The 63-page report, “‘All Five Fingers Are Not the Same’: Discrimination on Grounds of Gender Identity and Sexual Orientation in Sri Lanka,” finds that people who don’t conform to gender norms face arbitrary detention, mistreatment, and discrimination accessing employment, housing, and health care. The government should protect the rights of transgender people and others who face similar discrimination, Human Rights Watch said.
“All Sri Lankans, regardless of their gender identity or sexual orientation, should be able to exercise their rights without discrimination or abuse,” said Yuvraj Joshi, Gruber fellow in the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch and author of the report. “While the government has begun to address these issues, it should urgently seek to eliminate laws and practices that discriminate on the basis of gender identity and sexual orientation.”
Human Rights Watch interviewed 61 lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in four Sri Lankan cities. Sixteen of those interviewed, most of them transgender or men who have sex with men, said they had suffered sexual or physical abuse by the police. More than half of this group said that police had detained them without cause at least once.
Consensual same-sex conduct is criminalized under sections 365 and 365A of the penal code. Other laws, including a vaguely worded Vagrancy Law and a law against “cheating by personation,” are also used to target gender non-conforming and other LGBTI people for arrest. Some transgender women and men who have sex with men said that repeated harassment by police, including arbitrary detention and mistreatment, had eroded their trust in Sri Lankan authorities, and made it unlikely that they would report a crime.
“They won’t protect someone like me,” said “Fathima,” a 25-year-old transgender woman in Colombo who did not involve the police after thugs beat her in 2012.
Transgender people also face discrimination in getting health care, including being labeled mentally ill; extra inquisitiveness and lack of privacy from medical staff; and unwillingness by some medical staff to tend to them.
“Their words are more piercing than needles,” one transgender man said of staff at public hospitals and clinics who asked unnecessary personal questions.
These abuses take place within a broader legal landscape that fails to recognize the gender identity of transgender people without abusive requirements; makes same-sex relations between consenting adults a criminal offense; and enables a range of abuses against LGBTI people by state officials and private individuals.
“The LGBTI community needs laws that protect us, not harm us,” said Rosanna Flamer-Caldera, a Sri Lankan activist and founder of Equal Ground, a Colombo-based group that advocates for the rights of LGBTI Sri Lankans. “We expect the new government to scrap discriminatory laws and protect our human rights. We urge the government to be in open dialogue with us.”
Sri Lankan law currently provides no clear path to changing legal gender, Human Rights Watch said. Transgender people are rarely able to obtain a national identity card and other official documents that reflect their preferred name and gender, exposing them to constant and humiliating scrutiny. “Krishan,” a 40-year-old transgender man in Colombo, said that the first question in job interviews is about his gender, not his qualifications.
The Health Ministry, working with the National Human Rights Commission, has proposed a procedure through which transgender people could change the gender on their documents after a diagnosis from a mental health professional. While that would be a step forward, the authorities should allow people to change their legal gender on all documents without requiring psychiatric diagnosis or medical treatment or procedures, Human Rights Watch said.
Sri Lanka has ratified core international human rights treaties that obligate the government to protect the rights of individuals against violence, discrimination, and other type of abuses by both private actors and government officials and agents.
There is increasing recognition that a state’s failure to provide transgender people with a simple and accessible procedure to change their gender on official documents violates their rights. A joint statement in 2015 by 12 United Nations agencies, ranging from UNICEF to the World Food Programme, called on governments to ensure “legal recognition of the gender identity of transgender people without abusive requirements,” such as forced sterilization or treatment.
“When transgender people carry documents that mention a sex or gender that does not match our identities, we face obstacles at every step,” said Bhoomi Harendran, a transgender rights activist in Colombo. “If the Sri Lankan authorities started issuing documents that reflect our gender identity without asking us to get medical treatment, those few pieces of paper would profoundly change our lives.”