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CEDAW and Sri Lanka

in SRI LANKA, 14/02/2011

For the first time, the CEDAW Committee's Concluding Observations on Sri Lanka have included a reference to the criminalization of same-sex relationships in Sri Lanka.

Under the section on Violence Against Women

Para 24 states

The Committee is concerned that the criminalization of same sex relationship results in women being completely excluded from legal protection. It is also concerned about the information that the law enforcement officers are allowed to arbitrarily detain them.

 

Pare 25 (g) states:

In accordance with its general recommendation No. 19, the Committee urges the State party to decriminalize sexual relationship between consenting adults of same sex, and abide by the obligation of non-discrimination under the Convention

 

The CEDAW Concluding Observations can be accessed here: http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-LKA-CO-7.pdf

 

It must be noted that this was the first time that a separate Shadow Report on the status of LBT Women was submitted to the CEDAW Committee in time for the review of the Sri Lanka Country Report in January 2011. A copy of the LBT Shadow Report, prepared by the Women's Support Group, Colombo can be found on the OHCHR website: http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/WSG_SriLanka48.pdf

 

Please find below excerpts related to sexuality from the 'constructive dialogue' between the CEDAW Committee and the Sri Lankan Government delegation which took place on 26 January 2011 at the United Nations in Geneva.

The following responses on behalf of the Sri Lankan government were provided by Ms. Dhara Wijayatillake, Secretary, Ministry of Technology and Research and Mr. A.H.M.D. Nawaz, Deputy Solicitor General, Attorney General's Department.

 

Questions by CEDAW Committee

Why were women involved in same sex relationships completely excluded from legal protections? Why are law enforcement officers allowed to arrest and indiscriminately detain them?

 

Article 12 of the Constitution guaranteed equality for all. However Section 365a of the Penal Code makes lesbianism punishable under the law, and also allows room for lesbians to be harassed by the authorities under the Vagrancy Ordinances Act. This legal situation is aggravated by the negative stereotypes in society which also forced lesbian women to lead of life of fear. These two legislations contradict CEDAW Article 2 and GR 28 and prevent lesbians from having access to equality under the law. Is the government willing to abolish Section 365a of the Penal Code and the Vagrants Ordinance in line with CEDAW?

 

Answers by Sri Lankan government delegation

Article 12(2) of the constitution of Sri Lanka says it does not discriminate on the grounds of sex and this can therefore be interpreted to include sexual orientation. “So they can go to the Supreme Court if they want their rights”.

 

The Sri Lankan government has no policy to abolish the Vagrants Ordinance because “the issue of vagrants must be dealt with”. The Ordinance was “not meant to be used to deal with prostitution, because prostitution is not a crime in my country.”

 

Section 365a of the Penal Code is nothing new. But this has been identified as something that needs to be re-examined with regard to the law in order to reform the law.

 

Questions by CEDAW Committee

Can the government clarify whether there was going to be no change in the law for lesbians? Or was she to understand that the government will take it upon themselves that the criminalization of homosexuality will be taken up with law reform? (At this point Ms. Dhara Wijetileka, Chair of the Sri Lankan delegation, nods her head in agreement).

 

Answers by Sri Lankan government delegation

With regard to the criminalization of lesbians, “what is in place is an initiative that will look at the Penal Code and will receive recommendations in conformity with international law and the State will adopt these recommendations”.

 

Questions by CEDAW Committee

Is Vagrants Ordinance used to arrest sex workers? Please “clarify whether soliciting sex in the street is a punishable offence” under the Vagrants Ordinance?

The government delegation failed to respond to the above question.

Questions by CEDAW Committee Lesbian and transgender women were also exposed to discrimination as they could be admitted to special psychosocial centres where they were forced to receive psychological treatment. Criminalization also meant that lesbians and transwomen were denied the right to the highest attainable standards of health due to issues relating to confidentiality. Families sometimes wish to cure lesbians and they are given forced medication. In addition, if lesbians do not conform to norms of femininity and stereotypical dress codes, they are treated differently. What is the government doing to protect the rights of lesbians equal access to health services?

Answers by Sri Lankan government delegation Irrespective of religion, culture or sexual orientation, women received all health services on an as needed basis. “We are safeguarding the health issues of all women irrespective of whatever their orientation.”

When acts of gross sex indecencies between male persons had provoked the discussions for legislation on sexual orientation, the Government requested the parliament to be gender-neutral. As a result, “section 365a was amended in 1995. Before that amendment, it was only for gay men.” So did the Attorney General’s department amend this with the intention of making it ‘gender neutral’ or did they do it to criminalize lesbianism? (After trivializing it and making a joke out of it he said) “We will look into it”.

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