Sri Lanka: Protecting transgender persons: Going beyond rule by circular

An opinion piece by Mathuri Thamilmaran, National Legal Advisor – Sri Lanka at the International Commission of Jurists

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 as the foremost perpetrators of human rights violations against LGBTI individuals. Developments in the last few months saw both the Sri Lanka 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 2023, the HRCSL launched in all three national languages 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 transgender child (Guideline 09: Ensure the Best Interest of 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) 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 marginalize and violate the fundamental rights of LGBTI individuals. When the case was heard in court, the Attorney-General appearing for the IGP stated that a circular would be issued containing instructions on steps 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 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 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 marginalization of transgender persons should be allowed in police trainings, 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 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 criminalizes “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 or any other person is a person other than he, or such other person really is”. As the illustrations featured in section 399 make clear, “cheating by personation” is applicable in circumstances 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 do not conform to stereotypical gender norms. The Ordinance acts as a law regulating “decency”, penalizing certain social behaviour, such as behaving in a ‘riotous and disorderly manner’, ‘wandering’, ‘idling’, ‘gather or collect alms under false pretense’, ‘endeavor 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’ 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 cognizance of how these provisions are discriminatorily used against LGBTI individuals by the police nor does it provide for remedies to address this trend.

International Human Rights Law and Standards

Sri Lanka is a party to all core international human rights treaties. Article 26 of the International Covenant on Civil and Political Rights (ICCPR) prohibits discrimination and guarantees equal protection to all persons before the law; its provisions have been interpreted by the UN Human Rights Committee (the body of experts that monitors implementation of the ICCPR) in the case G v. Australia (2017) to include transgender persons under the category of “sex”. Article 9 of the ICCPR guarantees the right to liberty to “everyone”, including LGBTI persons, regardless of their real or imputed sexual orientation, gender identity etc., which the Human Rights Committee has confirmed in its General Comment No. 35 (Liberty and security of person, 2014). Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), guaranteeing the right to health, has been interpreted by the Committee on Economic, Social and Cultural Rights in General Comment No. 22 (Right to Sexual and Reproductive Health, 2016) to recognize the right to health of transgender persons as requiring positive State protections due to their being at greater risk of human rights abuses than others. Similarly, the Committee established under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in General Comment No.2 (Implementation of article 2 by State Parties, 2008) requires that States adopt special measures to protect transgender persons from torture and guarantee effective redress mechanisms for transgender victims of torture under the Convention.

Since 2010, the Committee on the Elimination of all Forms of Discrimination against Women (CEDAW) has also been referring to sexual orientation and gender identity in its General Recommendations. Last year in its findings and recommendations adopted in the case brought by Rosanna Flamer–Caldera, Executive Director of EQUAL GROUND, CEDAW noted that the Sri Lankan State needed to provide effective protection against gender-based violence and discrimination against lesbian, bisexual, transgender and intersex (LBTI) women by introducing comprehensive legislation, providing access to effective civil and criminal remedies, and health and financial support. More importantly, the Committee also requested the State to collect statistics on hate crimes and gender-based violence against LBTI, to provide training to law enforcement agencies on the Convention on the Elimination of all Forms of Discrimination Against Women, its Optional Protocol and the Committee’s general recommendations, and to raise awareness of the human rights of LBTI women so that violence against them would require active State intervention.

The Yogyakarta Principles have emphasized States’ obligations to foster legal institutions that offer LGBTI individuals “equal protection of the law,” including equal access to civil and criminal remedies. The Yogyakarta Principles recommend that States vigorously investigate acts of violence based on sexual orientation and gender identity and prosecute and punish perpetrators without any prejudice while providing appropriate remedies for the victims. The Principles also encourage States to undertake training programmes and awareness raising for judges, court personnel, prosecutors, lawyers and others regarding international human rights standards and the principles of equality and non-discrimination, including in relation to sexual orientation and gender identity.

The additional State obligations in the Yogyakarta Principles +10 (YP+ 10) of 2017, recommend that national human rights institutions (like the HRCSL) ensure that in their programmes and activities they take action on human rights issues relating to sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC), mainstream those issues in all their functions, including complaint handling and human rights education, and promote the inclusion of persons of diverse sexual orientation, gender identity, gender expression and sex characteristics in their leadership and staff.

Going beyond

While recent steps, such as the HRCSL Guidelines mentioned above, are encouraging, their real-time application is yet to be seen. There has been no campaign to date by the HRCSL or the police to publicize these developments or educate the public on any remedies available when the conduct of police officers falls short of the standards established by the guidelines/circular.  In practice, activists have confirmed that the police circular continues to be flouted with harassment, abuse and violence still being the norm.

Further the HRCSL guidelines and police circular relate to a specific target population, i.e., transgender persons, when in reality the whole spectrum of LGBTI persons face intimidation and violence by the police on a daily basis due to the existence of penal laws that are ‘interpreted’ as criminalizing consensual same-sex sexual relations and the Vagrants Ordinance.

The HRCSL guidelines have a specific focus on the police when they could have had a more expansive application, since it is not only police officers who are responsible for human rights violations against LGBTI individuals. In addition, the Guidelines do not address State obligations prescribed in the Yogyakarta Principles and in YP+10, including those that relate to national human rights institutions, such as the HRCSL. For example, the HRCSL could disaggregate data in relation to LGBTI cases and identify common issues of concern on which actions should be taken. This has not been done to date.

Long-term concrete steps in the form of law reform need to be on top of the advocacy agenda to prevent rule by circular. The decriminalization of consensual same-sex relationships is an important first step to protect the rights of sexual and gender minorities. The International Commission of Jurists (ICJ) has previously called for the repeal of the centuries old Vagrants Ordinance, and if needed to review and replace in the Penal Code or through specific legislation any part of the Ordinance that requires retention. Any new law brought to replace the provisions of the Vagrants Ordinance would need to be in conformity with Sri Lanka’s international human rights obligations. Further, national authorities, including the HRCSL, should step up and engage with activists to support the Protection of Transgender Rights Bill that has been in the works for the last few years.

While guidelines/circular can only provide temporary protection yet to be determined, long-term reform in adherence to international human rights law and standards would provide permanent protection for long-marginalized LGBTI individuals.