Submission to the United Nations Committee on Economic, Social and Cultural Rights
Follow-up on the Recommendations of the 5th Periodic Report for Mauritius – Discrimination on the grounds of sexual orientation and gender identity
The fifth periodic report of Mauritius (E/C.12.MUS/5) was considered at the 14th and 15th meetings of the United Nations (UN) Committee on Economic, Social and Cultural Rights held on 26 and 27 February 2019. Subsequently, the concluding observations of the fifth periodic report were adopted by the Committee at its 30th meeting held on 08 March 2019, wherein, request was made at paragraph 68 thereof, in accordance with the procedure on follow-up to concluding observations adopted by the Committee, for the State party, that is, Mauritius, to provide, within 24 months of the adoption of the concluding observations, information on the implementation of the recommendations contained, inter-alia, at paragraph 16 with regard to the revision of the Equal Opportunities Act.
LGBT issues highlighted in the submissions
Mauritius still allows discrimination based on sexual orientation, specifically through the criminalisation of consensual same-sex sexual acts and the lack of legal recognition of same-sex couples; and does not consider gender identity as a protected ground under the Equal Opportunities Act. This demonstrates that the recommendation of the Committee has not been fully implemented.
With the support of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World), in its submission to the United Nations Committee on Economic, Social and Cultural Rights, the YQA highlighted the following issues affecting LGBT individuals in Mauritius:
Inclusion of trans people in the Equal Opportunities Act
The Young Queer Alliance deplores that provisions of the Equal Opportunities Act do not define gender identity nor provide for explicit protection from discrimination based on gender identity.
The following amendments to the Equal Opportunities Act would have ensured its compliance with the Committee’s recommendations:
- Integration of the definition of gender identity provided by international human rights law into section 2 of the Equal Opportunity Act;
- Either explicit recognition of gender identity as a protected ground, or (based on international jurisprudence and definitions) direct explanation that the definition of sex is inclusive of sexual orientation and gender identity.
Moreover, to ensure equality in treatment and equality in the protection of the economic, social and cultural rights of all groups of people, Mauritius has to clearly indicate, the timeframe for amending the Equal Opportunities Act so as to confer equal protection for all persons, irrespective of their gender identity.
- the notion of “the neuter” concerning ‘sex’, ‘gender’ and ‘gender identity’ is legally recognised and applicable in “all other enactments in force”, including the Equal Opportunities Act;
- if in the affirmative, the effective remedies for victims of discrimination which have occurred so far, including through judicial and administrative proceedings; and
- if in the negative, the effective remedies to be taken including through judicial and administrative proceedings and give clear timelines for same.
Consensual same-sex sexual acts
In June 2020, the Supreme Court of Mauritius authorised four activists to challenge the constitutionality of Section 250(1) of the Criminal Code.
In February 2021, the State Party has moved for the Plaint with Summons to be dismissed, implying that people shall continue to be criminalised for up to 5 years of imprisonment irrespective of the act being consensual.
Marriage equality
The Equal Opportunities Act defines “spouse”, in relation to a person in a general and neuter form (“the person to whom one is, or has been, civilly or religiously married”, Section 2).
However, in the Protection from Domestic Violence (Amendment) Act, “spouse” is defined as “… a person who is or has been civilly or religiously married to a person of the opposite sex; is living or has lived with a person of the opposite sex as husband and wife; or whether living together or not with a person of the opposite sex, has a common child with that person” (emphasis added).
In order to fully comply with the Committee’s recommendations, consensual same-sex sexual relations needs to be decriminalised and same-sex couples and their rights should be recognised.
Infrastructural considerations for trans people
Trans people in Mauritius deplore that it is difficult to gain acceptance and respect. School settings remain a place of great challenge for trans people; them being the victim of perpetual harassment and bullying due to their gender identity. Owing to non-recognition of people based on their gender identity, trans people deplore that they are deprived of many rights; inter-alia, not being able to be defined on papers as their preferred gender, or being kicked out of public washrooms by security guards.
As one of the remedies for victims of discrimination, the Equal Opportunities Commission could have proposed amendments to design guidance for commercial and non-residential buildings as well as design sheets concerning the Planning Policy Guidance. The amendments would have encouraged non-discriminatory practices such as gender-neutral facilities to create greater accessibility for bathrooms and toilet facilities by trans people in such new building and facilities construction.
Way forward
The Young Queer Alliance condemns that amendments to laws criminalising same-sex consensual relationships have not yet been made; marriage between persons of the same sex is still not a reality; and recognition, non-discrimination and protection of trans persons are still much awaited.
Such blatant inaction is regrettably the manifestation of the tyranny of the majority, inasmuch that LGBTQ issues remain a highly sensitive issue in Mauritius in view of the delicate socio-cultural and religious fabric of the Mauritian society; whereby, a conscious choice has been made to deny minority groups, including LGBTQ people of the protection from discrimination of their economic, social and cultural rights, and which hence, is a long-standing practice of gross injustice.
The YQA hopes that the Mauritian State considers the submission made to the CESCR and acts upon it.
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