ECONOMYNEXT – In what LBGTQI activists in Sri Lanka are calling a welcome win in a country where harassment of the community at the hands of law enforcement is not uncommon, the Court of Appeal on Wednesday (08) granted leave to proceed for a writ petition filed against the police over a widely condemned homophobic training session.

The petition was filed by Equal Ground, a nonprofit organisation promoting LGBTQI rights in Sri Lanka, and other civil society activists, against the Inspector General of Police, the Deputy Inspector General of Police of the Kandy range, and the trainer in question who had presented herself as a counsellor, over alleged violation of the rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people in the island nation.

A video recording of the said training programme went viral on social media in August 2021 in which the purported counsellor was seen openly making homophobic remarks to a packed audience of policemen and women. The offending video, which was shared on Twitter on August 02, showed the woman posing the question “Would you like your child to be a victim of a homosexual?” to which the audience replied “no” in unison.

The trainer is heard advising the police officers against the union of same sex couples, adding that the members of the audience would not have been born had their parents been gay. She also claimed that governments in Sri Lanka had been toppled over their stance on homosexuality, possibly referring to the previous Yahapalana administration which had at least one openly gay cabinet minister within its ranks.

A spokesperson for EQUAL GROUND told EconomyNext on Friday (10) that the NGO was hoping for a verdict prohibiting such training programmes in the future.

“What we are seeking is for the court to issue a writ of prohibition against the police from conducting similar programmes, trainings and seminars that discriminates, vilifies and are derogatory against the LGBTIQ community,” attorney-at-law Lasanthika Hettiarachchi who represents the organization said.

“That’s the relief we are asking for and nothing else.”

The case is now at the merit stage, according to Hettiarachchi, at which point a court grants ‘leave to proceed’. The court has also ordered to issue notice to the respondents in the case, Hettiarachchi said.

According to Hettiarachchi, most LGBQTI persons in Sri Lanka who are victims of harassment do not file fundamental rights petitions because they have not yet come out to their own families. Victims are unlikely to go to the police due to this and also on the likelihood of being harassed by the police itself.

“This fear is one main reason why the community members don’t file cases against the police,” she said.

Human Rights Watch has noted that police in Sri Lanka have carried out many arrests of LGBTQI people, sometimes employing violence.

“Among the 61 lesbian, gay, bisexual and transgender (LGBT) people interviewed for a 2016 Human Rights Watch report, 16 had experienced physical or sexual assault, including rape, by the police,” an HRW report published in October 2020 said.

This writ petition by the activists against the police and the trainer is the first of its nature to be heard in Sri Lankan courts.

“So even for us knowing the history, knowing how difficult it is for the community to deal with the police; the fact that a Sri Lankan court is taking up the case and acknowledging that there is a need for the case to be heard is a win for the whole community,” Hettiarachchi said.

Though Equal Ground is not certain what the outcome will be, the organisation sees it as “progress so far”.

“When we filed the case, we thought that even if the case is not heard, or the judgment is not in favour or does not prohibit the police from conducting similar training, if we just get past the ‘leave to proceed’ stage, it will be progress for us,” said Hettiarachchi.

Archaic laws

Sri Lanka follows an archaic set of laws and rules set by the British in matters of sexuality, according to legal experts. Chief among these are Sections 365 and 365A of the Penal Code that prohibit “carnal intercourse against the order of nature” and “gross indecency between persons”, which rights groups including Human Rights Watch have said is “commonly understood in Sri Lanka to criminalise same-sex relations between consenting adults, including in private spaces.”

“The larger society doesn’t seem to know what the laws are in the first place,” said Hettiarachchi.

Human Rights Watch has also documented that other laws, including a vaguely worded Vagrancy Law and a penal code provision banning “cheating by personation,” are also used to target transgender and gender non-conforming people for arrest.

“If you ask most people about it, they do not know if it is legal or not to be gay in Sri Lanka,” said the lawyer, adding that society at large remains uneducated on what acts amount to an offence and what doesn’t.

“I think legal literacy is very low, especially when it comes to certain myths about the community.”

In terms of reforms, progress has been slow at best.

Soon after the training video went viral, a cabinet spokesman said the government was still undecided on LGBTQI rights, but the matter is under discussion and representations have been made by various quarters.

Related: LGBTQ rights: Sri Lanka still undecided, says govt in response to homophobic police video

According to Hettiarachchi, one of the progressive steps taken is a Gender Recognition Certificate that was introduced in 2016 that trans-gender persons may apply in order to legally change their gender whether or not they have undergone a medical transformation.

Activists have long called for robust reform. In the wake of the police video, the Sri Lanka College of Psychiatrists urged authorities to amend article 365.

“This archaic law should be abolished and homosexuality decriminalised in Sri Lanka,” the psychiatrists’ body said in a statement condemning the video and pointing out that homosexuality is not a mental illness.

Related: Sri Lanka College of Psychiatrists says homosexuality no illness, calls for decriminalisation

Hettiarachchi said, other than the Gender Recognition Certificate, there has not been any substantial progress in the area.

However, she did note recent remarks attributed to President Gotabaya and Justice Minister Ali Sabry that she said were progress in their acknowledgement of the community and their rights.

“The first step would be to decriminalize same-sex sexual activities in the penal code,” said Hettiarachchi.

However, the lawyer does not see this happening anytime soon as any real reform can only take place in the legislature and the law cannot be challenged in court. “It needs to go through parliament to be changed,” she said.

At a lower level, she said, there are issues the community faces that can be changed, mainly with the police and the criminal justice system.

“One would be to sensitise and educate the police about the law of the country because either they are not aware or they are abusing the law,” said Hettiarachchi.

There are cases in which gay persons have been raided and arrested for being in the same hotel room and were subjected to anal examinations to determine if they had had sexual intercourse before the police arrived at the scene.

“Even according to the Penal Code, you cannot arrest a person for being gay and carry out tests to check if they were involved in sexual activity; but this is what’s happening in the country,” said Hettiarachchi.

“Basically, this is an abuse of law so the first step will be to educate the police and reduce arbitrary arrests and harassment for the community,” she said. (Colombo/Dec11/2021)