Having seen my previous article, Dad started sending me emails on sexual and reproductive health. One caught my fancy; a report by the UN special rapporteur, Mr Anand Grover, on “the right of every one to the enjoyment of the highest attainable standard of physical and mental health”. Basically it is about the right to health.

The report speaks about the effects of criminalisation of same-sex conduct and sexual orientation, sex work, and HIV transmission. I was immediately interested in one segment, which is currently very much talked about in Sri Lanka as we are enjoying the “PRIDE” week at the moment; The effects of criminalisation of same-sex conduct and sexual orientation.

It is mentioned in the report that the criminalization of private, consensual sexual interaction between adults represents a significant impediment to the realization of the right to health of all persons, particularly those against whom the law is directed. Mr Anand Grover emphasizes that all human rights are universal, indivisible, interdependent and interrelated, and therefore, states that criminalization of same sex conduct infringes on not only the right to health, but also on various other human rights, including the rights to privacy and equality. In turn, infringement of these human rights impacts indirectly on the right to health.

In Sri Lanka, same sex conduct is illegal.
Article 365 of the penal code;
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment that may extend to ten years”

Article 365A (as introduced by the “Penal Code (Amendment) Act, No. 22 of 1995”)
“Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of any act of gross indecency with another person, shall be guilty of an offence and shall be punished with imprisonment of either description for a term which may extend to two years or with a fine, or with both and where the offence is committed by a person over eighteen (18) years of age in respect of any person under sixteen (16) years of age shall be punished worth rigorous imprisonment for a term not less than 10 years and not exceeding 20 years and with a fine and shall also be ordered to pay compensation of amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such a person.”

Article 365, is understood to prohibit anal intercourse by a man with another man, a woman or an animal. 365A was added in 1995 primarily to include female to female sexual activity under the broader wording of performing an act of “gross indecency”.

Having to talk about criminal laws regarding the same sex conduct while the gay community is celebrating the “PRIDE” of their sexual orientation and gender identity is very unfortunate. Don’t we understand that such laws take away our freedom to be proud about ourselves?

In our society, there is a social perception that homosexuals are abnormal and that they are criminals. And also there are lots of negative and discriminatory beliefs towards same-sex conduct. Those myths drive the marginalized and vulnerable groups, for example people living with HIV, to more dangers. Negative and discriminatory beliefs towards same-sex conduct are driving activities underground and crippling HIV prevention efforts.

Mr. Anand Grover explains that due to historical circumstances, most significantly, the association of HIV with the gay community the enjoyment of the right to health is disproportionately impacted as it pertains to HIV &AIDS diagnosis and treatment. For instance, in the Asia-Pacific region, almost 90 per cent of homosexual men have no access to HIV prevention or care. While this is due to a range of circumstances, a general atmosphere of fear has been the predominant factor in preventing HIV positive individuals from accessing health services and treatment.

In many societies same sex conduct are treated as a problem that needs to be corrected, ignored or used to legitimize violence directed towards these individuals. Attempts to “cure” those who engage in same-sex conduct are not only inappropriate, but have the potential to cause significant psychological distress and increase stigmatization of these vulnerable groups.

From the angle of Human rights, health services must be accessible for all, without discrimination, especially for the most vulnerable or marginalized sections of the population. A right-to-health approach requires that States decriminalize same-sex consensual conduct, as well as repeal laws that discriminate in respect of sexual orientation and gender identity, in order to meet core obligations of the right to health and create an environment enabling full enjoyment of the right.

Isn’t it our responsibility to create a safe environment where everybody have the right to access health services without any discrimination and can be proud of their sexual orientation and gender identity without any punishments?