Toonen UN case sets precedent for Sri Lanka to follow

In 1988, the Tasmanian Gay and Lesbian Rights Group - now Equality Tasmania - formed to remove Tasmanian laws criminalising consensual sex between adult males in private. Those laws held the harshest penalties in the western world of 21 years imprisonment.

READ MORE: How a four-day working week fits with hospitality

The advocacy group led by Launceston-born activist Nick Toonen and the North-West's Rodney Croome took a human rights complaint before the United Nations Human Rights Committee to repel the laws in 1991. It was the first case to the UNHRC from Australia, and first case regarding sexual orientation in the world.

Three years later, the committee held that sexual orientation was included in the UN's antidiscrimination provisions and was protected under the International Covenant on Civil and Political Rights. The committee found Australia was in breach of its international treaty obligations because of the Tasmanian law.

Mr Toone and Mr Croome turned to Australia's High Court after Tasmanian government was slow to make legislative changes. It was found the state's anti-gay laws were constitutionally overridden by Australia's international obligations. On May 1, 1997 Tasmania became the final Australian jurisdiction to repeal its anti-homosexuality laws.

Meanwhile in Sri Lanka, Equal Ground executive director Rosanna Flamer-Caldera is leading the charge for political and social rights for lesbian, gay, bisexual, transgender, intersex and queer people.

The nation's laws regarding homosexuality have been inherited by the penal code of the British Commonwealth and amended to outlaw any person with any other person engaging in sexual acts deemed "against the order of nature".

"We have been marginalised and discriminated against, not mainly by the law, but particularly by the law, but mainly by society at large," Ms Flamer-Caldera said.

She said advocating to change those laws had been going "quite well" for the past few years.

In 2018, Ms Flamer-Caldera filed a case with the UN Committee on the Elimination of Discrimination against Women (CEDAW). The committee's mandate only covers women.

"It was Nick [Toonen] and Rodney [Croome] that actually opened my eyes to being able to advocate at the UN level," Ms Flamer-Caldera said.

READ MORE: Tourism and building leaders voice support for Mac Point project

"So I thought that since we didn't have any other option, because we have a savings law clause in our constitution, which prevents anything being challenged in a court of law that has been put into effect before 1978. So we can't challenge this and get a ruling from the Supreme Court.

"In 2022 last year the CEDAW committee came up with a huge verdict in my favour."

One of the many recommendations the committee made to the Sri Lankan government was to decriminalise same-sex relationships between women. It also recommended the government should protect Ms Flamer-Calder and her organisation, Equal Ground, so they could continue their work to stop discrimination.

Further moves to amend laws in Sri Lanka's parliament targeting the LGBTQIA+ community are being put forward. However Ms Flamer-Calder said she was wary of those following the detrimental impact of similar action taken in 1995.

In the meantime, she said they had also filed shadow reports with the UN. The UN Periodic Review of Sri Lanka took place in early February, which recommended decriminalisation and policies of inclusion and equality to be put in place.

"In answer to that, our Foreign Minister Mr Ali Sabry made a media announcement that Sri Lanka is going to decriminalise," Ms Flamer-Calder said.

She said barriers remained with the attorney general having previously made homophobic rulings, however she said change was expected in the first half of this year.

The Tasmanian case has been used as a precedent in countries including Botswana, Singapore, Fiji and South Africa.

READ MORE: Two people charged with drink driving

Mr Croome said the decision has played such an important role in freeing the tens of millions of LGBTQI people from stigma across the world.

"It's a source of immense pride and I believe it should be a source of pride for all Tasmanians," Mr Croome said.

He said they had hoped the case would be used beyond Tasmania at the time of the decision.

"I don't think we would anticipate just how widespread the ramifications of the decision would be," he said.

"It's still playing a role, it's something we didn't anticipate."

Why not have your say? Write a letter to the editor here:

Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content: