This June 2021, the United Nations Human Rights Council celebrates the 10th anniversary of the first resolution on protection against violence and discrimination based on Sexual Orientation and Gender Identity.
The International Service for Human Rights (ISHR) seized the opportunity to salute the Independent Expert’s work and contributions in the daily life of LGBTQ people and the advocacy work with the United Nations through a joint statement which was co-signed by the Young Queer Alliance. Furthermore, the ISHR recognises the Independent Expert’s inclusive approach and constant focus on identifying the sources of violence and discrimination based on Sexual Orientation and Gender Identity.
As a matter of fact, the Independent Expert accentuated the vital role of national, regional and international civil societies, despite the increase shrinking of civil society spaces.
Noteworthy to point out, the Independent Expert’s call to States to ‘uphold an enabling environment for civil society working for the human rights of trans, non-binary and gender-non conforming persons, and to respect and protect their rights to freedom of assembly and association’ was largely supported by the ISHR. Besides, advocates for LGBTQIA+ rights should have a proper platform to express their concerns about issues faced by the LGBTQIA+ persons and holds governments accountable for the human rights violations happening in the country.
Additionally, the ISHR urged for the reinstatement of general debates at all sessions, with the option of civil society participation through video statements. In the same vein, the ISHR welcomed the Expert’s acknowledgement of the Yogyakarta Principles and the Yogyakarta Principles plus 10, as authoritative articulations of existing international human rights law in relation to issues of sexual orientation and gender identity, and in their wide application internationally, regionally and nationally.
The UN Human Rights Council Resolution on Human rights, sexual orientation and gender identity
On 17 June 2011, the UN Human Rights Council adopted the Resolution on Human rights, sexual orientation and gender identity as a follow-up and implementation of the Vienna Declaration and Programme of Action.
Upon adopting the resolution, the UN Human Rights Council recalled the universality, interdependence, indivisibility and interrelatedness of human rights as enshrined in the Universal Declaration of Human Rights and consequently elaborated in other human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and other relevant core human rights instruments. The Council also recalled that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration.
The UN Human Rights Council also expressed grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity, and requested the United Nations Commissioner for Human Rights to commission a study, to be finalized by December 2011, documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world, an how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity. Mauritius voted in favour of the Resolution.
In December 2011, the United Nations Commissioner for Human Rights produced its Report, and established that laws criminalising same-sex sexual relations between consenting adults and other laws used to penalise individuals because of sexual orientation or gender identity are discriminatory laws.
The Commissioner reported that, such laws, including so-called “sodomy laws”, are often relics of colonial-era legislation and typically prohibit either certain types of sexual activity or any intimacy or sexual activity between persons of the same sex. The criminalisation of private consensual homosexual acts violates and individual’s rights to privacy and to non-discrimination and constitutes a breach of international human rights law.
For the Human Rights Committee, “adult consensual sexual activity in private is covered by the concept of ‘privacy’” under the International Covenant on Civil and Political Rights. The Committee further establishes that it is irrelevant whether laws criminalising such conducts are enforced or not; there mere existence continuously and directly interferes with an individual’s privacy.
The United Nations Commissioner for Human Rights reported that since 2000, laws criminalising homosexual acts between consenting adults have been repealed in some countries, in some cases courts have overturned these laws and in others, repeal has resulted from a legislative process. The Commissioner also noted that in the context of the Universal Periodic Review, several States – including Mauritius – have accepted recommendations to decriminalise homosexuality.
Mauritius and Section 250
Mauritius voting in favour of the resolution triggered, on Tuesday 28 June 2011, the first ever Private Notice Question on the human rights of LGBTQ persons addressed by the then Hon. Leader of the Opposition, Mr. P. Bérenger to the Hon. Prime Minister, Dr. N. Ramgoolam, asking if Government proposed to bring amendments to the domestic laws which discriminate against homosexuals and indicate the laws to be amended.
Despite Mauritius being a proponent of the UN Human Rights Council resolution, which expressed grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity; the country did not repeal of Section 250.
This June 2021, 10 years after the adoption of the first Human Rights Council Resolution on Human rights, sexual orientation and gender identity, through Section 250 of its pre-independence Criminal Code, Mauritius still criminalises sexual activity or any intimacy or sexual activity between persons of the same sex, therefore, flouting the different Covenants it has adhered to.
Young individuals, supported by LGBTQ organisations in Mauritius including the YQA, have, since 2019, lodge cases at the Supreme Court to ensure that human rights of LGBTQ people are respected. Let us hope that at the end of the legal procedures, human rights for LGBTQ people would be a reality in Mauritius.
Young Queer Alliance