What's Wrong with Being Gay? It's OK: A Critical Review of the Rights of Same-Sex Couples in Sri Lanka

Abstract

Human Rights have developed in stature and content over several decades, especially since the end of the Second World War. Sri Lanka, a party to most of the major human rights treaties in the world, remains reluctant to properly recognise and advance the rights of same-sex couples, where the topic is considered a social taboo. It has become controversial since it challenges the status quo of society's prevailing social, cultural, and religious values. Using the doctrinal approach embedded in the Qualitative methodology with the use of thematic analysis in reviewing primary sources of the Constitution, statutes and decided case law, and secondary sources inclusive of journal articles this study endeavours to examine whether the existing legal framework can adequately protect the rights of same-sex couples in the county. The results reveal that prevailing social, cultural, and political ideologies do not fit well with recognising or enhancing same-sex couples' rights in Sri Lanka. The existing legal framework does not provide adequate safeguards and protections for same-sex couples. The country's Penal Code criminalises sexual intercourse between people of the same sexes. While the Supreme Court has held that the proposed amendment to the Penal Code that seeks to decriminalise sexual intercourse between same-sex couples is compatible with the Constitution, the amendment remains as a Bill without much debate and discussion. Compared to Sri Lanka, even though countries such as India have decriminalised sexual intercourse between same-sex, the lack of political will and the social taboos attached to recognising or accepting same-sex couples as part and parcel of the society have negatively affected the enjoyment and worthwhile contribution of such to the community as well. Therefore, it is suggested that the authorities take adequate measures to recognise and enhance same-sex couples' rights in Sri Lanka, keeping to its international human rights obligations.