CEDAW committee rules that criminalisation of same-sex intimacy between women is a human rights violation

Apr 28, 2022

In March 2022, in a landmark decision by The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Sri Lanka was found to be violating the rights of a lesbian and leading LGBTI activist who was subjected to discrimination, threats and abuses due to the country’s Penal Code that criminalises same-sex sexual activity.

The case was brought in by Rosanna Flamer-Caldera, the Executive Director of Equal Ground (a member of the TCEN); and sets a major legal precedent, holding that the criminalisation of lesbian and bisexual women violates the CEDAW Convention.

The CEDAW Committee stated that ‘Sri Lankan authorities have subjected Ms Flamer-Caldera to gender-based discrimination and violence, and had not taken any legal or other measures to respect and protect her right to a life free from gender-based violence, or to eliminate the prejudices to which she has been exposed as a woman, lesbian and activist.’

Find below a short interview with Rosanna Flamer-Caldera speaking about her experience fighting for her rights in the UN.

  1. The criminalisation of same-sex sexual conduct in Sri Lanka has its origins in 19th century British colonial law. Yet, a few years ago, you challenged its current form and brought your case to the UN by submitting a formal complaint against the Sri Lankan Government. What urged you to undergo such a process, and why it was important to you and the LGBT+ community in Sri Lanka?

It was because the unfortunate part of Sri Lanka’s laws that criminalize same-sex adults and same-sex relationships is that we are unable to challenge it in a court of law.

We do have a savings law clause in the Constitution that prohibits that. And so I thought that it would be good if we have some kind of ruling from a UN body and, that it would prompt the Sri Lankan government to revisit this area and try and sort something out in order to decriminalize. Of course, that is very optimistic. And of course, we can see what’s happening right now with the country. So I don’t know when and how any of this is going to be implemented.

  1. According to the CEDAW findings, Sri Lanka violated your rights as being a lesbian you were subjected to discrimination, threats and abuses due to the country’s Penal Code that criminalises same-sex sexual activity. How’s the recent victory expected to change the whole narrative around lesbian and bisexual women in Sri Lanka? How can decisions coming from courts or tribunals influence social and political behaviours so deeply rooted in the colonial past?

I think that the decisions coming from a UN body like the CEDAW are very important because they do have reverberations within countries that have signed on to all of the optional protocols and the treaty itself. I believe that Toonen versus Australia was a prime example of that. However, we are not in Australia. We do not operate the way Australia operates. It’s much harder for us, but at least there has to be some kind of precedent also set not just for me but for women loving women all over the world.

  1. CEDAW is the main international mechanism aiming to tackle gender-based violence and promote gender equality worldwide. Despite its great importance and potential, its current form often is not fit for purpose for women of colour or LBTI women. CEDAW finds it challenging to speak clearly about the rights of all women of all sexualities. What should be the viewpoint of LGBT+ activists and organisations who use CEDAW as a point of reference to inform their strategies?

I think anything such as the CEDAW recommendations or even recommendations from other treaty bodies, does put a certain pressure on governments to seem to be doing the right thing in their countries. And I think we have to take all of these opportunities to be able to make changes in countries such as ours that are stubbornly holding on to old British colonial laws. I believe that this particular set of recommendations and the CEDAW findings is extremely important. And it is a point of reference because there is now an international treaty body, an international convention that has actually ruled in favour of LGBTIQ rights in all countries and in particular, in this instance, lesbian, bisexual, women loving women rights.