| Click here for a summary of Sri Lanka’s review at the first cycle and/or the second cycle. |
28th UPR session
Date of review: 15 November 2017
Date of report adoption: 19 March 2018
Document number: A/HRC/37/17
|
SUMMARY SOGIESC issues during Sri Lanka’s 3rd UPR review |
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Equality and non-discrimination
6. Joint Submission 12 (JS12) expressed concern about certain legislation such as sections in the Penal Code that discriminate based on sexual orientation and gender identity. JS12 highlighted that legislation such as the Vagrants Ordinance, the Brothels Ordinance, and certain sections of the Penal Code indiscriminately marginalized and discriminated against the LGBTIQ community and sex workers by means of criminalizing these lifestyles, and allowing persons in positions of authority such as police officers to detain, torture, and verbally and physically discriminate against members of these communities.
7. Joint Submission 3 (JS3) recommended that a framework of legal reform be implemented, which actively prevents and prohibits discrimination against LGBTI persons, particularly in the context of education, housing, employment, accommodation and access to healthcare. Human Rights Watch (HRW) expressed similar concerns.
Fundamental freedoms and the right to participate in public and political life
45. Joint Submission 13 (JS13) noted that lesbian, gay, bi-sexual, trans-gender and intersex (LGBTI) organisations operating in Sri Lanka had suffered from purposefully prohibitive bureaucratic delays to impede their activities. JS13 specifically noted that an NGO, “Equal Ground” had suffered repeated harassment for organizing events that promote the rights of LGBTI people in Sri Lanka, including experiencing unjustified delays in gaining permission from authorities when coordinating activities.
Right to privacy and family life
47. JS3 noted that Sections 365 and 365A of the Penal Code criminalized sexual relations between same-sex individuals, classifying same-sex relations as an “unnatural offence” subject to punishment of up to 10 years in prison.
Right to work and to just and favourable conditions of work
50. JS12 stated that LGBTIQ persons had been shunned from their homes, discriminated in the work place, and that it was difficult for them to find work.
Right to health
58. JS12 stated that estimated 1,000 abortions were being conducted illegally in Sri Lanka per day. JS12 also expressed concern about the lack of a rights-based, extensive discussion on sexual and reproductive health, including but not limited to sexual orientation and gender identity, reproductive stages, contraceptive methods, services related to reproductive and sexual health and relationship from gender perspective.
Children
74. Joint Submission 2 (JS2) noted that Articles 365 and 365A of the Penal Code prohibiting homosexual relations, described as “acts of gross indecency”, might put children in danger as these articles do not explicitly exempt children for the crime, hence a child might be treated as an offender instead of a victim in exploitative situations.
II. Excerpts on SOGIESC issues from the national report
Voluntary pledge set forth in paragraph 93 UPR Working Group Report (2008)
14. A new Bill of Rights is currently being considered as part of constitutional reforms. A Parliamentary Sub-Committee on Fundamental Rights has already presented its final report. The report included explicit rights to life and privacy and extended the right to nondiscrimination by including additional grounds such as disability, gender identity and sexual orientation.
Recommendations set forth in paragraph 128 (2012) – 53
33. The final report of the parliamentary Sub-Committee on Fundamental Rights, recommended that the Fundamental Rights Chapter in the Sri Lankan Constitution include express guarantees of non-discrimination on the grounds of disability, gender identity and sexual orientation. Moreover, the current NHRAP 2017-2021 commits to eliminating any discriminatory provisions in Sri Lanka’s Penal Code.
Civil society concerns
137. Among the key priorities highlighted during the public consultations are: Expediting constitutional reforms and ensuring a strengthened fundamental rights chapter that provides for (i) specific rights such as the right to life and non-discrimination based on sexual orientation and gender identity, (ii) justiciable economic, social and cultural rights, (iii) the justiciability of human rights infringements by non-state actors, and (iv) regional courts with jurisdiction to hear fundamental rights applications; Strengthening safeguards with respect to due process during the arrest of suspects and effectively addressing the incidence of torture as well as undue delays in investigations, prosecutions and convictions in instances of torture; Repealing the PTA and replacing it with a law meeting international standards, and introducing key legislation to criminalise enforced disappearances; Operationalising and adequately resourcing the OMP; Ensuring justice for past violations of human rights, including attacks on journalists.
III. Excerpts on SOGIESC issues by UN agencies
National human rights framework
10. The United Nations country team also noted that an interministerial committee had been appointed to implement the National Human Rights Action Plan (2011-2016) but the lack of a dedicated Ministry to expedite action had resulted in challenges for follow-up. A new national human rights action plan for the period 2017-2022 had been drafted in 2016 in consultation with civil society. However, the revised draft that had been finalized by the Cabinet had reportedly led to the removal of key action points relating to decriminalization of same-sex relations, the vagrancy ordinance and access to health-care services for people living with HIV.
Equality and non-discrimination
12. The Committee on Economic, Social and Cultural Rights expressed concern that discrimination against lesbian, gay, bisexual, transgender and intersex persons was widespread, including in law enforcement, employment, health care, housing and education, and that lesbian, gay, bisexual, transgender and intersex persons had been subjected to threats and attacks on social media on the basis of their sexual orientation or gender identity.
Right to privacy and family life
52. The Human Rights Committee remained concerned at the continued applicability of sections 365, 365A and 399 of the Penal Code to criminalize lesbian, gay, bisexual, transgender and intersex persons and the widespread discrimination and stigmatization of persons on the basis of their sexual orientation and gender identity. It recommended that Sri Lanka amend its Penal Code and consider amending article 12 of its Constitution to explicitly state that sexual orientation and gender identity were prohibited grounds for discrimination. It also recommended that Sri Lanka strengthen measures to protect against violations of the rights of lesbian, gay, bisexual, transgender and intersex persons as well as strengthen awareness-raising and training on their rights.
Right to health
61. The United Nations country team also expressed concern about the lack of availability of youth-friendly health services for adolescents and the lack of access to professional mental health care in the context of post-war reconciliation. It was also concerned that doctors and other medical staff were often unaware of and insensitive to the health needs of lesbian, gay, bisexual and transgender people.
IV. References to SOGIESC issues during the Working Group review
82. Sri Lanka noted that the general right to equality and non-discrimination, reflected in the Constitution, implicitly included non-discrimination on the grounds of sexual orientation, and that the present constitutional reform process included consideration of an explicit guarantee of non-discrimination on the grounds of sexual orientation. It referred to the pronouncement by the Supreme Court that imposing custodial sentences would be inappropriate in cases where the impugned acts were between consenting adults.
86. Uruguay highlighted the abolition of the practice of executions by judicial order, and noted that constitutional reform proposals extended non-discrimination grounds to disability and to sexual orientation and gender identity.
94. Australia welcomed improvements in freedom of expression, and in the quota for women in local government elections. It noted discriminatory laws against women and lesbian, gay, bisexual, transgender and intersex persons and attacks on religious minorities.
V. Conclusions and/or recommendations
Sri Lanka accepted the following recommendations:
116.36 Adopt measures to strengthen the legal framework with the aim of eliminating all forms of discrimination against minority groups in society, based on ethnicity, gender, caste or any other ground (Uruguay);
116.37 Prevent and combat all kind of discrimination, in particular those on the grounds of ethnicity and sexual orientation (Italy);
116.38 Ensure respect for the rights and fundamental freedoms of lesbian, gay, bisexual, transgender and intersex persons, by investigating and sanctioning acts of discrimination and violence against such persons (Argentina);
116.39 Adopt measures to eliminate all forms of discrimination in healthcare settings, including in the context of HIV/AIDS, while paying particular attention to the specific needs of key populations, including lesbian, gay, bisexual, transgender and intersex persons (Portugal);
Sri Lanka noted the following recommendations:
117.19 Amend its laws that discriminate against women, and decriminalize consensual same-sex conduct (Australia);
117.20 Amend the Penal Code, particularly Sections 365 and 365A, to decriminalize consensual same-sex conduct and displays of affection (Netherlands);
117.21 Decriminalize same-sex relations and take concrete measures to combat discrimination and violence against the lesbian, gay, bisexual, transgender and intersex community (Brazil);
117.22 Decriminalize same-sex conduct by repealing Sections 365 and 365A of the Penal Code (Canada);
117.23 Amend the Penal Code, particularly Sections 365 and 365A, to decriminalize consensual same-sex conduct as well as displays of affection (Sweden);
117.24 Modify the criminal code in order to decriminalize consensual sexual behaviour between persons of the same sex, suppress degrading terms that could be used against the lesbian, gay, bisexual, transgender and intersex community, and avoid abuse and harassment by police authorities (Uruguay);
117.25 Decriminalize same-sex consensual relationships and adopt all necessary measures to combat discrimination and violence based on sexual orientation or gender identity, and guarantee access of lesbian, gay, bisexual, transgender and intersex people to health services (Honduras);
VI. Further information
You will find all documents relating to Sri Lanka’s third review at UPR-Info and OHCHR’s websites.