August 24, 2023 Bridge Team

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals in Sri Lanka have too often been subjected to discrimination, abuse, violence, and harassment in violation of their human rights. Throughout the years, research reports have continuously identified the Sri Lanka Police Department as the foremost perpetrators of human rights violations against LGBTI individuals. Developments in the last few months saw both the Police and the Human Rights Commission of Sri Lanka (HRCSL) acknowledging this fact and seemingly taking steps to remedy the situation. 

Recent developments

On 15 March of this year (2023), the HRCSL launched, in all three languages (Sinhala, Tamil and English), its Guidelines for Police officers to protect transgender persons. As the HRCSL website indicates, these guidelines were released with the objective of ensuring that the Police uphold the human rights of LGBTI individuals when interacting with them. The set of 12 guidelines appear to be based on the Yogyakarta Principles (2007), which are a set of principles that apply international human rights law to sexual orientation and gender identity. This may indeed be the first time that reference to the Yogyakarta Principles has been made by a national institution in Sri Lanka. 

The Guidelines describe very briefly how the Police should interact with transgender persons, focusing on their rights to:

• Recognition before the law (Guideline 01: Right to Recognition before the Law);
• Equality and non-discrimination (Guideline 02: The Right to Equality and Non Discrimination); 
• Freedom from torture and cruel, inhuman or degrading treatment or punishment (Guideline 03: The Right to Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment);
• Security of the person (Guideline 04: Right to Security of the Person);
• Freedom from arbitrary arrest and detention (Guideline 05: The Right to Freedom from Arbitrary Arrest and Detention);
• Privacy (Guideline 06: The Right to Privacy);
• Treatment with humanity while in detention (Guideline 07: The Right to Treatment with Humanity while in Detention);
• Family life (Guideline 08: The Right to Enjoy the Family Life);
• The best interest of the transgender child (Guideline 09: Ensure the Best Interest of the Transgender Child);
• Access to law enforcement authorities (Guideline 10: The Right to Access to Law Enforcement Authorities);
• Freedom of expression, association and peaceful assembly (Guideline 11: The Right to Freedom of Expression, Association and Peaceful Assembly);and 
• Promote LGBTI rights (Guideline 12: The Right to Promote LGBTI Rights). 

Another recent development occurred in December 2022 when the Inspector General of Police (IGP) Chandana Deepal Wickramaratne tendered an apology on behalf of the Police for the harassment faced by LGBTI individuals at Police stations at the hands of Police officers. Following his apology, he issued a circular dated 27 December 2022, titled: “Matters to be considered when dealing with transgender people and people who have undergone gender transition”. The circular indicates that it is a direct response to a legal case filed in the Court of Appeal, arising from a Police officers’ training where the trainer had made disparaging statements about LGBTI individuals. The petitioners in that case had sought a writ of prohibition preventing the Police from conducting trainings or lectures that marginalise and violate the fundamental rights of LGBTI individuals. When the case was heard in court, the Attorney General, President’s Counsel Sanjay Rajaratnam, appearing for the IGP, stated that a circular would be issued containing instructions on the steps that the Police should take when engaging with LGBTI individuals. The case was concluded in January, 2023, with the December, 2022, circular being filed on record.

The December 2022, circular states that complaints made to the Police by transgender persons should be investigated by the unit for the ‘prevention of abuse against children and women’ and that the Inspector in charge should seek instructions from the Deputy Inspector General of Police (DIG) / Director of the said unit with the final investigation report being forwarded to the Director of the Legal Division upon completion of the investigation. Further, the circular states that transgender persons who have undergone gender affirming care shall be searched as appropriate, and if detained, the person would be under the custody of a female warden or female officer as deemed appropriate. It also notes that no speeches or statements that lead to discrimination or marginalisation of transgender persons should be allowed in Police training, and that “no anal/vaginal examinations” should be carried out “without a formal complaint” or “reasonable grounds”. Further, the circular states that no legal action should be taken against individuals who are not forthcoming with the Police about their transgender identity unless their failure to identify as a transgender discloses a criminal intent on their part. The circular also states categorically that being in possession of contraceptives, including condoms, is not an offence and that the Vagrants Ordinance (which has historically been used to arrest/detain LGBTI individuals) or any other law would not apply in such a situation. 

In light of the above, the circular appears to be relevant to certain interpretations of Section 399 of the Sri Lankan Penal Code, which criminalises “cheating by personation” and which, upon conviction, makes people liable to punishment of up to three years’ imprisonment and a possible fine. The Section defines “cheating by personation” as “pretending to be some other person, or by knowingly substituting one person for another, or representing that he/she or any other person is a person other than he/she, or such other person really is”. As the illustrations featured in Section 399 make clear, “cheating by personation” is applicable in circumstances where impersonation is carried out with fraudulent purposes, and the Section is not relevant to transgender persons and their gender identity and gender expression. Regrettably however, the existence of this Penal Code provision has led to the long held belief among Police officers that transgender individuals “have changed” their gender identity to commit crimes, with cases being filed against them “for misleading the public”. Further, the “loitering provisions” of the Vagrants Ordinance (1841) have also been used by the Police to intimidate, extort, detain and interrogate those whose appearance does not conform to stereotypical gender norms. The Ordinance acts as a law regulating “decency”, penalising certain social behaviour, such as behaving in a ‘riotous and disorderly manner’, ‘wandering’, ‘idling’, ‘gathering or collecting alms under false pretense’, ‘endeavouring by the exposure of wounds, deformities, leprosy or loathsome disease’, ‘soliciting’, or ‘acts of indecency’. Those who engage in such conduct are labelled ‘rogues’, ‘vagabonds’ or ‘incorrigible rogues’. ‘Incorrigible rogues’ are not only convicted for the ‘crime’ that they committed, but are also expected to provide monetary security for one year after release to guarantee their future good behaviour. Unfortunately, the circular does not take cognisance of how these provisions are discriminatorily used against LGBTI individuals by the Police and nor does it provide for remedies to address this trend. 

By Mathuri Thamilmaran

(The writer is the National Legal Advisor – Sri Lanka at the International Commission of Jurists)