In Mauritius, supreme court finds constitutional protection against discrimination on the ground of sex includes sexual orientation

By Carmel Rickard, 13 October 2023
Flag of Mauritius (photo credit: David_Peterson via pixabay)
Flag of Mauritius (photo credit: David_Peterson via pixabay)
The supreme court of Mauritius has delivered a landmark judgment that effectively decriminalizes gay sex. The judges declared that a section of the island state’s penal code is unconstitutional in that it violates the right of gay men not to be discriminated against. In short, [the decision] decriminalise[s] gay sex, between consenting adults, in private. More specifically, the judgment declares that section 250(1) of the criminal code of Mauritius is unconstitutional because it discriminates against gay men. [...T]he judges said that while [petitioner] claimed that several constitutional principles were infringed by the disputed sections, the key question for them to decide was whether section 250 (1) violated the constitution right to protection from discrimination. This, in turn, meant they had to consider whether the constitutional right not to be discriminated against on the basis of ‘sex’ should be read as including the right not to be discriminated against on the basis of ‘sexual orientation’. Quoting from international law and related decisions made by the courts of several other countries including South Africa and Botswana, the Mauritian judges concluded that, indeed, sex should be read as including sexual orientation. They said it was a ‘well settled principle’ that the constitution was a living document that had to be given a ‘generous and purposive interpretation, especially when it comes to the interpretation of provisions which enshrine fundamental rights’.
Read the full article here: African Lii


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