LGBTQ Rights: When will Christina come out? Bernard Edirisinghe
“The sergeant of the Mahabage Police Crime Division said that the police were trying to get the girl on the right track”.
This conversation took place last April, with the police officer, who went to the Wattala magistrate court to get a motion related to the case of Christina (pseudonym name), who was police identified as a lesbian girl.
This case is an acid test of the challenges facing the LGBTQ community in Sri Lanka can be seen in the controversial attempt by the Sri Lanka Police of Mahabage to refer a young woman who had been identified as a lesbian to Psychiatry treatment.
Christina (pseudonym) represents the generation born with internet and digital technology, represented by generation Z. According to the limited information that was available, Christina is a postgraduate in economics and business studies, and she chose the online education service as her career. Qualities unique to the young generation such as polite social relations, taking less risks and fearlessly engaging in activities that were considered repulsive by previous generations were also developed in Christina. Because of this, Christina’s soul and body were drawn to Kusum (pseudonym), but she did not hesitate to build a relationship with her, a resident of Kandy who belongs to the millennial generation. The internet was the means of communication between them, who did not meet often. Instead of questioning whether ‘nature of the order’ is the only form of sexual relationship in the subject of human sex relations, she was brave enough to reveal her relationship with Kusum to her extended family, who accepted it as such.
A group consisting of various factions, all of which advocated Victorian-era morals through the Catholic Church, opposed Christina. Anton and Annette (pseudonyms), a junior staff employee of a private bank in Colombo and a housewife, respectively, seemed to have concluded that their daughter belonged to their generation. Although her parents were Christian followers who valued brotherly love and mercy, in their daily life, they were a family that was disciplined by Victorian Christian ethics. Motivated by this, they considered Christina’s same sex relationship as disgusting and anti-social. They considered it to be morally acceptable to live and raise children according to the ‘order of nature’ after a marriage performed in a church ceremony. They attempted to treat their daughter through various mythical and religious rituals, and in the end, forced Christina to see a psychiatrist at a private hospital in Wattala. The doctor was not sensitive to the new knowledge about the LGBTQ community and advised that Christina’s relationship with Kusum was a mental illness and should be treated.
Anton and Annette’s next stop was the Sri Lankan police, who appeared to be unaware of the strides the LGBTQ community has made in the past decade in terms of their rights. On April 9, 2022, a complaint was made to the Wattala Mahabage police by Annette, Christina smother. Acting accordingly, the Mahabage Police called Christina to stop her relationship with Kusum. They also threatened to report her for violating Section 365 of the Penal Code, which carries a two-year prison sentence, as well as for engaging in adultery, which is not in line with Sri Lankan culture. The police took the necessary steps to refer Christina to the Judicial Medical Officer (JMO) of Ragama Teaching Hospital, to arrange for Psychiatry treatment. They claimed it was for her own good. One of the steps was getting Christina to fill out the related form, which she expressed her desire to do so. The police may have been happy that they did their duty well, but Cristina, a bold and independent young woman, changed her decision after coming out of the police because it was not a voluntary decision for her to consult a psychiatrist.
The response of the Mahabage police was to resort to a legal provision that is considered a barbaric law of the 21st century, which is more than a century old. A motion was filed seeking a court order to direct the Christina to the Judicial Medical Officer at the Ragama Teaching Hospital under Section 365 of the Penal Code.
Section 365 of the Penal Code states that relations between persons of the same sex that violate the ‘order of nature’ are illegal. This is a law imposed by the British imperialists in 1848. There was no reference to women. The century-old law was amended in 1965, stating that same-sex relationships between individuals of the same sex are also against the ‘order of nature’ norm.
The statement made by Supreme Court Judge Aluwihare PC J, while examining a case assigned under 365 WIMALASIRI VS. OIC, POLICE STATION, MARADANA is considered an important juncture regarding this adultery law in Sri Lanka. In 2009, the Maligawatta Magistrate’s Court, which heard a case filed by the Maradana Police under section 365 an on an allegation related to oral sex, sentenced the two suspects to two years in prison with hard labour. The appeal to the Supreme Court upheld the previous decision. However, the presiding judge of Aluwihare, on behalf of the three-judge panel that examined the application submitted to the Supreme Court in 2015, approved the decision because the decision of the lower court was based on evidence that could be proven beyond any doubt. And thus, decided to reject the appeal. However, he did not hesitate to express his opinion about 365 indirectly by not directly applying it to the case in his announcement of the judgment. The Supreme Court Judge said “Contemporary thinking holds that the state should not regulate or criminalize consensual sexual behavior among adults. It was also pointed out that even in England, gross indecency and oral and anal sex acts are no longer accepted as a crime”.
But the Indian Supreme Court’s decision in NAVTEJ SINGH JOHAR VS. UNION OF INDIA in 2018 could be seen as opening a new chapter regarding LGBTQ rights in the Asian region. Under Section 377 of the Indian Penal Code, all human sexual acts that are against the ‘order of nature’ are considered serious offences. The Naz Foundation (India) Trust successfully challenged Section 377 before the Delhi High Court in 2009 on the grounds that it violated the constitutional rights to equality, privacy, and personal liberty of consenting adults. This decision was appealed to the Supreme Court, and the judgment announced in 2013 overturned the earlier verdict. The Supreme Court found that same sex could be decriminalized only through a law passed by the Indian Parliament. A writ petition filed by five activists, including LGBTQ activist Navtej Singh Johar, challenged the 2013 court decision’s constitutionality. Chief Justice Dipak Mishra, who announced the court’s decision on behalf of a five-judge bench, said that the court’s 2013 decision was unconstitutional. Their argument was that the 2013 judgment violated the Indian Constitutions provisions on equality and non-discrimination, freedom of expression, right to life, and personal liberty. In reaching this decision, they also considered the YOGYAKARTA Declaration’ on LGBTQ rights, which was announced in 2006 in Yogyakarta, Indonesia. India is also a signatory to this declaration, which they viewed as an important precedent. An LGBTQ activist from India, Arvind Narrain (India), (Geneva Director, ARC International; Alternative Law Forum (2000-2014) participated in the conference and signed the final declaration. It is unique that the Supreme Court of that country recognized it as an international responsibility of the Indian government. The court reaffirmed the equal rights of all members of the LGBTQ community under Indian constitution. Consequently, they ruled that since consensual sexual relations between same-sex persons or otherwise are not a crime, Section 377 of the Penal Code should no longer be used for it.
On April 22, 2022, the Mahabage Police submitted a motion to the Wattala Court. A court order was requested in order to bring Christina Ragama before the JMO at Ragama Teaching Hospital.
According to the court report, the Wattala Magistrate granted permission to the police.
When the case was called in the Magistrate’s Court, Christina was not present. At this point in time, she moved out of her parent’s house, where she was living.
A private members bill has been submitted to Parliament proposing the removal of Section 365 of the Penal Code of Sri Lanka from the lawbook.
Ranweera, a lecturer in the Department of Criminology and Criminal Justice at the University of Sri Jayawardenepura, (Short Communication: Discrimination against LGBT Community in Sri Lanka: as a Humane Issue toward Sustainability) observed that “despite Sri Lanka’s efforts to create equality between genders, the LGBTQ community still faces many hurdles.” One of the greatest challenges facing the LGBTQ community is the attempt by the Sri Lanka justice system to impose sentences based on outdated laws and Victorian values. We must initiate an informed dialogue about the basic human rights of the LGBTQ community and the need to repeal outdated laws. In order to create such an environment, it is important to learn from international practices, including the’ Yogyakarta Declaration’ as well as Asian regional experiences, especially the Indian examples.
Then Cristina can come out.
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