Opinion

Endorsement of an LGBTIQ initiative unconstitutional and therefore unlawful

Published

1 month ago

2025/10/2

On 9 September 2025, the Chairman of the Sri Lanka Tourism Development Authority (SLTDA) and the Sri Lanka Tourism Promotion Bureau (SLTPB) formally endorsed a project spearheaded by EQUAL GROUND (apparently an NGO) to promote and develop LGBTIQ tourism in Sri Lanka. In this letter, titled “Endorsement of the Project on Promoting and Developing LGBTIQ Tourism in Sri Lanka“, the Chairman not only recognised this initiative, but also granted authority to coordinate with the tourism industry of the country.

This endorsement reflects the first state-backed initiative explicitly positioning Sri Lanka as an LGBTIQ-inclusive destination. It sends a strong signal to both domestic and international stakeholders that Sri Lanka is seeking to capture the global “Pink Tourism” market.

Commitments

In his letter, the Chairman endorsed the initiative of EQUAL GROUND and acknowledged the purported value of promoting LGBTQ tourism through Diversity, Equity, and Inclusion (DE&I) programs.

He granted authority to coordinate with tour operators, hotels, training institutes, guides, and drivers to implement the proposed training and awareness programmes. The Chairman further recognised the project as having the potential to diversify Sri Lanka’s tourism markets and to contribute to the expansion of the country’s global tourism footprint.

He has expressed willingness to facilitate and present the programme to the President, the Minister of Foreign Affairs, and the Minister of Tourism and Foreign Employment in order to ensure state-level recognition.

Government Policy

This letter cannot be viewed in isolation. It is a policy pronouncement of the Government, since the SLTDA and SLTPB are state entities under the Ministry of Tourism and Foreign Employment. By empowering EQUAL GROUND to lead on LGBTIQ tourism engagement, the letter reflects an official policy stance that LGBTIQ recognition and promotion are part of Sri Lanka’s tourism development strategy.

The Constitutional Barrier

However, this policy shift and the endorsement of an LGBTIQ initiative is unconstitutional and therefore unlawful. This constitutional inconsistency was proclaimed by the Supreme Court (comprising P. Padman Surasena J (CJ), Yasantha Kodagoda PC J, and Kumudini Wickremasinghe J) in the Special Determination on the Gender Equality Bill (2024). In that case, the Court explicitly held that the Constitution recognises equality only on the basis of “sex” (male and female), and not on “gender” or “gender identity.”

Supreme Court Determination

The Bill titled “Gender Equality Act, No. of 2024” was gazetted on 10 April 2024 and placed on the Order Paper of Parliament on 7 May 2024. Two petitions were filed under Article 120 read with 121 of the Constitution challenging the Bill’s constitutionality.

Intervenient Petitioners (activists and NGOs) later sought to support the Bill, but their petition was dismissed as time-barred.

Key Constitutional Issues Considered Article 12 – Equality:

The Court distinguished between “sex” (biological male/female) and “gender identity” (socially constructed roles/identities). The following passages are cited from the judgment, which illustrate the reasons for the decision:

“In the course of the hearing, it was common ground between the learned President’s Counsel for the Petitioners and the learned Deputy Solicitor General that the word ‘sex’ appearing in Article 12(2) of the Constitution and the word ‘gender’ appearing in many places in the Bill are not the same. Mr. Canishka Witharana, appearing for the Petitioners in SC SD 55/2024, relied on the definitions of those two words contained in Merriam-Webster Online Dictionary and Thesaurus to show this difference. It is worthwhile reproducing those definitions from the said source. The definition for ‘sex’ is given below.

Sex

– either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male, especially on the basis of their reproductive organs and structures.

The learned Deputy Solicitor General similarly cited a definition for ‘sex’ from Black’s Law Dictionary (2nd Edn):

Sex

– ‘The distinction between male and female; or the property or character by which an animal is male or female.’

Thus, the above definitions provided by both the Petitioners as well as the learned Deputy Solicitor General convince us that any person’s sex has to be either male or female and not any other. Moreover, since the definition refers to the reproductive organs and structures as a basis of distinction, I am also convinced that this categorisation of persons is based upon a biological criterion.

On the other hand, the phrase gender identity, according to Merriam-Webster Online Dictionary, refers to a person’s internal sense of being male, female, some combination of male and female, or neither male nor female. The same source has expressed the view that gender expression refers to the physical and behavioral manifestations of one’s gender identity.”

The Court also held:

“Therefore, I am also convinced that the phrase gender identity is a category different from the categories of male or female. Therefore, I am also convinced that there can be only two components under the term ‘sex’. Those components are firstly the category of male and secondly the category of female. I, therefore, hold that gender identity is a phrase that denotes a distinct standalone category that is different to the category identified as sex in Article 12(2) of the Constitution.”

Gender identity – a new category:

Gender or gender identity denotes persons who identify with categories other than male or female. Such categories are commonly represented under the acronym LGBTQ+, referring to Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, and other related identities. However, under the Constitution, no recognition can be accorded to these categories beyond the constitutionally recognised classifications of persons as either male or female.

Gender equality:

The Chairman’s letter was very specific in supporting “Diversity, Equity and Inclusion (DE&I)” programs. Taken literally, such programs may be structured to promote and assure “gender equality.” Clause 3 of the Gender Equality Bill stated that “every person shall have the right to gender equality and no person shall be denied such right.”

However, the Court held that:

“…our Constitution does not recognize the presence of gender equality. The Constitution only recognizes that no person can be discriminated against on the basis of sex. The framers of the Constitution, in their wisdom, deliberately left out recognizing gender equality.”

National Policy:

The Bill referred to a National Policy on Gender Equality and Women’s Empowerment. The Court held that, without incorporating it into the Bill or specifying its content, the policy remained uncertain and external. Such policies cannot be given the force of law, and reliance on them amounts to arbitrariness. In this light, the Chairman’s letter appears to have created a similar unlawful policy framework, which cannot be validly implemented.

Buddhism – Religion:

Tourism in the country must be promoted without tarnishing traditions, culture, and religious practices and beliefs. State and state officials are bound to adhere to Article 9 of the Constitution, which requires the protection and fostering of the Buddha Sasana.

The Court held that a Gender Equality law would compel religious institutions such as Pirivenas, Buddhist Universities, Churches, Mosques, and Convents to admit persons regardless of sex/gender identity. Promoting LGBTQ practices would also undermine Buddhism’s foremost place and the freedom of religion and practice (Articles 10 and 14(1)(e)).

Same-Sex Marriages and Cultural Impact:

The Court warned that giving recognition to gender equality could open the door for same-sex marriage claims, which are contrary to existing marriage laws (Marriage Registration Ordinance, Kandyan Marriage & Divorce Act, Muslim Marriages Act, Tesawalamai), Sri Lanka’s culture, and Penal Code provisions criminalising homosexual acts (Sections 365 and 365A).

Legitimacy Questionable

Every state official, including the Chairman of the SLTDA, assumes office under an oath to uphold and defend the Constitution of Sri Lanka. This oath imposes both a legal and moral duty to ensure that all actions, policies, and endorsements remain within constitutional boundaries. When an official acts in contravention of the Constitution, it raises serious questions of accountability and constitutes a potential breach of constitutional duty. By formally endorsing LGBTQ tourism and granting authority for its promotion, the Chairman has acted in deliberate violation of those constitutional limits. Consequently, the legitimacy of the Chairman’s official acts from the moment of such breach of oath becomes open to serious doubt.

Legal Requirements for LGBTQ Recognition

No policy, law, or regulation promoting LGBTQ rights or recognition can be made under the current Constitution without first amending it. Intended laws need a two-thirds majority in Parliament plus approval by the people at a referendum to become valid and enforceable.

by CaniShka
G Witharana
ATToRneY-AT-LAw

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Opinion

Spending on import of goods we could produce locally

Published

13 hours ago

2025/11/11

Sahan Weerasooriya

It has been reported that Sri Lanka continues to spend vast sums of foreign exchange on importing goods that could be produced domestically with ease. This pattern raises serious concerns. It may be driven, in part, by vested interests profiting from import commissions and easy margins.

Another contributing factor could be the perceived need to cater to foreign tourists, especially in the hospitality sector.

However, this raises a troubling question: are we spending more on imports to serve tourists than we earn from their visits?

Besides food, a wide range of imported items—including building materials and hotel-related paraphernalia—are draining our foreign reserves. While tourism is touted as a major foreign exchange earner, the actual net benefit to the country remains unclear. It may enrich hotel owners and create jobs, but whether it truly strengthens our economy is debatable.

A Ratnayake

Opinion

Mannar wind power project and people’s protests

Published

13 hours ago

2025/11/11

Sahan Weerasooriya

It has been reported that the government has abruptly halted the Mannar wind power project, which was to be launched by a prominent conglomerate.

This conglomerate is widely known to have close ties with the ruling party, and several of its directors currently hold positions in government-linked institutions.

Would a government that has been accused of changing its mind quite frequently, really suspend a multi-billion-rupee project simply because of objections from a small group of citizens in one corner of the country?

Is this a rare instance of the government standing up for ordinary people—or is it something else entirely?

Is it that the government decision has resulted from an internal conflict?

S K Muthukumara

Opinion

Inserting the foot in your mouth

Published

2 days ago

2025/11/10

Thilina Walpola

At a diplomatic reception held in Vienna in the 1960s, British Foreign Minister George Brown sat in his chair enjoying a glass of wine. Then he heard the orchestra strike up a tune. When he turned round he saw a beautiful woman seated beside him. He politely asked her, “Madame, may we dance?” The lady in scarlet dress told him, “No, Mr Brown, for three reasons. First, this is a reception, not a ball. Second, even were this a ball, this would still be a state anthem and not a waltz. And third, were this a ball and not a reception and were that a waltz and not a state anthem, I would still be the Cardinal Archbishop.”

This is a well-known faux pas, a French term meaning an action or remark that causes embarrassment because it is not socially correct. Although we do not hear this phrase today, we still make socially unacceptable remarks every now and then. One day I met an old friend in Colombo who had migrated to Canada a few years ago. I said, “Good to see you again. How is your wife?” He looked at me in a serious way and asked, “Didn’t you know that she passed away a few years ago?” I felt like banging my head against a wall.

Although we dress well we have not been able to check ourselves when we speak to others. Faux pas has been defined by Pundit Michael Kinsley as the truth politicians accidentally speak. At the 1980 Democratic Convention, U.S. President Jimmy Carter extolled the virtues of former Vice President Hubert Horatio Humphrey as “Hubert Horatio Hornblower.”

Major social faux pas

Forgetting someone’s name is a major social faux pas. Sir John Kotalawala addressing an election rally turned to the organiser and asked “What’s that b ….’s name?” I met my former English teacher at a wedding ceremony after a long time. He greeted me, “Hello, Kodituwakku. How are you?” My wife asked me whether I had changed my name from Kodituwakku to Karunaratne. I told him, “Sir, I am not Kodituwakku …” Then he cut me off by saying, “Oh, it’s a faux pas.”

We meet so many people and sometimes we tend to forget their names. It is quite natural. However, when you have to introduce a friend to another person you have to remember his name. By the way, if you have to attend a function, do not go there too early or too late. They are supposed to be social blunders. Remember that we had a President who was always late for Cabinet meetings!

If you have to attend a wedding or interview, dress properly. You should not wear casual clothes for such events. There is no excuse for dressing improperly. However, if you forget someone’s name, you can ask for his name politely. A simple apology will smooth things over. You may have heard of Dr Sigmund Freud’s eponymous slip of the tongue. One day a man arrived at a railway station to buy tickets to Pittsburgh. He went to the ticket counter and asked for “Two tickets to Tittsburgh.” Sometimes people mispronounce your name. One day a wealthy socialite Mrs Stuyvesant Fish attended a fancy-dress ball in Rhode Island. At the entrance she told the butler the theme of the costume as “A Norman peasant.” Later she heard someone announcing “An enormous pheasant.”

Disrespectful and rude

If you keep on checking your mobile phone repeatedly when someone is trying to speak to you, you are committing a social faux pas. Many people view this behaviour as an indication that you are not paying attention to what another person is saying. This is something disrespectful and rude.

Sometimes we misunderstand others. One day Robert Benchley, an eminent author, while leaving a restaurant at night saw a man in uniform. The author thought that he was the doorman and asked him to call a cab. The man in uniform turned round and told him, “I happen to be a rear admiral in the U.S. Navy.” “In that case,” Bentley said, “get me a battleship.”

Another example of social faux pas is excessively dominating a conversation. To avoid hogging the conversation, practise active listening. If you talk to someone, look at his face and maintain eye contact. Ask him thoughtful questions, if necessary.

Talking about women

At a party Ben and Peter were drinking and talking about women. After some time they saw two women coming down the staircase. Ben said, “That’s the woman I was in love with.” Peter said, “That’s my wife.” Ben immediately corrected himself by saying, “I mean the other woman.” “That’s my daughter,” Peter said somewhat angrily.

There are many other instances where you make blunders. One such instance is attending a birthday party empty-handed. If you are unable to decide what to give as a gift, a reasonable amount of money can be given to the birthday boy or girl.

Some women do not like to divulge their real age. Therefore do not press them to do so. On the other hand, both men and women do not like to tell you how much they earn. Such matters are extremely personal.

Intimate personal details

When you strike up a friendship with someone for the first time, make it a point not to share intimate personal details. If you do so, you will make yourself a laughing stock. Reveal your real character to close friends, if it is really necessary.

Finally, bragging is a form of faux pas. One day a young lecturer was invited to deliver a talk on the English Day at a prestigious school in Colombo. Instead of telling the students the importance of English, she started bragging about how she got a postgraduate degree at a young age. Another lecturer began his lecture by telling the audience that he had a doctorate. They do not realise that people are not interested in their academic qualifications. You are judged by your performance.

By R. S. Karunaratne ✍️
karunaratners@gmail.com