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Ray of hope in magistrate’s remark, but long way to go for transgender freedom
View(s):Fort Magistrate Priyantha Liyanage recently admonished police to stop making derogatory comments about transgender people in a development that was seen as encouraging by a community that has long suffered in Sri Lanka.
The magistrate was hearing a case following the arrest of five transgender people by the Kollupitiya police for allegedly violating quarantine guidelines and in court described them as “wes walagaththa pirimi” or “men in disguise”.
Justice Liyanage maintained that there must be more recognition and acceptance of more than two genders. The suspects were released on personal bail while the case continues.
The statement was not binding, but it was “still persuasive” and could be considered as progressive in accepting and integrating the transgender community, said Aritha Wickramasinghe, a lawyer and LGTBQ activist. This sort of reprimand from a judge could stop police from their continued persecution of transgender people.
“As the statement wasn’t legally binding, we have no guarantee that similar statements will be made again,” said Thiyagaraja Waradas, a Director of the Community Welfare and Development Fund and Colombo University lecturer. It would have had bigger impact had it come from the Supreme Court. But it was a step in the right direction, he agreed, and could be a stepping stone to authorities being more accepting of the transgender community.
Sri Lanka does legally recognise the identity of transgender people and they are able to change their gender on documents such as birth certificates and the national identity card. This has to some extent help them to face challenges such as having service sector employees questioning their identity in public. However, there is a long road ahead.
The Penal Code still criminalises “carnal intercourse against the order of nature”. This has left room for “vague interpretation” which police use as a grounds to arrest transgender people. “Cheating by personation” is also an offence and is the pretext under which police claim transgender people are
“in disguise”.
“It should be clear that this law does not prohibit a person being in disguise,” said Mr Wickramasinghe. “An offence is committed when you engage in impersonation to cheat someone of their property or assets.” The police abuse the law by applying it against transgender people. This was “grossly unacceptable”.
It was clear that transgender people do not steal identities to cheat anyone of their belongings. They are giving expression to who they are. But the police use these legal provisions to threaten the community and cause a sense of fear among them, even extorting money from or blackmailing them.
There has been research, including by Human Rights Watch, on how police commit physical and sexual abuse of transgender people. Many victims are reluctant to file counterclaims as they feel powerless and intimidated by police, causing a failure of accountability.
Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND, insisted that public officials like police and doctors must be educated and sensitised on this subject. This would help change how they perceive transgender people and be a significant
step towards normalising of the community
within Sri Lanka.
The law that incriminates them must be abolished, she held, and it should be made clear that it is illegal to discriminate against sexual minorities. The judiciary must also be more educated and advocative of the LGBTQ community.
Bhoomi Harendran, a transgender activist, also pressed for law reforms. She raised concern, too, that prevailing legislation did not protect transgender people. Non-discriminatory policies and attitude changes must be initiated within the public sector.
COVID-19 has affected the transgender and LGBTQ community. Many are forced to quarantine with families who often don’t accept their sexual identity. This has resulted in a spike in mental health problems, activists pointed out.
As LGBTQ people are scorned as “criminals” and “perverts”, there are barriers to their accessing healthcare, social services, education and employment. Access to adequate mental health services such as counselling are limited due to stigma that can be traced back to colonial times.
Transgender women, in particular, find
themselves the target of severe abuse. Without money and support, their voices go unheard, campaigners said. Many issues are “swept under
the rug”.