In a major judgment issued this week, a United Nations treaty body called on Sri Lanka’s government to repeal its law criminalizing adult, consensual same-sex conduct – including between women.
The case was brought under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by Rosanna Flamer-Caldera, an LGBT rights activist who faced harassment and discrimination for her sexual orientation and human rights advocacy on behalf of sexual and gender minorities.
The judgment by the UN Committee on the Elimination of Discrimination against Women concerned Sri Lanka’s Penal Code, a relic of British colonial rule that dates to 1883. Section 365 punishes “carnal intercourse against the order of nature” with up to 10 years in prison and a fine. Section 365A punishes “any act of gross indecency” with up to two years in prison and a fine.
These provisions are widely understood to criminalize consensual sex between same-sex partners. Section 365A originally criminalized same-sex relations between men; however, the provision was amended in 1995 after the law was criticized for being discriminatory on the basis of sex, to include same-sex relations between women.
Many countries only criminalize same-sex relations between men, and at least 38 countries criminalize same-sex conduct regardless of sex or expressly criminalize sexual conduct between women. At least 10 countries have, since 1986, explicitly enacted laws that criminalize sex between women as well as men, sometimes perversely framing this as a gesture toward equality – such as in the case of Sri Lanka.
Around the world, laws that criminalize same-sex relations are being repealed as courts and governments recognize they are discriminatory and harmful – including the Indian Supreme Court striking down penal code section 377 in 2018.
In a 2016 report, Human Rights Watch documented that Sri Lanka’s penal code casts a shadow over LGBT people’s lives, impacting their ability to access health care and housing, and creates pressure to conceal and conform their identities.
The CEDAW committee judgment noted that “the criminalization of same-sex sexual activity between women in Sri Lanka has meant that [Flamer-Caldera] has had difficulties with finding a partner, has to hide her relations and runs the risk of being investigated and prosecuted in this context.”
With this call for change from the CEDAW committee, Sri Lanka should urgently repeal its outdated and discriminatory law.
