What constitutes citizenship in a country? What are the benefits of citizenship? What can we expect from it? What are our rights and entitlements as citizens? For those of us fortunate enough to be privileged and mainstream, we hardly think – or need to think – about citizenship in this way. We can take it for granted. For those of us who are heterosexual and conform to the sexual behaviour expected of us, we enjoy the perks of citizenship without much thought. But the recent events held to commemorate Pride week, and discussions held around issues that haunt the lesbian, gay, transgender and bisexual (lgtb) communities in Sri Lanka, brought up the fact that, for these communities, citizenship remains a vexed legal, socio-political subject.
Equal Rights
The Sri Lanka constitution guarantees equal rights to all its citizens. Yet it is commonplace that discrimination and inequalities occur. For instance, Sri Lankan women, on the whole, are highly discriminated when it comes to political representation and certain other rights such as ownership/ access to property, particularly of state land. Our society hardly takes into account the fundamental needs and priorities of those who are differently-abled or disabled – they are usually consigned to their homes or a limited number of state institutions. Amongst those disadvantaged because they do not belong to a dominant majority, and because they do not conform to the norm, are women who love other women.
Art ahead of its Time
Film, literature and theatre have often been at the vanguard of exploring social taboos, spelling them out, boldly portraying the discrimination and violence faced by characters who break them. In Sri Lanka we had a ground-breaking film by Asoka Handagama entitled ‘Flying with One Wing’ (2002) which depicted the story of a transgendered person. In 2003 Visakesa Chandrasekeran wrote the Sinhala language play ‘Katuyahana’ about gay men which entered the final round of the State Drama Festival. Much earlier, in 1971, Punyakante Wijenaike had written into her novel Giraya, an undercurrent of homosexuality as a reason which destroyed the married life of Kamini and Lal. (Unfortunately, this important aspect of the novel was expunged in Lester James Peiris’ film based on the novel). Today, the Bolo Theatre which works in both English and Sinhala languages, and also uses movement in its theatre pieces, has staged several productions under the theme ‘Voicing Silence’ which portrays same-sex relationships and issues. Amongst its exemplary performance pieces have been ‘Saman’s Story’, ‘Abhirami’s Story’ and ‘Nachchi’. These artistic works include path-breaking documentary films in which these communities have courageously narrated their experiences and outlined their victimization as well as hopes for change.
Even as this cultural work has been timely, and has contributed a great deal to the fact that we can speak and write about these issues today to a far greater extent than we could 25 years ago, culture also remains the ground on which the most conservative of ideas flourish. Cultural tradition is often used rhetorically to shame and punish those who do not conform to its dominant standards. Women who love other women – lesbians – are shamed and cornered because they refuse to conform to what is culturally expected of ‘good women’, embodying femininity in dress and behaviour, marrying men, having children and reproducing the nuclear family. Just as with gay men, lesbians are thrown out of their homes by their parents and siblings, shamed in public, and made the target of violence. While these incidents which occur with disheartening regularity in our society has got some coverage in the mainstream press, less discussed are the citizenship rights that are denied to gay men and lesbians because civil union partnerships remain unrecognized in our country. One possible reason for this is that same-sex relationships are usually coded in sexual terms by mainstream society, not as couples abiding by the norms of domestic relationships.
Missed Opportunities
“My girlfriend and I have been living together for four years. We have been staying in rented houses. Recently, we decided to look into the prospect of buying our own home. Many advertisements attracted us by the prospect of ‘our dream home’. We approached many banks, with proof of our income… To our surprise, every bank refused our application for a home loan. My partner and I were not married.”
It is indeed alarming that many international banking chains which claim equal opportunities and provide housing loan facilities to same sex partners in other countries are prevented from doing so in Sri Lanka, because the law does not provide the support for non-discrimination against these marginalized groups. An inquiry with one of the banks revealed that even supplementary credit cards can only be given to a member of one’s family, thus preventing same sex couples from enjoying a common credit card bill for household expenses. The gay and lesbian community is criminalized under section 365 A of the Sri Lankan penal code. They are detained, in some instances deported, and subjected to violence by the police. When they experience either domestic partner violence, or custodial abuse in the police stations, they are unable to protect themselves through the law because of their criminalized status. Discrimination Same sex couples are also denied the chance to define a ‘family’ in non-heteronormative terms and denied the joy of parenting. While a few single women have managed to adopt children in Sri Lanka, it has taken a lengthy process of about four years. Lesbian couples who have been in a steady relationship for several years have stated they would like to share the responsibility of adopting and raising a child but because they are not seen as a legally married, heterosexual couple, this is not a possibility. Let’s look at another example. In an instance when one partner of a same sex couple is hospitalized, the other partner is often not allowed the same access that is allowed to a member of the patient’s family. Family in this sense includes only one’s parents, husband, wife, or siblings. Once again, since the state refuses to accept the union of a same sex couple as a ‘family unit’, gay and lesbian people are denied legitimacy as the primary care givers to their partners. Thus it is not a surprise that same sex couples are discriminated even in death. When a person dies intestate (without leaving a will), it stands to reason that his / her property is divided amongst his/her dependent’s and heirs. As the person’s same sex partner is not recognized on paper as his or her wife or husband, the chances of any of the property being allocated to the partner will depend only on the discretion of the deceased’s legally recognized heirs. The surviving partner cannot claim the property as a right, even though he/she has been in a domestic partnership with the deceased for many years. Changing Trends While Sri Lanka lags behind, elsewhere governments in both eastern and western countries have stepped in to erase the anomalies that affect gay and lesbian people. In India, the Delhi High Court in July 2009 declared that section 377 of the Indian Penal Code which criminalized the consensual sexual acts of same sex adults in private was a violation of their rights to privacy, liberty, health and equality enshrined in the Indian constitution. In December 2007 the supreme court of Nepal ruled that the new democratic government must create laws to protect LGTB rights. In Kenya, the Human Rights Commission took up the issue in November 2009 prior to drafting a new constitution and stated that in a democracy inclusive of diversity and based on respect for human rights all citizens – irrespective of gender identity and sexual orientation – should be granted full citizenship rights and protection from non-discrimination. Even a Catholic country such as Portugal legalized gay marriages in May 2010 and recently, the first same-sex marriage of a lesbian couple took place. In the U.S.A. several states have legalized gay marriage. In Sri Lanka, same-sex relationships between women became illegal almost by accident when Prof. G.L. Peiris amended the penal code in 1995. Many of the amended provisions were for the better, except in the case of homosexuality. The wording in the penal code was specifically about men. In the 1995 amendment the word ‘women’ was suddenly added, and an amended penal code which was expected to promise equality for women ended up criminalizing them! Justice Edwin Cameron of South Africa’s Constitutional Court once stated that ‘admittance of gays and lesbians is the ultimate measure of a society’s capacity to view humanity in its fullness and of its commitment to equality, justice, secularism and humane co-existence.’ Judging by this standard, Sri Lanka has a long way to go!
