CCPR/C/142/D/3149/2018 · Mexico

The author of the communication is A.M.A., a citizen of Mexico born in 1981. He claims that the State party has violated his rights under articles 2, 3, 5, 14, 25 and 26 of the Covenant. The author is a lawyer. The Optional Protocol entered into force for the State party on 15 June 2002.

On 26 June 2014, a call for candidates issued by the National Electoral Institute with a view to selecting and appointing presiding councillors and electoral councillors of the local public authority was published in the Official Gazette of the state of Jalisco. The call for candidates specified that the 25 female candidates and 25 male candidates with the highest scores in the examination would advance to the next stages of the procedure for determining appointments.

On 14 July 2014, the author submitted to the National Electoral Institute his application to register his entry in the aforementioned selection and appointment procedure. He was duly registered and, on 2 August 2014, he took the examination along with 76 women and 133 other men.

On 16 August 2014, the results of the examination were published and the names of the 25 male and 25 female candidates who would proceed to the next stage were determined. The author was not among the 25 men with the best results. Therefore, he did not proceed to the next stage, despite having obtained a higher score than 18 of the 25 women selected.

On 20 August 2014, the author filed a lawsuit for the protection of the political and electoral rights of citizens. He argued that the establishment of separate lists of men and women candidates in the examination had violated his rights to non-discrimination and equality before the law for women and men, as well as the principle of legality and articles 2, 3 and 26 of the Covenant.⁴

4. The author and the State party use the terms “sex” and “gender” interchangeably. The Committee notes that although definitions of “sex” and “gender” vary and evolve to some extent, according to some definitions, the concept of sex refers to a biological construct based on anatomy, physiology, genetics and hormones, while the concept of gender refers to a cultural construct associated with a particular sex in a given society, in addition to gender identity and expression. In this case, the Committee uses the term “gender”. The Committee is not called upon in this case to evaluate the binary nature of the gender categories (male/female) used in the process for selecting the councillors of the local public authorities. However, the Committee notes that the right to non-discrimination applies equally to all persons, irrespective of their gender identity. ↩

On 26 August 2014, the High Chamber of the Electoral Tribunal of the Federal Judiciary ruled on the lawsuit, dismissing the author’s petition.⁵ There was no right to appeal against this ruling.

5. SUP-JDC-2186/2014. The ruling was adopted unanimously by six votes. In its detailed 37-page ruling, the Electoral Tribunal stated that gender-based discrimination has given rise to a transition from a model whereby formal equality is protected to a social model of law that seeks to achieve material equality between women and men. Formal equality must be complemented by material equality with a view to creating equal opportunities for exercising other rights through measures aimed at changing the economic, cultural and social bases of a community. One of the primary purposes of both the guidelines issued by the National Electoral Institute for the appointment of presiding councillors and electoral councillors and the call for candidates was to establish gender balance within local public authorities. Efforts were therefore made to ensure that at least three of the seven appointees were of the same gender, which meant that the remaining four had to be of a different gender. The women competed against each other, and the 25 women with the highest number of correct answers were placed on the corresponding list, while the men competed against each other for a place on the list of male candidates. ↩

On 30 September 2014, the National Electoral Institute appointed the presiding councillor and electoral councillors of the local public authority in the state of Jalisco. Of the seven people appointed, two women had obtained a lower score in the examination than the author.

The author states that the same matter is not being examined by another international body.

The author argues that the gender-based discrimination reflected in the call for candidates issued on 26 June 2014 amounts to a violation by the State party of his rights under articles 2, 3, 5, 14 and 25 (read alone or in conjunction with articles 2 (1), (2) and (3)) and 26 of the Covenant. The author did not enjoy the right to equality before the law, and did not have equal access to public service in the country.⁶ In order to promote affirmative action in the area of gender, the National Electoral Institute established two parallel lists of candidates, disaggregated by gender, to determine the 25 women and 25 men with the highest scores. Owing to this disaggregation, the 18 women whose scores were lower than the author’s managed to pass the examination, while he did not proceed to the next stage of the procedure.

6. The author refers, for example, to the Committee’s general comment No. 25 (1996). See also Bandaranayake v. Sri Lanka (CCPR/C/93/D/1376/2005), para. 7.1; and Inter-American Court of Human Rights, case of López Lone et al v. Honduras, judgment of 5 October 2015 (preliminary objection, merits, reparations and costs), paras. 161, 163, 235 and 236. ↩

The parity quotas established in the call for candidates were neither objective, nor reasonable, nor proportionate to the legitimate aim of reducing or eliminating inequality. Both men and women could respond to the call for candidates on the same terms and there was equality of opportunity. In Mexico, the proportions of men and women who have access to higher education are similar. Therefore, it was neither necessary nor justified to disaggregate the list of applicants by gender in a competition to test knowledge. A more reasonable approach would have been to form a single list of men and women candidates, specifying the results of the examination and the persons who had progressed to the final stage. This would have ensured that a mixed or plural group of recruits was appointed to the authority.

Furthermore, the author did not have access to an effective remedy for the violation of his rights under the Covenant, which constitutes a violation of article 2 (3) of the Covenant. The High Chamber of the Electoral Tribunal of the Federal Judiciary rejected his petition without analysing the particular circumstances of the case.

Lastly, the author alleges a violation of the pro personae principle under article 5 of the Covenant. His rights were interpreted by the authorities in a restrictive sense, promoting, without justification, differentiated treatment on the basis of gender.

In its observations of 22 May 2018, the State party submits that the communication should be declared inadmissible on the ground that it is insufficiently substantiated.⁷ Moreover, no arbitrary or discriminatory decision has been taken that amounted to a denial of justice.

7. The State party does not address the question of the exhaustion of domestic remedies. ↩

The author entered a competition for a public post, which was provided for by law. Although the law provided for distinctions, these were justified, objective and reasonable and did not put the author at any actual disadvantage or subject him to any other type of injustice as the measures concerned were affirmative actions relating to gender.

On 6 June 2014, the General Council of the National Electoral Institute adopted the guidelines governing the appointment of presiding councillors and electoral councillors to local public authorities. These guidelines set out the criteria governing the selection process, stating that the principle of gender equity would be taken into account at each stage and applied to the constitution of the senior management body and the local public authorities. In other words, of the seven male and female electoral councillors, at least three must be of the same gender. According to the guidelines, the selection procedure included the following stages: the registration of candidates, the verification of requirements, an examination, an onsite test, the assessment of curricula vitae, an interview, the formulation of lists of candidates, and the appointments. With regard to the examination, the call for candidates provided for the establishment of two lists: a list of 25 male candidates and another of 25 female candidates, so that the persons on each list would compete to determine the best candidates of each gender.

The author was not admitted to the fourth stage of the procedure, corresponding to the on-site test, because his score in the examination was not among the 25 highest for persons of his gender (men). Both the guidelines and the corresponding call for candidates provided that the selection criterion would respect the principle of gender parity. In the call for candidates, it was stated that the 25 women and 25 men with the highest scores in the examination would progress to the next stage. In fact, the list of male candidates was made up of the 29 men with the best results, as those who tied for twenty-fifth place were included. This criterion was based on the principle of equality established by the highest courts in the State party and by international organizations. The author was aware of the guidelines established in the call for candidates prior to sitting his examination.

The measure taken cannot be considered to constitute a discriminatory act since it was objective and reasonable. The duty to ensure equality before the law results in the provision of differentiated treatment under the law only when there are compelling circumstances that justify it, with the ultimate purpose being to ensure equity between persons. Not all differentiated treatment can be considered to be discriminatory. The measure implemented consisted of promoting affirmative action in order to guarantee the equal representation of women in the public authority in Jalisco.

With regard to article 2 (3) of the Covenant, the author was able to challenge the determination that he had failed to qualify, under the pre-established guidelines, by filing a lawsuit for the protection of the political and electoral rights of citizens. This appeal complied with the standards established by the Committee and was reviewed by an impartial and independent tribunal of the National Electoral Institute.

In his comments of 18 July 2018, the author reiterates his arguments and argues that the establishment of two lists created a situation of discrimination and was based on a misconception, since the opportunities for women and men to join the local public authority in the state of Jalisco were the same. If access to public service is based on merit and equal opportunity, persons aspiring to join the service may not be subjected to discrimination. Furthermore, the principle of subsidiarity was not violated since the author’s aim is to have the Committee determine whether or not his rights have been violated by the State party.

In its observations of 21 September 2018, the State party reiterates that the communication is inadmissible and submits that the author’s claims are unfounded. The great disadvantage that women have historically suffered as a result of discrimination under centuries of male domination has prevented them from enjoying many of the rights recognized in the Covenant and other human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women, which the State party ratified in 1981. In the Convention, the States parties reaffirmed that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields. The States parties therefore pledged to adopt the necessary measures to eliminate this discrimination. This commitment is also clearly recognized in article 3 of the Covenant.

At the national level, the situation of Mexican women makes it essential to design public policies to combat the historical and structural causes that are preventing them from developing, restricting their progress in many different areas and thereby hindering the participation of more than half the Mexican population in development. The General Act on Equality between Women and Men of 2006 provides for the adoption of policies, programmes, projects and compensatory mechanisms as affirmative actions to guarantee equality of opportunity.

Ruling No. SUP-JDC-12624/2011 of the Electoral Tribunal of the Federal Judiciary established the mandatory nature of gender quotas and the incorporation of tickets containing alternate candidates of the same gender, as provided for in the amendments made to the Federal Code of Electoral Institutions and Procedures. In 2013, only 6.9 per cent of seats in local authorities were held by women. In 2011, 38.5 per cent and 26.8 per cent of town councillors and municipal legal officers were women, respectively. Gender parity was far from being achieved in the executive branches of the three levels of government. Women accounted for less than 24 per cent of the total number of persons in senior management positions. In the executive branch of the Federal Government, women occupied only 35.5 per cent of mid-level and senior management positions, mainly holding the lower ranking positions (deputy directors, department heads, liaison officers). Only 14.6 per cent of persons in senior management positions in the federative entities were women. Only 2 of the 11 judges of the Supreme Court were women. In 2012, only 28.6 per cent of the judges of the high courts of justice were women.

With regard to the National Electoral Institute, in September 2012, women occupied 22 per cent of federal councillor posts and 44 per cent of local councillor posts and accounted for 41 per cent of persons in senior management positions. Therefore, it is necessary to continue implementing temporary special measures with a view to achieving substantive equality between men and women in political life, as noted by, inter alia, the Committee on the Elimination of Discrimination against Women in the concluding observations issued to the State party in 2018.⁸

8. CEDAW/C/MEX/CO/9, para. 17 and 18. The State party also provides additional information on the guidelines for the appointment of presiding councillors and electoral councillors of local public authorities, and on the history and development of the competition in question. The Committee notes that, for the 2018 and 2024 electoral processes, the State party reduced the scope of application of the special measures provided for in the guidelines that established positive discrimination in 2012 (in which the appointment of 25 men and 25 women, on the basis of parity, was defined). It was established that there would be 12 men and 12 women in the 2018 electoral process, and 17 men and 17 women in the 2024 electoral process, and that the shortlists would automatically include any participant who, in the selection process, had obtained a higher score than any of the persons chosen as a result of the application of the special rule relating to parity. ↩

The author neither substantiates his claim of a violation of the Covenant nor explains on what grounds such a claim might be based since the State party’s conduct is in full compliance with the Covenant.⁹ On the basis of the above-mentioned information on the procedure for selecting councillors (paras. 4.3–4.5 above), the State party reiterates that, in this case, the distinctions were provided for by law, justified, objective and reasonable and did not put the author at any actual disadvantage or subject him to any other type of injustice. To treat in an equal manner persons or groups whose situations are objectively different constitutes discrimination in effect.¹⁰ Women have been victims of discrimination in all spheres as a result of male domination, which has created the need to adopt special measures to reduce the gender gap and thus guarantee their equal access to human rights. For the reasons given above, the decision to establish two parallel lists of candidates, disaggregated by gender, and guidelines providing that the appointees must include at least three persons of each gender, was taken to address the disadvantages that women have historically suffered in the political and public life of the State, in respect of both their access to office and to decision-making positions.¹¹

9. For example, the State party refers to general comments No. 18 (1989) on non-discrimination (para. 10) and No. 28 (2000) on the equality of rights between men and women (para. 29). ↩
10. Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 12. ↩
11. Committee on the Elimination of Discrimination against Women, general recommendation No. 23 (1997), para. 15 (the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies are essential prerequisites to true equality in political life). See also general recommendation No. 32 (2009) of the Committee on the Elimination of Racial Discrimination, paras. 12, 16, 20 and 33. ↩

It is important to point out that, in order to enter the competition, all male and female candidates had to comply with objective criteria that demonstrated their suitability for the position, which was verified by the Commission for Relations with Local Public Authorities. These requirements are set out in a number of laws and internal regulations.

In his comments of 1 November 2018, the author reiterates his arguments and states that he has never objected to the requirement that the Electoral Council of the state of Jalisco should consist of at least three persons of the same gender. In fact, aiming to ensure that electoral bodies are composed of both men and women is a worthy goal and is legitimate in the light of the Covenant. What is problematic is that the mechanism used to achieve this goal was neither reasonable nor proportionate.

The State party’s argument justifying the measure is fallacious. In senior public positions and in positions for which candidates are not required to undergo an objective stage involving examinations, the State party does not promote the equal participation of women and men. In fact, only 2 of the 11 judges that make up the Supreme Court are women. Only 2 of the 7 councillors of the Federal Judiciary are women. Only 2 of the 7 magistrates of the High Chamber of the Electoral Tribunal of the Federal Judiciary are women. Only 4 of the 11 electoral councillors of the National Electoral Institute are women. Only 3 of the 18 Secretaries of State are women. Only 1 of the 32 governors is a woman (although there will soon be three). In all these public positions, appointments are discretionary, and the State party does not comply with the gender quota that it cites so frequently in the present case.

When the selection of officials has an objective basis, such as an examination, the results must be objective, irrespective of the gender of the participants. In the appointment of judges and magistrates to the federal judiciary, for example, all the candidates take an examination and those who pass become judges or magistrates, irrespective of their gender. In 2014, 81 per cent of federal magistrates and 79 per cent of judges were men. In the present case, the National Electoral Institute should have taken the same approach.

The author responds to the arguments made by the State party to justify the temporary special measures and reiterates his arguments. If access to the civil service is based on merit and equal opportunity, individuals cannot be subjected to any discrimination, including gender-based discrimination.

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

With regard to the claims under article 2, read alone, and article 5 of the Covenant, the Committee recalls its jurisprudence according to which articles 2 and 5 of the Covenant lay down general obligations for States parties and do not give rise, when invoked separately, to claims in a communication under the Optional Protocol.¹² Consequently, the alleged violations of these articles fall outside the Committee’s competence and are inadmissible ratione materiae under article 3 of the Optional Protocol.¹³

12. See, for example, Taylor et al. v. New Zealand (CCPR/C/138/3666/2019), para. 6.3. ↩
13. Ibid. ↩

With regard to the State party’s argument that the communication is manifestly illfounded, the Committee notes the author’s claim under the first sentence of article 14 (1) of the Covenant. The Committee recalls that, in accordance with the aforementioned provision, it is a fundamental duty of the courts to ensure equality between the parties, including the ability to contest all the arguments and evidence adduced by the other party.¹⁴ The Committee notes that the author does not explain the reasons why the proceedings before the High Chamber of the Electoral Tribunal of the Federal Judiciary violated this right. The Committee therefore considers that this claim is insufficiently substantiated for the purposes of admissibility and declares it inadmissible under article 2 of the Optional Protocol.

14. See, for example, Äärelä et al v. Finland (CCPR/C/73/D/779/1997), para 7.4. ↩

The Committee takes note of the author’s allegation relating to articles 3, 25 and 26 of the Covenant that he was subjected to discrimination on the basis of his gender in the competitive examination for the position of councillor in the public authority of Jalisco. According to the author, although he was not included in the list of 29 men who progressed to the next stage of the selection procedure, he obtained a higher gross score than 18 of the 25 women who reached the next stage.

The Committee recalls its jurisprudence according to which article 25 (c) of the Covenant does not entitle every citizen to employment within the public service, but to access on general terms of equality.¹⁵ With regard to article 26 of the Covenant, the Committee recalls its jurisprudence and its general comment No. 18 (1989), to the effect that not every differentiation of treatment of persons in analogous or relevantly similar situations constitutes discrimination, if it is based on reasonable and objective criteria and serves a purpose that is legitimate under the Covenant (para. 13).¹⁶ The Committee also refers to its general comment No. 28 (2000), according to which States parties must ensure that the law guarantees to women the rights contained in article 25 of the Covenant on equal terms with men (para. 29).

15. Kall v. Poland (CCPR/C/60/D/552/1993), para. 13.6. ↩
16. D.P. and E.P. v. Sweden (CCPR/C/139/D/3183/2018), para. 8.10. ↩

The author expressly recognizes the legitimacy of the purpose of ensuring that the seven councillors in the local public authority are appointed on the basis of parity, with at least three men and three women. In this regard, the Committee notes that the requirement to have approximately equal numbers of male and female electoral councillors – and two parallel lists of male and female candidates – formed part of efforts to implement the principle of gender parity (i.e. to ensure proportional representation according to gender, which conforms to the approximate gender distribution of the general population).¹⁷ The Committee notes that the electoral councillors of the local public authorities in Mexico are responsible for preparing, conducting and overseeing elections in each of the country’s federative entities. In this context, gender parity can promote the balance and proportional distribution of power in electoral management, which can serve the objectives of democracy. It does not give preference to the interests of women as a matter of principle. Rather, it seeks to promote good governance through equal gender representation in the administration of electoral processes. Therefore, in the present context, the Committee notes that gender equity, which parity measures are aimed at achieving, is not synonymous with the advancement of women but with justice for people of all gender identities.

17. According to the National Institute of Statistics and Geography, in 2015, 51.4 per cent of the population of Mexico were women and 48.6 per cent were men. See https://www.inegi.org.mx/temas/estructura/. ↩

The author contests the measure implemented to achieve gender parity, i.e., the establishment of two parallel lists of female and male candidates for the examination. In this regard, the Committee notes that the call for candidates for the recruitment procedure stated that the 25 female and 25 male candidates who obtained the highest scores in the examination would proceed to the next stage of the competition. The guidelines specified that the principle of gender equity would be taken into account at each stage of the procedure and that the senior management bodies of local public authorities would include at least three electoral councillors of the same gender. The Committee also notes that the gender parity measures were in compliance with the General Act on Equality between Women and Men of 2006, and ruling No. SUP-JDC-12624/2011 of the Electoral Tribunal of the Federal Judiciary, which established that such gender quotas were mandatory. Therefore, the Committee considers that the application of these criteria to the competition was consistent with the relevant standards.

The Committee notes that the author does not disagree with the higher goal being pursued. The author claims that the parity quotas established in the call for candidates represented differentiated treatment that was not objective, reasonable or proportional. The Committee notes that the call for candidates specified that the same number of male and female candidates (25) would pass the examination and proceed to the next stage of the procedure. In fact, in the present case, more men (29) than women (25) were selected to proceed to the on-site test owing to the aforementioned tie. Furthermore, the same number of posts were set aside for men and women within the Electoral Council. Therefore, the Committee’s view is that the author cannot be considered to have been treated differently on the basis of gender. Rather, the same rule was established for men and women.

The author argues that, for the purposes of an examination, there is no situation of inequality between men and women since similar proportions of men and women go to university. Therefore, according to the author, the men’s and women’s scores should have been merged into a single category to determine a common cut-off score (see para. 7.1 above). Even if it were accepted that the author was subjected to differentiated treatment on the basis of his gender, the Committee refers to its statements in paragraph 8.5 above and recalls that its general comment No. 18 (1989) states that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant and that such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. As long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant (para. 10).

In the present case, the Committee takes note of the important information provided by the State party regarding the causal link between several centuries of male domination and the discrimination that women in Mexico have faced in connection with public participation and their access to public decision-making positions. The Committee also notes that gender parity in access to university education does not necessarily translate into parity in employment, including access to public service positions with decision-making powers. In fact, both the author and the State party point out that, during the period in question, women were underrepresented in several sectors of the civil service, particularly in mid-level and senior positions (see paras. 6.4, 6.5, 7.2 and 7.3 above). In the competition under discussion, far fewer women (76) than men (134) took the examination and, in 2012, women had not achieved parity in respect of the position of councillor in the National Electoral Institute. The Committee notes that several other factors besides access to education can affect the representation of a particular group in public decision-making positions (for example, social, economic and political inequalities; power dynamics that exclude the group from the networks that dominate the spheres that influence decision-making; the assignment of stereotyped roles to the group; and inequalities in the domestic sphere that restrict the group’s availability for such positions). Therefore, the Committee considers that the author’s argument about levels of education is not sufficient to substantiate the claim that the establishment of two parallel, gender-disaggregated lists of candidates, based on the same criteria, constituted differentiated treatment that was not objective, reasonable or proportionate to the legitimate aim of removing obstacles to equal access to the Electoral Council.

With regard to the author’s argument that the State party does not promote gender parity in other high-level discretionary public positions, the Committee notes that the removal of structural barriers in order to balance the distribution of power in public functions generally takes place gradually and that, since the author’s submission, the State party has made progress towards achieving gender parity in many of the functions mentioned in paragraph 7.2 above.¹⁸ In any case, the Committee does not consider that the lack of gender parity in one area of government necessarily legitimizes the lack of gender parity in another area.

18. In August 2024, for example, 5 of the 11 judges of the Supreme Court were women, including the President; 4 of the 7 magistrates in the Federal Judiciary Council were women; and 8 of the 19 Secretaries of State were women. ↩

With regard to the right to an effective remedy, the Committee also notes that the High Chamber of the Electoral Tribunal of the Federal Judiciary issued a detailed and reasoned decision on the author’s petition to contest the selection procedure.

In the light of the above and the material before it, the Committee considers that the author has not sufficiently substantiated his claims that, on the basis of his gender, he was subjected to discrimination or a prohibited form of inequality in connection with access to public service or that his right to an effective remedy was violated. Consequently, the Committee declares that his claims under articles 3, 25 and 26 (read alone or in conjunction with article 2 (1), (2) and (3)) of the Covenant are inadmissible under article 2 of the Optional Protocol.

In the light of these conclusions, the Committee does not deem it necessary to examine any other grounds for admissibility.

The Committee therefore decides: (a) That the communication is inadmissible under articles 2 and 3 of the Optional Protocol;