Summary:
In Mauritania, the criminalization of gender nonconformity is effectively achieved through the enforcement of articles related to debauchery, heresy, and acts that contravene Islamic moral standards. As a result, individuals who identify as transgender face the potential of being apprehended solely due to their gender identities and expressions. Moreover, the availability of gender-affirming healthcare services remains non-existent, and transgender individuals are deprived of access to a legal framework for the acknowledgement of their gender. The state’s legislative foundation is firmly grounded in Sharia law, thereby precluding any prospects for legal, medical, and social transitions for transgender individuals. There is also a grave lack of information on the transgender community specifically and the LGBTQIA+ community at large in the country.
Criminalization:
De facto: The legal system in Mauritania criminalizes individuals who identify as transgender, with provisions in the penal code targeting offenses related to debauchery, heresy, and acts that are considered contrary to Islamic moral values.
- Article 264:
The same penalties (one month to two years of jail, 5000 to 150000 ouguiya as a fine) shall apply to anyone who publicly utters songs, cries or speeches contrary to public decency or mroality [……] whoever has publicly drawn attention to an occasion of debauchery or has published an advertisement or correspondence of this kind, whatever the terms.
- Article 306:
Any person who commits a public outrage against Islamic decency or morality, or who violates sacred places or helps to violate them, if this action is not included in the crimes carrying the Ghissass or Diya, will be punished by a correctional sentence of three months to two years’ imprisonment and a fine of 5,000 to 60,000 UM. Any Muslim guilty of the crime of apostasy, either by word or deed in an apparent or obvious manner, will be invited to repent within three days. If he does not repent within this period, he will be sentenced to death as an apostate, and his property will be confiscated for the benefit of the Treasury. If he repents before this sentence is carried out, the Public Prosecutor’s Office will refer the matter to the Supreme Court, with a view to rehabilitating him in all his rights, without prejudice to the correctional penalty provided for in paragraph 1 of this article.
Any person guilty of the crime of apostasy (Zendagha) shall, unless he first repents, be punished by death. Any person guilty of the crime of indecent assault will be punished by a prison sentence of between one month and two years. Any Muslim of legal age who refuses to pray while recognizing the obligation of prayer will be invited to perform it up to the limit of the time prescribed for the performance of the obligatory prayer concerned. If he persists in his refusal until the end of this period, he will be punished by death. If he does not recognize the obligation of prayer, he will be punished by apostasy and his property confiscated for the benefit of the Treasury. He will not benefit from the office consecrated by the Muslim rite.
Enforcement:
While Mauritanian legislation permits the execution of transgender individuals based on these statutes, the death penalty has been under a de facto moratorium since 1987, according to the United Nations. Nevertheless, in January 2020, ten individuals were apprehended for engaging in “indecent acts” and “inciting debauchery” subsequent to their participation in a birthday celebration. Among these individuals, eight were charged with “impersonating women” and subsequently handed a two-year prison sentence. However, this sentence was later mitigated to a period of six months.
Legal gender recognition:
There is currently no established legal framework for transgender individuals to pursue legal gender recognition. The Civil Registry Act (Law N° 96.019 dated 19-06-96) does not contain any specific provisions or restrictions pertaining to the process of changing one’s name or gender markers:
- Chapter 9: On the correction of civil status contracts:
- Article 75:
Correction of civil status contracts is within the jurisdiction of the State Court issued within its territorial jurisdiction and the jurisdiction of the State Court of Nouakchott in respect of contracts issued by diplomatic or consular agents, seafarers, and captains of ships or by civil status officers referred to in article 73 of this Law.
A request for correction may be made by any person having an interest or public prosecutor. The latter must do so automatically if the error or omission changes the nature of the civil status contract.
- Article 76:
The request for correction of material errors shall be addressed to the Public Prosecutor, who shall order that the records be written by registrars.
- Article 77:
No correction requests relating to the date of birth, death, marriage, and divorce shall be received at all.
- Article 78:
The final operative part of the judgment shall be transmitted to the civil status records registrars at the place of registration of the contract.
Case law in Legal Gender Recognition:
No known cases of attempts to obtain legal gender recognition in Mauritania have been found.
Gender affirming healthcare:
Gender affirming healthcare is inaccessible in Mauritania for transgender individuals, and corrective procedures are also unavailable for intersex individuals. While there are no specific laws governing or prohibiting access to such healthcare, the nation adheres to stringent interpretations of Sharia law in its legislation. Given that Sunni Islamic leaders oppose gender-affirming healthcare, it is improbable that it would be readily available and accessible to transgender individuals within the country.
Fatwas:
There are no specific fatwas pertaining to transgender individuals that have been issued by the religious authorities in the country. Nevertheless, given that the country follows Sunni Islam, the fatwas issued by renowned Sunni authorities, such as Al-Azhar in Egypt and the Islamic Fiqh Council in Saudi Arabia, are considered to be applicable. According to these fatwas, transgender individuals are prohibited from seeking gender-affirming healthcare, and sex reassignment surgeries are restricted to intersex individuals exclusively.