Decriminalising homosexuality; a much needed legislative reform

This year in May, the Supreme Court gave the green light to a private member’s bill seeking to decriminalise homosexuality, in a significant move that could lead towards a long-delayed policy and legislative change. The ruling which came after hearing more than a dozen petitions on both sides of the argument, ruled the proposed bill was not unconstitutional. This was indeed a small but important step by the highest court in the land which has often shied away from trespassing into the territory of the legislature.

India’s Supreme Court on the other hand has been far more progressive and courageous in moving with the times and ensuring the rights of the people. In 2017, it gave the country’s Lesbian Gay Bisexual and Transgender and Queer (LGBTQ) community the freedom to safely express their sexual orientation. It ruled that an individual’s sexual orientation is protected under the country’s Right to Privacy law. A year later consensual gay sex was legalised by India’s Supreme Court when it struck down Section 377 of the penal code, a colonial-era law that outlawed same-sex relations. Sri Lanka has not seen such progressive actions that reflect the values of a modern society either in the judiciary or the legislature and continues to criminalise sexual activities. It is one of 69 countries that sill criminalises same-sex relations between consenting adults.

Decriminalising same-sex sexual activity should be the bare minimum reform at a time when all people are realising their equality within the law which includes marriage, having a family, inheritance, etc. Currently same-sex sexual activity is prohibited under the Penal Code, which criminalises acts of ‘carnal knowledge against the order of nature’ and ‘gross indecency’. These provisions carry a maximum penalty of 10 years’ imprisonment and a fine. Both men and women are criminalised under this law. The 1883 Penal Code was inherited from the British during the colonial period, in which the English criminal law was imposed upon Sri Lanka, and we retained the law upon independence and continue to uphold these outdated laws.

In 2022 the UN Committee on the Elimination of Discrimination against Women (CEDAW) found that Sri Lanka violated the rights of a lesbian and leading LGBTQ activist who was subjected to discrimination, threats and abuses due to the country’s laws. Such international condemnation could have been avoided, if necessary actions were taken to rectify these archaic laws.

The fact that law abiding citizens of this country have to live in fear of the law due to their sexual orientation is an abomination in this day and age. The State, the judiciary and the laws of a country should be there to protect vulnerable communities and not to cement inherent prejudices and discriminations of society. Sri Lanka must undertake such a journey in which fellow citizens are celebrated for their diversity and are reassured of their rights and dignity which are inherently theirs by birth.

As millions of people across the world celebrate pride events that acknowledge the self-acceptance, achievements and legal rights of the LGBTQ community, Sri Lanka is yet to take even the first tiny steps towards decriminalisation. The time for waiting has passed. With the Supreme Court also clearing the way for this minimum reform, the time to act is now. The President and the Government should have the courage of their convictions to address this generational discrimination and start a process that would lead to full and complete equality of everyone in the gender and sexuality spectrum.