Rosanna Flamer-Caldera v Sri Lanka (CEDAW, 2022): The First International Case on Lesbian Criminalisation

by | Sep 7, 2022

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About Loveday Hodson and Kseniya Kirichenko

Loveday is an Associate Professor of Law at the University of Leicester. Her primary research interest lies in the intersection of international human rights law, gender, and sexuality. She has published widely in the area of women’s rights, as well as on conceptions of LGBT family rights in international law. Most recently, she was co-organiser of a large, high-profile project in which a number of key international judgments were re-written from a feminist perspective, the output of which was published in September 2019 as Feminist Judgments in International Law (Hart). This book was the winner of the American Society of International Law’s 2020 Certificate of Merit for a preeminent contribution to creative scholarship. In 2019, she additionally published an edited collected, Research Methods for International Human Rights Law: Beyond the Traditional Paradigm (Routledge). Additionally, she has an interest in social movements and has worked with a number of NGOs on the rights of LGBT families. In 2010, she published a monograph entitled NGOs and the Struggle for Rights in Europe with Hart Publishing. From 2011 to 2018, she was co-convenor of the European Society of International Law’s interest group on Feminism and International Law, in which role she organised a number of conferences, seminars and panels.  She sits on the editorial board of Feminist Legal Studies. Kseniya Kirichenko (she/her) is an intersectional feminist activist, international human rights lawyer and researcher. She received her law degree from Novosibirsk State University (Siberia, Russia) where she taught legal courses for ten years before shifting to full-time human rights practice focusing on gender and sexuality. Since 2007, she has been leading programmes on strategic litigation, national and international advocacy, human rights research and education, monitoring and documentation. Kseniya also served as a Board Member of the EuroCentralAsian Lesbian* Community (EL*C), was an International Fellow with the Global Network for Public Interest Law (PILNet) and a Visiting Scholar with Columbia Law School. In 2016, she joined ILGA World in Geneva, Switzerland, where she is currently a UN Programme Manager. Since January 2021, Kseniya is pursuing her PhD research at the University of Leicester, UK. 

Image Description: The words CEDAW appear along with the logo of the United Nations. UN Logo – The olive branches are a symbol for peace, and the world map represents all the people and the countries of the world. White and blue are the official colours of the United Nations

Earlier this year, the Committee on the Elimination of Discrimination against Women adopted ground-breaking views in Rosanna Flamer-Caldera v Sri Lanka, a case concerning discrimination against lesbians. Sri Lanka criminalises consensual same-sex sexual acts between adults of any gender, according to section 365A of the Penal Code. Rosanna Flamer-Caldera, a Sri Lankan national, is an open lesbian and a high-profile LGB/TI activist, whose gender expression does not conform to stereotypes. Focusing on the wide impact that criminalisation has, she brought to the Committee’s attention the long-term and continuing stigmatisation, discrimination, abuse, threats, and surveillance that she experienced, affecting her activism, employment, and private life. She refused to report such incidents to police due to the risk of arrest under section 365A. She complained of an ongoing violation of her rights under articles 2 (a) and (c)-(g), and 5 (a) and 16 of the Convention. Further arguments under articles 7 and 15 were raised in an intervention submitted by Professor Dianne Otto.

Sweeping aside Sri Lanka’s arguments on the admissibility and merits of the complaint, the CEDAW Committee concluded that several obligations under the Convention had been breached. In its far-reaching views, the Committee identified six discrete violations of the Convention:

  1. Direct and indirect discrimination emanating from the criminalisation of same-sex sexual activity between women (art 2(a) and (d)-(g)). The Committee’s intersectional analysis led it to recognise that certain groups of women, particularly lesbians, are rendered particularly vulnerable to discrimination, and that such laws compound discrimination against women.
  2. Gender-based violence against women by state and non-state actors, which was exacerbated by the criminal law (art 2(c)-(f) in conjunction with General recommendations nos 19 and 35). The Committee recalled that states should repeal laws allowing, tolerating or condoning gender-based violence.
  3. A failure to eliminate stereotypes and prejudices based on being a woman, a lesbian and an activist (art 5(a) in conjunction with art 1). The Committee specifically mentioned negative stereotypes of lesbians and noted that the decriminalisation of consensual same-sex sexual acts is essential to fight stereotypes.
  4. A violation of the right to participate in NGOs and associations (art 7(c)). The Committee highlighted threats and abuse faced by the author in connection with her activism – particularly, that she and her organisation had been placed under surveillance, and their materials had been considered pornography. The Committee recalled that states should encourage women’s NGOs and support ‘women’s ability to participate as active members of civil society.’
  5. A failure to ensure non-discriminatory access to the protection and remedies (art 15(1)). The Committee noted that women are disproportionately criminalised, including as lesbians, and concluded that the criminalisation is incompatible with the right to file complaints about abuse or threats based on sexual orientation.
  6. A violation of the right to family and relations (art 16). The Committee emphasised that women’s equality in the family should be ensured for any family form, pointing out that article 16 of the Convention ‘applies also to non-heterosexual relations.’ In relation to the author’s situation, it further noted that the criminal law created barriers to the author’s ability to establish relationships.

The Committee called for the decriminalisation of consensual same-sex conduct between women and the adoption of comprehensive measures to protect lesbian, bisexual, transgender and intersex women.

This is a remarkable decision for several reasons. Not least, it is the first international human rights case to address the criminalisation of lesbian women’s sexuality. The violations that the Committee identifies as resulting from criminalisation go well beyond the autonomy and privacy rights centred in decriminalisation cases brought by gay men, such as Nicholas Toonen (Human Rights Committee) and Jeffrey Dudgeon (European Court of Human Rights). In Flamer-Caldera, the CEDAW Committee drew a direct line between criminalisation and the author’s experience of discrimination, abuse, and violence. The message from the Committee is unambiguous: criminalisation facilitates and fuels discrimination and violence against women. Yet, no passive victims here: Flamer-Caldera’s activism and leadership was emphasised in the Committee’s telling and centred in its analysis. The Committee adopted an intersectional approach that acknowledged the various aspects of Flamer-Caldera’s identity, including her activism and gender expression. This is a refreshing and important take on LGB/TI rights that distinguishes the Committee’s approach from the single-lensed approach taken by other human rights bodies.

Further, the Committee – somewhat unusually for a treaty body – engaged seriously with the arguments raised in an intervention from an academic, using Professor Dianne Otto’s arguments to push forward its conclusions into even more far-reaching territory than that indicated by the victim herself.

More than 40 countries still criminalise same-sex sexual activity between women. It’s extremely significant to have this first UN human rights treaty body case on LGB/TI issues taken against an Asian country (there have so far been 40+ cases on SOGI reviewed by UN treaty bodies, most of them from Europe, including Eastern Europe, and to some extent Central Asia, North America, Australia, New Zealand, and only one case against Colombia). Prior to this case, the only ‘non-western’ subject encountered in the UN’s LGB/TI jurisprudence has been persons seeking (and denied) asylum protection in Western Europe or North America. This case, then, is an important step towards a richer, fuller representation of LGB/TI lives whose potential reach is being recognised by activists as global.

Where to next, then, when there is so much to celebrate in this decision? The political turn in this decision was refreshing, but it is possible to identify in the Committee’s reasoning a suggestion that securing for lesbians dyadic, intimate relationships that resemble heterosexual marriage is an end that LGB/TI activists globally share. The Committee swerved discussion of the violence that takes place within familial relationships. There is also more discussion to be had about the role of psychologists and counsellors in supporting the mental health rights of LGB/TI people, or sexual and reproductive rights of LB/TI women. In so far as it referenced the victim’s gender expression, this decision is part of an on-going, wider story of the Committee’s increasing willingness to demonstrate CEDAW’s importance to trans-women, as well as gender-non-conforming and non-binary persons. As such, there is reason to be optimistic that in future contributions it will continue to set the agenda for human rights treaty bodies.

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