Submission to the Universal Periodic Review of Mauritius for LGBT people
31st Session of the Universal Periodic Review; 3rd Cycle
While since the 1st and 2nd Cycles of the UPR in 2009 and 2013 respectively, the Mauritius Labour Party (Parti Travailliste) led government spearheaded laws and reforms for lesbian, gay, bisexual and transgender (LGBT) persons in Mauritius, over the past years, backpedalling on a decade of progress made, LGBT rights are seemingly alien to the authorities, leave alone conditions of LGBT persons are worsening and their aspirations not given due considerations.
LGBT persons in Mauritius are legally entitled to protection from discrimination at workplace and in their daily lives as well as the right to donate blood; owing to the Employment Rights Act 2008 and the Employment Relations Act 2008 as well the Equal Opportunities Act 2008; the latter amended and promulgated in 2012.
Cycles 1 and 2 recommendation to Mauritius
Canada, Australia and Ireland recommended to the Mauritian government to amend the Sexual Offences Bill 2007 or repeal article 250 of the Criminal Code 1838 of Mauritius to decriminalise the crime of “Sodomy”. In 2009, the Mauritian government accepted the motion to amend the Sexual Offences Bill 2007 upon recommendation of Canada. The anti-sodomy law, while applicable to both heterosexual and homosexual individuals, severely fuels the prejudices against LGBT persons. Efforts to repeal article 250 failed due to severe opposition of the Mouvement Socialiste Militant in 2007-08 on the basis of morality; therefore, doing away with the Sexual Offences Bill 2007.
The United Kingdom recommended to the Mauritian government to take measures as may be appropriate to prevent discrimination based on sexual orientation, as well as for the Equal Opportunities Act 2008 to allow for legal acknowledgement of homosexual couples and their human rights. Application of the provisions of EOA 2008 is sufficient to allow for marriage equality. Despite the provisions for the application of the Equal Opportunities Act 2008, and non-definition of “spouse” in the Civil Status Act 1982 as “a person civilly or religiously married to another person of the opposite sex”, the Mauritian government uses the definition of “spouse” in the Protection from Domestic Violence (amendment) Act 2016 “…a person who has been civilly or religiously married to a person of the opposite sex” so as not to allow for the legal acknowledgement of homosexual couples and their human rights.
LGBT issues highlighted in the report
In its report to the member committee of the UPR, the YQA highlighted three main issues common and cutting across for LGBT individuals in Mauritius:
Violence and Hate: An alarming 60.2% of LGBT persons in Mauritius reported being victims of discrimination, stigmatisation and/or violence due to their real or perceived sexual orientation and/or gender identity. Events such as presence of anti-LGBT supporters at the 12th edition of the Gay Pride in Mauritius in 2017; alleged humiliation by a transgender person at the Sodnac Police Station in 2016; and, death threats, intimidation and harassment of LGBT activists are common; without authorities taking appropriate actions to investigate and hold transgressors accountable.
Marriage Equality and Civil Partnership: 73.1% of LGBT persons believe that Marriage Equality and/or Civil Partnership should be the main priority to be tackled for LGBT persons. Despite efforts to push forward recognition of LGBT persons in formal same-sex relationships, the Mauritian government has been lacking in consideration to move forward marriage equality and civil partnership. Recognition of marriage equality and/or civil partnership would ensure that the social, cultural and economic benefits and rights enjoyed by these persons; such as housing rights, spousal social benefits, social-security, inheritance rights, universal pensions, insurances, loans and other institutional rights are maintained. People who do not have these rights to enter into marriage and/or civil partnership are thus, in a disadvantageous position as they do not enjoy the same benefits and rights.
Decriminalisaiton of Sodomy: Article 250 of the Criminal Code 1838 of Mauritius makes reference to ‘Sodomy’ and ‘Bestiality’, which have been amalgamated together under a single section and is hence, suggestive of the fact that the two acts, through different are being treated as being of similar severity. The Constitution of Mauritius guarantees the fundamental rights and freedoms of the individual, protection of right to personal liberty and protection of home and other property. Therefore, as long as Sodomy is conducted between consenting adults, is a matter of freedom and privacy of these individuals. The State, therefore, cannot interfere in the private life of individuals and the right to engage in such sexual activity relates to bodily integrity.
Recommendations
In light of the above, the YQA recommends the following in respect to actions to be taken by the State Party:
- Develop and implement policies and programmes (e.g. training courses) for police officers, judges and prosecutors and conduct awareness-raising campaigns for the general public on the rights of lesbian, gay, bisexual and transgender persons;
- Amend article 282 of the Criminal Code Act 1838 by inserting direct indication of the hate motive against people based on their real or perceived sexual orientation, gender identity and gender expression as aggravating circumstances;
- Abide by provisions of the application of the Equal Opportunities Act 2008; and thereby, amending the Protection from Domestic Violence (amendment) Act 2016 in order to recognise marriage and/or civil partnership for same-sex couples in the definition of ‘spouse’; and,
- Repeal article 250 of the Criminal Code Act 1838 with a view to decriminalise consensual sodomy between consenting individuals of legal age (with reference to the Convention of the Rights of the Child) so as to be in line with the Mauritian Constitution as well as the Covenant on Civil and Political Rights (CCPR).
Thanks to the YQA Research and Advocacy Team and ILGA for their support.
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