Time to dump Sections 365 and 365A into dustbins of history

There is a lot of buzz around the Private Members Bill initiated by SLPP National List MP Premnath C. Dolawatte which was published in the Government gazette this week. For those who have been advocating for the repeal of the archaic law that criminalises sexual relations between members of the same sex, it would seem there is a light at the end of the tunnel. 

The Government has said it will support the Bill while the main opposition SJB as well as the JVP/NPP too have said they would not oppose such a move. This leaves room for optimism but in reality private members’ bills go through a cumbersome and lengthy process before they become law unless the Government in power prioritises the Bill and ensures that process is complete within a short period of time.

Sri Lanka’s law criminalising homosexual relations originates from colonial times as has been the case with many other countries. Like many other laws originating in the colonial times, sections 365 and 365A of the Penal Code (Chapter 19) are outdated, discriminatory and should have no place in the country’s statute books

In 2018 the Indian Supreme Court struck down the law that criminalised same sex relations while many other countries have done the same. Britain, which introduced the law against homosexuality to its former colonies decimalised same sex relations more than 50 years ago.

In Sri Lanka, no major political party has taken on itself the task of repealing these discriminatory sections in the Penal Code worried that there could be a backlash from a section of society as can be expected. An attempt to get Cabinet approval to repeal sections 365 and 365A during the last Government was thwarted by former president Maithripala Sirisena whose regressive way of thinking on the issue heightened homophobia in the country with him publicly referring to members of the LGBTQ community in derogatory language and making light of a serious issue. 

It is this kind of prejudice that those who campaign for the rights of LGBTQ are up against. What laws cannot overcome are prejudices in society and fighting these will remain an uphill battle even once the necessary laws are passed by Parliament.

Getting same sex relations decriminalised will be a big step but the country has a long way to go to ensure equal rights and recognition for all its citizens, however they choose to identify themselves. The country lags behind many others in protecting marginalised groups in society such as transgender persons who face harassment, threats and even violence. Birth certificates only recognise persons as male and female which leaves transgender persons in a quandary as they are unable to obtain legal recognition for their gender identity. This is another area where recognition must be given for new gender identity on birth certificates so that such a person can get admission to a school, change names based on their identity as they become adults and gain access to Government services without fear and discrimination. These are areas which too need to be given due attention by the Government in power particularly by the Minister of Justice. 

Every citizen is protected from discrimination by the country’s constitution. It’s important to remember that every citizen, irrespective of their sexual orientation, gender identity, etc. has the same rights as any other citizen.

A word of appreciation is due to MP Dolawatte for taking on an issue which may not be politically popular and broadening the public discourse on an issue that has been for too long discussed behind closed doors in hushed voices. Now is the time to dump sections 365 and 365A to the dustbins of history, its rightful place.