parliamentary debate on the proposed amendment bill, which aims to repeal Sections 365 (governing unnatural offences) and 365A (governing acts of gross indecency) of the Penal Code – laws that have led to severe discrimination against LGBT+ persons.

The proposed amendment bill was gazetted in March but was subsequently challenged in the Supreme Court as unconstitutional. 

The petition claimed that the bill creates a space for the exploitation of children, dilutes the rule of law, is likely to result in the rise of HIV/AIDS cases, and that it is contrary to the principles of Buddhism. 

Subsequently, over 20 LGBT+ activists, lawyers and civil society organisations, including iProbono Equality Law Director Aritha Wickramasinghe and Former Human Rights Commissioner Ambika Satkunanathan, challenged the petition, stating that it contained false information. 

In a historic decision, the Supreme Court, on 9 May 2023, held that the proposed bill was not in violation of any provisions of the Constitution. The Learned Justices highlighted that the arguments put forward by the petitioners lacked merit and that the proposed bill ensures the equal protection of all persons before the law, irrespective of their sexual orientation, thereby enhancing fundamental rights guaranteed in the Constitution and enabling all citizens to live in society with dignity. 

Our Work on Promoting Equality for the LGBT+ Community

iProbono’s work with the community in Sri Lanka has given us a glimpse into the lives of LGBT+ persons, who have been forced to conceal their identities from their families, friends, coworkers, and the general public in fear of being ostracised. We have witnessed survivors being subject to cruel and inhumane treatment at the hands of law enforcement officials and government agents. There have been several unlawful arrests and forced anal and vaginal examinations.

iProbono’s network of lawyers has received specialised training to support the victims of discrimination. Through our Access to Justice Programme, iProbono’s lawyers have successfully secured a precedent-setting order from the Magistrate’s Court where it was recognised that being homosexual was not a disease of the mind. 

As part of our Demystifying Decriminalisation campaign, we are launching a Twitter Spaces series from 13 May 2023, featuring LGBT+ activists, human rights activists, and legal professionals including Former Human Rights Commissioner Ambika Satkunanathan, iProbono Equality Law Director Aritha Wickramasinghe, and Attorney-at-Law from the Child Protection Force Milani Salpitikorala to disprove the false narrative around the bill. It will showcase how the proposed law will enhance legal protection for a community that has long been subject to cruel treatment and victimisation. 

By discussing how decriminalisation will uplift an entire community, we want to effect a change in the hearts and minds of not only the members of Parliament but as many Sri Lankan citizens as we can. 

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