PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW Commission, may constitute discrimination, “even where the intent is to protect LGBT persons deprived of liberty”.214 PART TWO – I The term “effect” has been interpreted by human rights treaty bodies, including the Committee on the Elimination of Racial Discrimination, the Committee on the Rights of Persons with Disabilities and the Human Rights Committee, as prohibiting discrimination without the need to identify a discriminatory motive or intent.215 The Committee on the Rights of Persons with Disabilities makes the point explicitly in its general comment No. 6 (2018), noting – in its definition of direct discrimination – that: “The motive or intention of the discriminating party is not relevant to a determination of whether discrimination has occurred.”216 In the 2016 case of Gabre Gabaroum v. France, the Committee on the Elimination of Racial Discrimination reached a similar conclusion, emphasizing that “presumed victims of racial discrimination are not required to show that there was discriminatory intent against them”.217 As elaborated below, the requirement of intent is clearly absent in indirect discrimination cases and, in this connection, the Committee on the Elimination of Racial Discrimination has criticized States whose laws fail to meet the requirements of the Convention.218 Regional human rights bodies, including the European Court of Human Rights,219 the Court of Justice of the European Union,220 the African Commission on Human and Peoples’ Rights221 and the InterAmerican Commission on Human Rights have each held that the intent of a party is irrelevant to a finding of discrimination.222 GUYANA: INTENT UNDER ARTICLE 4 (3) OF THE PREVENTION OF DISCRIMINATION ACT, 1997 “Any act or omission or any practice or policy that directly or indirectly results in discrimination against a person on the grounds referred to in subsection (2), is an act of discrimination regardless of whether the person responsible for the act or omission or the practice or policy intended to discriminate.” 214 Inter-American Commission on Human Rights, Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, para. 160. 215 Committee on the Elimination of Racial Discrimination, V.S. v. Slovakia (CERD/C/88/D/56/2014), para. 7.4; Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (a); and Human Rights Committee, Simunek et al. v. the Czech Republic (CCPR/C/54/D/516/1992), para. 11.7. 216 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (a). 217 Committee on the Elimination of Racial Discrimination, Gabre Gabaroum v. France (CERD/C/89/D/52/2012), para. 7.2. While the case was decided using the language of “discriminatory effect”, it was – in practice – a case concerning direct racial discrimination in employment. 218 See, for example, CERD/C/USA/CO/7-9, para. 5. 219 European Court of Human Rights, Biao v. Denmark, Application No. 38590/10, Judgment, 24 May 2016, paras. 91 and 103, and the Concurring Opinion of Judge Pinto de Albuquerque, para. 7, identifying as a potential exception to this rule, the adoption of positive action measures designed to eliminate de facto discrimination. 220 In one case decided by the Court, public statements were made by the director of a company indicating that migrant workers would not be considered for a job because “customers were reluctant to give them access to their private residences”. The Court did not consider the intent of the director (which it was argued was motivated by a desire to retain customers, rather than an intent to discriminate) a relevant consideration, making a finding of discrimination. See Court of Justice of the European Union, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, Case C-54/07, Judgment, 10 July 2008, para. 16. 221 African Commission on Human and Peoples’ Rights, Open Society Justice Initiative v. Côte d’Ivoire, communication No. 318/06, Decision, February 2016, para. 144. 222 Inter-American Commission on Human Rights, Tide Méndez et al. v. Dominican Republic, Case 12.271, Report No. 64/12, 29 March 2012, para. 158. 31