Back in 2014, Sri Lanka’s Attorney General acknowledged that discrimination against LGBT people is unconstitutional and that they are protected under the Constitution’s right to equality and freedom from discrimination provisions. Despite these guarantees, discrimination and police persecution of LGBT people persist in Sri Lanka.
Saisha*, a 22-year-old woman, filed a complaint with the Human Rights Commission of Sri Lanka, alleging that the local police station assisted her parents in unlawfully confining her because she was a lesbian. During police interventions and court proceedings, Shevindri Manuel, iProbono’s Program Manager in Sri Lanka, and our community of pro bono lawyers, supported Saisha. She had just told her parents about her sexual orientation and that she was in a consensual, same-sex relationship. Severe abuse was then perpetrated upon her by her parents, who took her to several Catholic priests in an attempt to forcefully “convert” her to heterosexuality. Saisha claimed that her parents kept her locked up at home for several weeks because of her sexual identity. She was unable to work as a result of her illegal detention, depriving her of her right to employment and earn a living.
Owing to the severe torture that was inflicted upon her, Saisha ended up sending an email to a friend about her situation, who then filed a police complaint alleging that the adult woman was being held captive and abused at her house. Saisha’s parents informed the police that she was confined because of her sexual orientation when she was brought to the station. In an attempt to obtain ‘proof’ of her sexual orientation, the police threatened to remand the victim on the grounds that she was a lesbian and confiscated her phone and laptop. An attempt was made to subject Saisha to a psychiatric evaluation by a Judicial Medical Officer (JMO) in order to prove that she suffers from a mental illness as a result of her homosexuality.
According to the Code of Criminal Procedure Act No. 15 of 1959, it is illegal for the police to subject anyone to such examinations without a Court order if that individual does not consent to being examined. It was also inappropriate for the police to confiscate her personal belongings when there was no evidence that she had committed a crime.
Saisha’s parents also filed a police complaint, alleging that she was mentally sick as a result of her homosexuality and that she required detention. In this lawsuit, iProbono and our panel lawyers assisted the victim by litigating that she was being wrongfully confined in her house by her parents.
The police were attempting to secure a court order requiring the woman to be evaluated by the JMO. Saisha’s lawyers told the police that only certain sexual activities (regardless of sexual orientation) were criminalised in Sri Lanka, and that being a lesbian was not one of them. Following pressure from iProbono’s lawyers in Sri Lanka, the local police station finally accepted that no crime had been committed, and Saisha was free to leave her confinement and find safe, alternative accommodation.
The case was heard by an Interim Magistrate at the Divisional Magistrate’s Court in March 2022.
According to the parent’s lawyer, a President’s Counsel, Saisha was suffering from a mental disorder and should be subjected to a psychiatric evaluation by a JMO because of her homosexuality. Despite the fact that no specific offence was charged and that there was no legal basis for a medical examination, the Interim Magistrate ordered that the victim be brought before a JMO for examination before the next hearing. iProbono’s lawyers filed a revision application with the District High Court to appeal this decision. The lawyers argued that the Interim Magistrate’s decision was not based on any legal reasoning and was therefore illegal.
In April 2022, the case was dismissed by the Wattala Magistrate Court. The Magistrate was then informed of the revision application filed in response to the Interim Magistrate’s order. The parent’s counsel then made more submissions, alleging that Saisha had been ‘brainwashed’ and ‘abducted’ by her partner. This allegation was made despite the fact that Saisha had claimed to be in a consensual relationship and had previously stated to the local police station that she does not want to live with her parents.
iProbono’s lawyers rebutted this argument, claiming that because the victim was 22 years old, she was an adult with full competence to make her own decisions. A statement published by the Sri Lanka College of Psychiatrists rejecting homosexuality as a mental illness was also shared with the Magistrate. Further evidence was presented to establish that the victim did not suffer from any mental illness that warranted her confinement, as she held a Bachelor’s Degree in Business and worked as a teacher. Saisha’s lawyer further stated that her sexual orientation as a lesbian is not a crime under Sri Lanka’s Penal Code. In a U-turn for the police, the local police station declared in its final report that there was no evidence of Saisha committing any crime.
Following these arguments, the Magistrate concluded that there was no proof of mental illness and that Saisha had not committed any crime. The case was then dismissed, with the Court acknowledging that homosexuality is neither a disease of the mind nor a criminal offence under the Penal Code.
This case demonstrates the urgent need for legal reform in Sri Lanka to end the persecution of LGBT+ people. On the police’s request, magistrates often issue orders requiring LGBT people to undergo forced anal and vaginal examinations, as well as forced STI testing. Under iProbono’s Movement Accelerator Programme, we are committed to using the law to address discrimination against LGBT individuals in the country. We are currently drafting a toolkit that will guide the police on LGBT laws and the necessary procedures to follow in cases involving LGBT people.
You can reach out to Shevindri Manuel, iProbono’s Program Manager, Sri Lanka at shevindri.manuel@dev.matsio.com/matsio/oldiprobono for more information on our work in the country.
*Name changed to protect identity.
Featured Photo Credit: Chung Sung-Jun, Getty Images.
