Culture vs. Human Rights: Decriminalisation of Same-Sex Relationships in Sri Lanka
Photo courtesy of DW
Sri Lanka’s attempts to build an inclusive society through legislative moves that could result in greater equality for the minority LGBTIQ community have been met with opposition by the country’s religious leaders. They fear that doing so will threaten the culture and social values upheld in Sri Lanka. The backlash comes in the wake of the Bill that calls for the decriminalisation of same-sex sexual relationships between consenting adults. In response to this, several prominent religious figures in the country put forward their stances on the matter through means that have included public statements as well as a letter to the president.
The Bill, which was presented as a Private Members Bill in Parliament in 2022, requested the amendment of Sections 365 and 365A of the Penal Code. It was posited that doing so would garner a level of protection for the rights of the LGBTIQ population, some of whom have been subject to arrest based on the sections of the Penal Code. The section that prohibits “carnal intercourse against the order of nature” and “gross indecency between persons” has been left open for interpretation due to its vague wording, specifically the lack of classification and definition of terms. This has resulted in its misuse to exercise violence, harassment and oppression against the LGBTIQ community.
Sri Lanka’s legal system, parts of which still follow British law, is an outcome of colonisation. During the British colonial period (1796-1948), British laws were imported into the country and applied. Certain archaic laws such as the one from the Penal Codeare still in place within the legal system despite the occurrence of remarkable changes such as independence from British rule and Britain’s decriminalisation of homosexuality during the latter part of the 20th century. It can be argued that Britain’s overturning of the standpoint it once upheld is sufficient evidence that such stances are now antiquated.
The Penal Code (Amendment) Bill, a present day initiative to tackle these outdated influences, sought to repeal and replace Section 365 of the Penal Code by limiting the offence to bestiality in addition to repealing Section 365A in its entirety. It also stated that the intent of the legislature was to no longer punish a person due to their sexual orientation. The Bill was placed in the Order Paper of Parliament in April 2023. It was later challenged by three people who felt that decriminalisation was unconstitutional, a move which garnered several intervening petitions supporting the Bill. In May 2023, the Supreme Court determined that the Bill as a whole or any provision thereof was not inconsistent with the Constitution, thereby giving the green light for decriminalisation.
News of the Bill, in addition to the Supreme Court determination, generated backlash from those who felt this would threaten the fabric of society to which the country’s culture is strongly interlaced. The propaganda that ensued carried great amounts of misinformation, one such example being that the Bill was about same-sex marriage. This was not the case; the decriminalisation of same-sex relations does not automatically grant the pathway to same-sex marriage. It would appear that crucial details such as this have been missed or willfully overlooked by those who have also gone on to make public statements regarding the matter, including some of the country’s religious leaders.
The general sentiment expressed by these figures is that such a move will negatively affect Sri Lankan culture and its social values, which they state have been upheld historically by society. However, historically speaking, Sri Lanka boasts of a past where gender and sexual diversity did exist. This is evidenced by a plethora of historical records that describe and depict the presence of this diversity in the country. Some of the most prominent examples include the written accounts of homosexuality among the kings by Westerners such as Robert Knox and Joao de Casto. An overview of Sri Lanka’s pre-colonial history shows that before its colonisation the country showcased the characteristics of an inclusive society where there was greater liberty for human sexuality and gender expression.
Therefore, this raises questions about the history referred to in such statements, given that stark contrasts exist between pre- and post-colonial society. The evidence in itself negates the popular attitude in current society that being LGBTIQ is a Western import, a statement that implies it is a novel concept that only emerged in the country in recent times. This is simply untrue and is further proven by the evidence that exists. In reality, it is widely believed that colonisation is the cause behind the negative shift in societal attitudes and the negative sanctions towards the gender and sexual diversity that pre-existed. Further evidence for this can be gathered by looking at other countries that were former colonies of Western powers.
Religion is a subject frequently brought up in LGBTIQ-related discussions, with claims being made that it goes against religious teachings, is unnatural and is a foreign concept. Once more, evidence proves otherwise. Hinduism and Buddhism, the country’s oldest two religions, both refer to gender and sexual diversity. Hindu religious narratives speak of gender variance as well as non-heterosexual sexualities amongst deities. Hindu religious texts do not address sexual orientation or state that it is an attribute that makes someone inferior. No differentiation is made between heterosexuality and homosexuality. Rather, what is differentiated are procreative sexual acts done (within marriage) and non-procreative sexual acts. The latter set of sexual acts is prohibited for the clergyman and not for the layman.
Similarly, the Pāli Canon – the scripture of Theravada Buddhism – contains accounts of homosexuality and gender diversity, making no mention of it being against religion. The Vinaya Pitaka – the section of the scripture carrying monastic law – in stating that the clergy is banned from sexual relations makes no distinction between same-sex or opposite-sex sexual relations. It must be iterated that this law pertains to religious clergy and does not apply to laypersons. Furthermore, the Upāsakajanalankara – the 14th-century guide for lay people – contains an in depth section on sexual misconduct which does not mention homosexuality. The Vinaya also mentions the existence of the Pandakas, a group of people with diverse sexualities and gender identities. The 5thcentury monk Buddhaghosa, through his scripture writings, attempted to explain Pandakas to the lay people as well.
It is important to note that any evidence from these religions where it states that an act involving same-sex relations was punished has not been due to the sex of the persons involved but due to reasons besides this. For instance, if the act involved an underaged person, it would qualify as sexual misconduct and therefore be punishable. Awareness of such details is pivotal, especially amidst a backdrop where sacred texts have often been taken out of context and misused.
While it was British colonialism and the church’s influence that brought about Sri Lanka’s discriminatory laws and attitudes towards sexual and gender minorities, both have changed the stances they once strongly upheld. Britain enacted the Sexual Offences Act in 1967 which decriminalised homosexuality. Today, it is one of the leading places in the world where LGBTIQ persons are accepted and have their rights upheld; currently the UK parliament has the highest number of LGBTQ members of parliament in the world.
Similarly, stances of greater acceptance and inclusivity have been developed by the Christian church over time. For instance, the Wolfenden Report of 1957, which paved the way for Britain’s decriminalisation of adult same-sex relations, was supported by the Church of England. Across the church hierarchy, several key figures have publicly declared their acceptance towards the LGBTIQ community, the most notable example being that of the Pope, the head of the Roman Catholic church. Pope Francis has time and time again expressed acceptance as well as called for inclusivity for members of the LGBTIQ community into the church, speaking for their rights while maintaining the Catholic doctrine on marriage.
Despite such social reforms occurring globally, Sri Lanka has trailed behind. The country still maintains and exercises systems of the past, some of which are archaic. Moves to bring reform toward these systems are met with strong opposition even when they concern the basic human rights of marginalised groups.
During the Supreme Court hearing, one of the arguments posed by the petitioners was that homosexual activity goes against the principles of Buddhism, therefore violating Article 9 which states that “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana while assuring to all religions the rights guaranteed by Articles 10 and 14(1)(e).” It must be noted that the petitioners did not provide explanations for how the decriminalisation of a person’s sexual orientation detracts from the duty to protect the Buddha Sasana or how the proposed amendments are prohibited by or are contrary to the Buddha Sasana, except that it is an offence for Buddhist clergy to have sexual relations, regardless if it is same-sex or not.
In response to this argument, the intervening petitioners submitted that the clergy have a code of conduct (the Vinaya) that is not applicable to lay people in addition to stating that none of the sutras that act as guides for lay people condemn homosexuality. They also state that while the fundamental teachings of all religions call for the fair and equal treatment of humans regardless of their circumstances, the teachings of Buddhism include tolerance towards all human beings and that Buddhism does not discriminate based on sexual orientation.
A significant portion of the outcry against improving LGBTIQ rights revolves around the subject of protecting the country’s children as well as the upholding of the family unit and its values. It was said that moves such as the decriminalisation of homosexuality put children at risk and have the potential to damage the family. Another argument from petitioners against the Bill stated that amending Sections 365 and 365A would then discontinue the protection it offers thereby giving leeway to the exploitation of children. In response to this, the amendment of Section 365B by the Penal Code (Amendment) Act, No. 29 of 1998 was brought up. It states that consent for any conduct that can be considered as grave sexual abuse is inconsequential if it involves a child below the age of 16. In addition to this, if the conduct falls beyond the definition stated in Section 365B, then Section 345 of the Penal Code, which focuses on sexual harassment, can be utilised for the protection of children against sexual advances. The argument in disfavour of the Bill was thereby considered unfounded.
It can be argued that claims such as this and those that mention the threats to the family unit are greatly rooted in prejudice; evidence for this can be found, for instance, in the misinformation and misconceptions present in such claims. One example of this is the opinion that the passing of the Bill to decriminalise same-sex relationships will result in the legalisation of same-sex marriage. In actuality the Bill does not focus on same-sex marriage and its passing will not make it permissible. This is because they are simply two different matters.
How it is possible to continue making erroneous statements in the face of glaring amounts of evidence and global social reforms? Unmistakably, there is a lack of awareness of an array of issues such as this. It is fair to demand that the leaders and changemakers, both political and religious, possess accurate information and sufficient knowledge on the matters they speak about and to hold them accountable when they do not. Exploiting the facets of history, culture and religion to uphold the marginalisation of social groups and drive prejudice is unjust more so since sexual and gender diversity is substantially evident in Sri Lanka’s history. The religions used to argue against the rights of the LGBTIQ community are those whose teachings promote love, acceptance, compassion, eliminating hatred and causing no harm unto others.
This raises one ultimate question: how much of the outcry is for the benefit of the public and how much of it is to uphold personal biases and values?
