The Case: Gender Equality

By law, Sri Lankan women are assumed to have the same interests, needs, and rights as men, based on notions of gender equality. Thus, both women and men are understood to be equal before the law.3 _{However, the Sri Lankan legal system does not as yet recognize Lesbian, Gay,}

Bisexual, Transgender, Queer, Intersex (LGBTQI) individuals. The following case is one of legal reform based on the assumption of gender equality.

The Penal Code of Sri Lanka, originally enacted in 1883 when the country was a British colony, is still based on outdated British law. Thus, in line with antiquated British-colonial penal codes, Sections 365 and 365A of the Sri Lankan Penal Code prohibit homosexuality.4

Section 365 prohibits ‘carnal intercourse against the order of the nature’, while section 365A uses the phrase ‘an act of gross indecency’. Evidently, 19th century British colonial lawmakers had no conceptualization of lesbianism, and as a result, sex between women did not come within the purview of the Penal Code at the time.

In 1995, the Ministry of Justice presented the Penal Code (Amendment) Bill to Parliament (Act No.22 of 1995), which dealt with a number of criminal issues including more stringent penalties for rape, sexual harassment, child abuse, as well as the introduction of a new Section, Grave and Sexual Abuse. Interestingly, as pointed out by Tambiah, homosexuality was a key anxiety that motivated the Penal Code Amendment Bill so as to reform criminal law with regard to the abuse of children, given a dominant social perception of boy children being sexually abused by foreign perpetrators.5 _{As observed further by Tambiah,}

This then made it convenient for both child advocates as well as legislators, operating within a homophobic paradigm, to collapse male pedophilia with male homosexuality from the inception of the call to reform the criminal law with regard to children… The primary attention on the foreign male as perpetrator masks the existence of local perpetrators, and more critically, attention on the male child in 3 _{For instance, men and women are both granted equal legal rights and privileges when it comes to}

job stability and termination of employment, retirement benefits, provident funds and gratuities. Legislation also confers equal privileges with regard to working hours, working conditions and leave. 4 _{The first civil injunction against sodomy in British history was the Buggery Act of 1533, which made}

the ‘detestable and abominable vice of buggery committed with mankind or beast’ a felony, and which, survived in various legal forms until 1967.

5 _{Tambiah, Yasmin (2004). “(Im)moral Citizens: Sexuality and the Penal Code in Sri Lanka”, in A. J.} Cannagaratna Ethnicity, Pluralism and Human Rights, Neelan Thiruchelvam Commemorative Conference

prostitution hid the fact that female children were being abused in the context of their homes and schools by familiars’.6

The introduction of Section 365B (1) defines Grave Sexual Abuse as an act ‘committed by any person who, for sexual gratification, does any act, by the use of his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person’, and was brought in to cover all sexual acts perpetrated without consent that did not amount to rape.7

Given the proposed inclusion of this new section to the Penal Code, the Technical Committee that was appointed to examine the pertinent laws recommended the decriminalization of homosexual activity in private between consenting adults by repealing the relevant Sections 365 and 365A under Unnatural Offences. However, the more progressive amendments to the Penal Code that had been recommended by the Technical Committee were dropped when the Bill came to Parliament. This was primarily due to political pressures by powerful factions within the then coalition government. These included the proposed decriminalization of homosexual relations between men, the relaxation of laws governing abortion, and the legal recognition of the notion of marital rape by its criminalization and the introduction of a penalty.

However, for some reason, lawmakers decided to ‘equalize’ the language in the Bill. This involved deleting the term ‘males’, and instead, substituting the more gender-neutral term ‘persons’. Unfortunately, this amendment led to an unforeseen development. Until then, a perpetrator was considered to be gender-neutral under Section 365, even though a reference to penetration in the explanation suggests a male perpetrator. On the other hand, Section 365A named a male person as the perpetrator of gross indecency with another male person. Whereas earlier, this Section applied only to sex between men—irrespective of consent. Now however, under the new offence of Grave Sexual Abuse under Section 365B, the reference to a ‘male person’ had been replaced by the more gender-neutral term ‘person’. Consequently, sexual activity between women became inadvertently criminalized.

Even though the law is rarely enforced in the country (apart from a few instances of political harassment), enforcement authorities have been able to utilize its existence as a means of repression against the LGBTQI community from time to time. There have been reports of harassment (including quid pro quo harassment), intimidation, blackmail, sexual favors and humiliation, et cetera.8 _{The law has served to control the reportage of sexual violence and rapes}

of men. Furthermore, it has also led to restraints in health projects relating to STDs and HIV/ AIDS.9

6 _Ibid.

7 _{This covers both male and female perpetrators.}

8 _{Chandratilaka, MAN and Mahanamahewa, P (2015). “Sexual Orientation and Human Rights;} Applicable Laws of Sri Lanka and UK”, Proceedings of 8th _{International Research Conference, KDU,}

Published November 2015; Tambiah, Yasmin (2004). “(Im)moral Citizens: Sexuality and the Penal Code in Sri Lanka”, in A. J. Cannagaratna Ethnicity, Pluralism and Human Rights, Neelan Thiruchelvam

Commemorative Conference Papers, International Centre for Ethnic Studies, Colombo; Wijewardena,

Shermal (2008). “Missing Niche Audiences and Underground Views on Sexual and Gender-based Violence in Sri Lanka,” in Radhika Coomaraswamy and Nimanthi Perera-Rajasingham, Constellations

of Violence - Feminist Interventions in South Asia, Women Unlimited, New Delhi.

9 _{Tambiah, Yasmin (2004). “(Im)moral Citizens: Sexuality and the Penal Code in Sri Lanka”, in A. J.} Cannagaratna Ethnicity, Pluralism and Human Rights, Neelan Thiruchelvam Commemorative Conference

This seems to have been one glaring instance of shortsightedness and negligence on the part of lawmakers. The possible negative consequences of an equalizing process via terminology had not been anticipated. It would seem that, in this instance, the concept of (gender) equality has been founded on a benign, overarching, and hegemonic understanding of similarity and/or a degree of commonality between men and women. Tambiah citing legal scholar Savitri Goonesekerere surmises that the specific references to ‘male’, was most likely removed by Sri Lankan lawmakers unintentionally, resulting in ‘an ironical imposition of gender equality on alleged perpetrators.’10 _{While there was no reference to lesbian sexuality in}

the Bill (and consequently, no understanding of gender or biological differences, nor gender equity); the minor adjustment in the lexicon was adequate to inadvertently criminalize lesbian sexual acts.