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27 July 2023
An opinion piece by Mathuri Thamilmaran, National Legal Advisor – Sri Lanka at the International Commission of Jurists
A state minister’s recent comment has once again brought to the forefront the need to include comprehensive sex education in the Sri Lankan school curriculum. Back in 2010, the then UN Special Rapporteur on the Right to Education commented in his report to the General Assembly that “sexual education must pay special attention to diversity, since everyone has the right to deal with his or her own sexuality without being discriminated against on grounds of sexual orientation or gender identity. Sexual education is a basic tool for ending discrimination against people of diverse sexual orientations.” Indeed, the experiences faced by lesbian, gay, bisexual and transgender (LGBT) students in Sri Lanka indicate that comprehensive sex education should include learning about sexual orientation and gender identity and expression (SOGIE) in order for schools to be an inclusive safe space for all students.
LGBT students worldwide face discrimination, bullying, harassment, violence and other forms of abuse on a routine basis in their formative adolescent years at school. A majority of LGBT individuals in Sri Lanka remember well and speak about the abuse they endured in school, including incidents of sexual violence by students junior and senior to them. The endemic nature of such bullying, harassment and abuse against LGBT students requires immediate action on the part of the education authorities to address and prevent such acts. Instead, what usually happens in educational settings is that other students are instigated to further harass already at-risk LGBT students.
Acts of bullying, harassment and abuse are often driven by harmful gender stereotypes, stigma and prejudice rooted in cultural beliefs about gender roles and gender expression. As a result, LGBT students often face teasing, ridicule, rumours, social isolation, physical and sexual assault, among other forms of abuse. Research shows that such abuses have a profoundly harmful impact on LGBT students, including on their physical and psychological health, leading to loss of confidence, anxiety, guilt, depression, withdrawal, and even to self-harm and ultimately suicide. LGBT students are likely to feel unsafe at school, miss classes, or deserting school altogether, thereby damaging their educational and employment prospects, which, in turn, lead to further disadvantage, including their social and economic exclusion. These are real and present concerns LGBT students still face today in their school lives in Sri Lanka.
The Law
The Prohibition of Ragging Act of 1998 was enacted with the stated aim of preventing violence against students in schools, universities, and other higher education institutes. Section 17 of the Act includes government schools within the interpretation of an ‘educational institution’. The Act defines Ragging as “any act which causes or is likely to cause physical or psychological injury or mental pain or fear to a student or a member of the staff of an educational institution”, while the provision on criminal intimidation prohibits verbal or written threats ‘to cause injury to the person, reputation or property of any student or a member of the staff with the intention to cause fear to the victim or to compel the victim to do things which they are not legally required to do’.
Sri Lanka’s 1978 Constitution guarantees in its Fundamental Rights Chapter the right to equality before the law and equal protection of the law to all persons (Article 12). Specifically, Article 12 (2) enumerates the prohibited discrimination grounds as: race, religion, language, caste, sex, political opinion and place of birth, but it does not mention SOGIE among them. But the Sri Lankan government has indicated before various UN bodies that ‘the prohibited grounds of discrimination under Article 12 (2) of the Constitution are non-exhaustive, and discrimination on the grounds of sexual orientation is implicitly prohibited.’
Sri Lanka is a party to all core international human rights treaties. Therefore, the rights to equality and non-discrimination protected under these treaties apply to all Sri Lankans. In line with international human rights law, LGBT students have the right to an education free from violence and discrimination. The Universal Declaration of Human Rights, the Convention against Discrimination in Education, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child (CRC) all protect the right to education.
UN human rights treaty bodies, including the Committee on the Rights of the Child (CRC Committee), the Committee on the Elimination of Discrimination against Women (CEDAW Committee) and the Human Rights Committee have on many occasions raised concerns about SOGIE-based violence and discrimination in education and have called on States to take measures to prohibit, prevent and punishthe harassment, bullying, and expulsion from schools of LGBT children, including through raising public awareness and implementing safety and support measures. Further, the CEDAW Committee has commented on the need to conduct studies and collect SOGIE-disaggregated statistical data on education, to inform policy development.
The CRC obliges States to protect children from all forms of physical or mental violence, including in education, and sets binding standards to protect children’s rights to non-discrimination, life, survival and development, as well as the right to be heard. The CRC Committee issued General Comment No.4 of 2003 on adolescent health and development, stating, among other things, that the right to non-discrimination under the CRC is guaranteed also with respect to ‘adolescents’ sexual orientation’. ItsGeneral Comment No.13 of 2011 on freedom from all forms of violence also identified ‘lesbian, gay, transgender or transsexual’ children as being in potentially vulnerable situations.
Further, the CRC Committee in its General Comment No.20 of 2016 on the Implementation of the Rights of Adolescents acknowledged that lesbian, gay, bisexual, transgender and intersex adolescents ‘face persecution, including abuse and violence, stigmatization, discrimination, bullying, exclusion from education and training, as well as a lack of family and social support, or access to sexual and reproductive health services and information’ and that ‘in extreme cases, they face sexual assault, rape and even death’. Recognizing the impacts these acts have on their lives the CRC Committee emphasized the rights of all adolescents ‘to freedom of expression, respect for their physical and psychological integrity, gender identity and emerging autonomy.’ The Committee also called on States to end such exclusionary practices and raise public awareness about them, to repeal all laws that criminalize or discriminate based on SOGIE, and to enact anti-discrimination laws to this effect. The CRC Committee further called upon States to develop a mandatory sex education curriculum for students that contains comprehensive, accurate and age-appropriate information based on scientific evidence and human rights standards. According to the Committee such curriculum should include details on ‘gender equality, sexual diversity, sexual and reproductive health rights, responsible parenthood and sexual behaviour and violence prevention, as well as to preventing early pregnancy and sexually transmitted infections.’
In its most recent review of Sri Lanka in 2018, the CRC Committee raised concern about SOGIE-based discrimination and violence against children. In its Concluding Observations the Committee recommended the adoption of ‘a proactive and comprehensive strategy containing specific and well-targeted action, including affirmative social actions to eliminate discrimination against children in marginalized or vulnerable situations, including …….lesbian, gay, bisexual, transgender and intersex children’ and to ‘combat discrimination against lesbian, gay, bisexual, transgender and intersex children, including by decriminalizing consensual same-sex sexual acts, prohibit the harassment of transgender children by law enforcement personnel and bring perpetrators of violence, including of sexual abuse of lesbian, gay, bisexual, transgender and intersex children, to justice’.
Principle 16 of the Yogyakarta Principles of 2007 (which are a set of principles on the application of international human rights law in relation to SOGIE) and the Yogyakarta Principles +10 of 2017 also reaffirm international law obligations on the right to education, and the obligation to treat all students equally without marginalization or exclusion, and request States to prevent SOGIE-based bullying and violence.
Moving Forward
There are scores of affected LGBT students who are unaware of their rights and/or are afraid to reveal their SOGIE due to the stigma and abuse they may face. Such students suffer in silence.
Decriminalization of consensual same- sex sexual relations is a necessary first step for LGBT individuals, including students, to live without the fear caused by the legal branding of their nature and existence as “illegal”. The inclusion of SOGIE as prohibited discrimination grounds in the Fundamental Rights protection afforded by the Constitution and/or the enactment of a separate anti-discrimination law that includes SOGIE among the prohibited discrimination grounds are also essential to ensure that LGBT individuals be guaranteed the full gamut of human rights on the basis of equality with everyone else in Sri Lanka.
The enactment of anti-bullying policies/law, professional development of teachers including trainings on SOGIE and necessary tools for prevention of bullying, harassment and abuse, use of the Anti-Ragging Act, comprehensive sex education with a curriculum that includes information on the diversity of sexualities and gender in a manner consistent with international human rights standards are other basic steps that can begin to build a supportive environment for LGBT students and enable them to live without fear.
Ensuring that these basic steps are taken would lead to LGBT students feeling safer and to their increased attendance at school. LGBT students in Sri Lanka have endured bullying, harassment, and abuse for decades. It is time for the State to step in and protect them.
