2020 Apr 28
With insights from LGBTQ+ activists Aritha Wickramasinghe, Equality Director of iProbono and Kiruthika Thurairajah an independent consultant, Pulse explored the conversation surrounding the legal challenges faced by the LGBTQ+ community and what it means to be queer in quarantine. Here’s what they had to say.
What are the legal challenges that queer people in Sri Lanka face?
“With regards to a legal perspective, [queer people] are cursed with Sections 365 and 365a of Sri Lanka’s Penal Code,” remarked Aritha. “What these provisions actually mean according to the law are quite ambiguous.” To elaborate on these provisions, Section 365 mandates that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished[…].”
Accordingly, anything from oral sex, thigh sex, mutual masturbation or any form of sexual activity without a reproductive purpose is understood as being “against the order of nature” according to the provision. Commenting on this, Aritha pointed out that “in fact, a lot of case law has been against the LGBT people, especially gay men. There are some really absurd judgments that not only interfere with the private lives of people but should have absolutely no place in 2020”
Article 365(a) of the Sri Lanka Penal Code, by the same token, provides that any act gross indecency between two people is guilty of an offense. This provision dates back to the colonial period. It was enacted in 1883 which at the time only covered “acts of gross indecency between two men” but was later expanded to include any person. “When you look at how courts have interpreted what it means to be ‘grossly indecent, it is so varied. It ranges from holding hands, kissing to showing affection. So thereby, a legal provision of this nature is not only absurd, but almost impossible and impractical to enforce.”
However, it is worth pointing out that Sri Lanka has made some positive judgments in the recent past. For instance, a progressive statement expressed by the Attorney-General of Sri Lanka at the Universal Periodic Review (UPR) in 2014 becomes noteworthy in this regard.
When Sri Lanka was pressed on these provisions, the Attorney-General remarked that it is “unconstitutional” to discriminate against LGBT people and that sections 365 and 365(a) cannot be used to particularly prosecute a specific group. “We happen to have a very prehistoric law that should not be there in the 21st century. We’ve had some progressive statements from the Attorney-General but at the same time there are police actively prosecuting LGBT people,” expressed Aritha who stressed on the fact that there are a lot of contradictions but that we should remain hopeful if we keep pushing for better laws that do not discriminate.
Living through self-isolation as a queer person in Sri Lanka
At a time when people are confined within their own homes due to the Covid-19 outbreak, most LGBTQ people in Sri Lanka have had to suffer very high levels of physical and emotional abuse because of perceptions relating to their sexual orientation. “Typically, those facing domestic violence, particularly women, are able to call helplines and report the crime.
Unfortunately, this same benefit is not present for LGBT people,” said Aritha. The LGBT people are unable to call the police for help. If they do so, they put themselves at a risk of being prosecutes for their sexual orientation. Therefore, they are denied access to justice.
How has the present situation affected lesbian and bisexual women?
Women, in general, have unfortunately become the predominant victims of domestic abuse and intimate-partner violence during this time. As for lesbians and bisexual women, the likelihood of being met with impunity if they report such a crime is even higher due to perceptions relating to their sexual orientation. In a country like Sri Lanka, Kiruthika stressed on the fact that “if two women in a sexual relationship live together, society just assumes they are friends. If a crime like intimate-partner violence (IPV) is reported, it comes as a shock because it is believed that IPV does not exist in same-sex relationships. This happens especially in the case where two women are involved.”
It has also been observed that a lot of homosexual women who live with a woman often fall victim to toxic masculinity. Living in a society that values patriarchal and hetero-normative norms, most homosexual women have a tendency to adopt a masculine personae in order to validate their sexual orientation as well as to have that authority in society, according to Kiruthika. “So when such a dynamic is included in a relationship with her partner, then it becomes very toxic,” she added.
Apart from the above concern, other toxic behaviour include physical abuse, humiliating, gaslighting (i.e. to manipulate someone to the point where they start doubting their sanity) has been known to take place, especially during this time of self-isolation. Falling victim to such behaviour can also lead to mental health problems like stress and depression as well as a tendency to turn to negative coping mechanisms such as alcohol consumption and smoking.
How can queer people seek help when they face threats or violence?
The domestic violence laws in Sri Lanka are quite inclusive of both opposite-sex and same sex cohabiting partners. However, Sections 365 and 365(a) as discussed before has discouraged many queer people from accessing the justice system.
- Connect with Women In Need (WIN)
Especially in the case where the victim of violence is a women, the organization Women In Need (WIN) has been extremely supportive and have guided some cases of violence directed at queer women through the legal system quite effectively, according to Aritha.
- Always get a lawyer when reporting a crime
“From my experience dealing with the Sri Lanka justice system, especially when dealing with an issue of gender-based violence or an LGBTQ-related concern, it is so important to go with a lawyer,” stressed Aritha. The chances of being dismissed or being taken for granted are much less if one goes to the police station along with a lawyer. Additionally, the lawyer must be armed with statements from the Attorney-General and the government in order for the police to take the case seriously.
What issues do transgender people face during self-isolation?
This period of self-isolation can impose a significant psychological burden on both transgender and queer folk, especially if they live with a family that does not accept their identity. Transgender people in particular, are at times forced by their parents to live according to the sex assigned at birth.
“Interestingly the legal environment in Sri Lanka is more supportive towards transgender people but the social or family environment can be quite destructive,” said Aritha. He also noted that the incidents of violence for transgender people are much higher than violence perpetrated towards gay or lesbian people, largely because it is much harder to hide one’s gender identity than one’s sexual orientation amid so many social prejudices. If you are victim of such violence, do not hesitate to find a safe place and seek help. Organizations such as Women In Need and Equal Ground and several other organizations are ready to step in and help anyone in need of any form of support, including providing safe houses, counselling and referral support.
Intimacy vs. Self-isolation
A common problem that arises during this curfew period is the inability to invite a sexual partner over to one’s home, especially when living with parents or other family members. Inviting someone over or deciding to head out can actually put yourself, your sexual partner and those in the vicinity at great risk. “In a socially conservative and legally restrictive environment like Sri Lanka, it is ironic that some people are actually inclined to go outdoors instead of staying in,” said Aritha. He also noted that by going out, LGBT folks not only expose themselves to the possibility of arrest but also other forms of physical harm.
Aritha also added that “as gay men, in general we have such limited opportunities to meet someone we are attracted to and to express that intimacy. But when we act on that intimacy when the opportunity presents itself, it should not be something that people look down upon.” In the event where same-sex partners are able to get intimate, it is important to practice safe sex. Kiruthika recommends using latex dental dams (i.e. cutting up a condom and using it between the mouth and vagina for lesbians and bisexual women) during activities like oral sex or when using sex toys. During the quarantine period, masturbation is a great way to have some self-love in addition to phone sex with a Tinder date or your sexual partner, for instance. Remember to abide by the cardinal rule of sexting- do not show your face or reveal your identity when sharing nudes with your partner and ensure that consent is asked for and obtained to show respect to both partners.
Information derived from iProbono Equality Director Aritha Wickramasinghe, Independant Consultant Kiruthika Thurairajah and Programme Officer/ PLHIV Activist Sriyal Nilanka