The Inspector General of Police, Sri Lanka, issued Circular No. 2740/2022 (Crime Circular No. 03/2022) on 27 December 2022 titled “Matters to be considered when dealing with transgender persons and persons who have gone gender transition”. It instructs the Police to prevent discrimination against transgender persons. In November 2023, the circular was reportedly amended to replace all instances of the phrase ‘transgender persons and persons who have undergone gender transition’ with ‘LGBTIQ community’ (lesbian, gay, bisexual, transgender, intersex, queer) to make it more inclusive.
BACKGROUND
The Circular is a result of a writ application (No. 425/2021) filed in the Court of Appeal alleging several occasions where the police had discriminated against or harassed LGBTIQ persons. In response, the Attorney General promised that the Police would abide by existing criminal law and the right against discrimination guaranteed under Article 12(2) of the Sri Lankan Constitution. In 2016, the Ministry of Health provided for legal recognition of gender change.
KEY POINTS
Complaints & Investigation: The Unit of the Prevention of Abuse of Children and Women will investigate any complaints of harassment, whether made by or against a transgender person. Upon the completion of investigation, the Police Legal Division will make decisions on whether there should be a prosecution.
Arrest, Search & Detention: An arrested transgender person has to be searched and inspected with due regard to decency, by a male or female officer as appropriate. If detained, transgender persons must be kept in the custody of a female warden or officer, free of harassment.
Training: Lectures and workshops at police training centres must not include speech capable of discriminating against or marginalising transgender persons.
Preventing Misuse of Criminal Provisions: While action can be taken under the “unnatural offences” and sexual abuse provisions (sections 365, 365A, 365B, 365C) of the Penal Code, 1885 (Sri Lanka), arrest or anal or vaginal examination should not be carried out under it without a formal complaint or reasonable grounds. Legal action also cannot be taken for concealing transition unless done with criminal intent, and possession of contraceptive pills or condoms by itself is not a crime under the Vagrants Ordinance.
SIGNIFICANCE
The circular affirms that transgender persons and other LGBTIQ persons are entitled to equal treatment in the implementation of criminal law. The circular acts as an important tool to challenge harassment and discrimination at the hands of the Police. However, the circular clarifies that the Police must continue to follow existing legal obligations, including action against engaging in “unnatural offences” that criminalises queer intimacy.
READ THE CIRCULAR HERE