Statues are falling: The case of HM Stanley – an erasure of history or a necessary revision?

by Sinéad Coakley

All around the world, we are seeing the removal or modification of tangible cultural heritage, either by forceful means or by government action. This global debate was triggered by the abrupt and harrowing murder of George Floyd in the USA at the hands of a man employed by the state to protect him. It provoked mass protests around the world highlighting the much overdue need to adequately address systemic racial inequality, institutional racism and controversial heritage.

The statues at the centre of this debate across Europe are predominantly statues of men involved in Europe’s much-celebrated imperial exploits. Figures such as Cecil Rhodes, Robert Milligan, and Winston Churchill have come under intense scrutiny across the UK following the dramatic removal of Edward Colston from a plinth in Bristol. We, as a society, now find ourselves at a time of reckoning as we question the statuary on our streets. We need to consider the role that cultural heritage has within our communities and whether removing these statues is a removal of history.

Cultural heritage is an expression of the ways of life of a community, which is passed on from generation to generation. Tangible heritage such as statues and monuments denotes the physical representation of the values, beliefs and traditions of that community. The Committee on Economic, Social and Cultural Rights have reiterated that cultural rights are essential for the maintenance of human dignity and positive social interaction between individuals and communities.

The United Nations Educational, Scientific, and Cultural Organisation (UNESCO) further affirm that cultural heritage should be recognised and acknowledged for the benefit of present and future generations. Thus, ideally the statues in the public realm should reflect, and be a source of, communal bonds in which all members of the community (local communities and the wider state) can identify with and protect. So what should we do with controversial heritage – cultural heritage that does not promote human dignity and social cohesion?

Two communities having this dialogue at the moment are Denbigh and St Asaph in North Wales. Both have had to consider the fate of two statues commemorating a lesser-known historical figure – ‘Denbigh’s Son’ – Henry Morton Stanley. Stanley has come under scrutiny due to his involvement in colonialism as he explored central Africa and worked as an agent of King Leopold II (whose own statue was removed in Antwerp for his genocidal policies in Africa). Both statues are surprisingly recent only having been created in 2011 in the hope to attract tourism.

At the time there was a letter of protest against the erection of the statue arguing that his expeditions have shaped the racial inequality still rife in todays society. Despite this, the statues were still commissioned and displayed. Local artist, Wanda Zyborska, holds an annual protest of the Denbigh statue by re-veiling it in black rubber; the rubber is particularly symbolic given the exploitation of rubber in the Congo. During the recent Black Lives Matter protests, protesters turned their back to Stanley and “took a knee” (a symbolic protest now synonymous to the BLM movement first initiated by Colin Kaepernick in 2016).

On 24^th June both councils decided the fate of these statues. Despite persistent pressure from the community to remove them both councils effectively voted to keep the statues in place (for now). St Asaph Council, whose statue depicting Stanley is an obelisk portraying his life, opted to modify the obelisk with a plaque depicting a more neutral explanation of history.

A working party will be set up to draft the wording that would better reflect today’s climate. This is something that Bristol Council tried in 2018 to address Colston’s role in the slave trade. However, this caused further controversy as it was felt the plaque laundered Colston’s enslavement of black people. Denbigh Council, on the other hand, voted (6-5) that the statue depicting Stanley standing with an outstretched hand would not be removed, but would open up the debate to a public consultation. This consultation will take place once lockdown restrictions are lifted in Wales. Both decisions here have the opportunity to promote much needed dialogue. St Asaph Council has the power to enable the community to decide collectively what is an appropriate and accurate explanation of history. Denbigh Council also has the opportunity to start dialogue and reassess whether the statue has a place within their community.

Other communities have already made attempts to address these questions. The University of Liverpool has agreed to rename a building named after former Prime Minister William Gladstone, for his links to the slave trade. The statue of slave owner Robert Milligan was removed by the Canal and River Trust in London as a way of recognising the wishes of the community. Throughout America, statues of Confederates have been removed. Likewise, Alaskan and Australian communities are deciding the fate of statues of Captain James Cook for his links to colonialism. In London, a commission will be set up to review and improve diversity across London’s public realm to ensure that the landmarks suitably reflect the capital’s achievements and diversity.

The removal of these statues has been met with severe opposition in certain quarters. Prime Minister, Boris Johnson, has argued that the removal of any further statue is the erasure of our history. This is the predominant argument that underpins a lot of the discussion surrounding these statues and it is something that needs addressing.

Firstly, arguing that the removal of these statues is an erasure of our history implies a role that statues do not necessarily achieve. As David Olusoga correctly states, statues are not particularly good at telling us our history. History is complicated. Pure objectivity does not exist in accounts of the past and there are many interpretations of it. Resisting the removal of these statues is resisting the realities of the new (more objective) understanding of the past. By removing the statues we are no longer giving legitimacy to a history that they infer. British exceptionalism has allowed us to portray our history in a whitewashed manner – ignorant to the mass oppression of minority groups.

Secondly, in some instances the intentional destruction of cultural heritage can indeed be to erase history. Throughout history, cultural heritage has been destroyed in this way because it is an identity marker of a group of people. It is an assault upon a peoples’ identity in an aim to demoralise, disenfranchise and humiliate them, as seen during the breakup of the former Yugoslavia. In some cases, the destruction of heritage is part of a broader plan of genocide – to erase the very existence of a group of people and remove them from the annals of history.

However, this is not what is happening here. This is not an assault upon our cultural heritage but a call to acknowledge present day racism and structural inequality by reconsidering the past. There have been calls for the removal of these statues for years. They are not being removed with the intent to erase history or to culturally cleanse a people. Instead, people within the community are demonstrating that there is no space for these symbols of intolerance and hate within the fabric of their community and they reject them. Regardless of the reasoning behind the creation of these controversial statues, we must focus on the message they send in the present day.

It is a message – seen by many of – endorsing colonial iconography and white supremacy. It validates a history of intolerance and grave violations of human rights. By removing these statues of the likes of Colston and Stanley local communities are not removing them as historical figures, nor are they removing them from the historical record – they are simply removing the idea that they are worthy of celebration within the fabric of our culture.

The on-going global pandemic has gifted us with the ability to stop and evaluate the way in which we live our lives at an individual level but also as a community. We need to take this gift and ask ourselves these difficult questions in an open, inclusive dialogue. There is no one-size-fits-all approach when it comes to how communities deal with their past. This is apparent in the different approaches taken so far across the UK (and the wider world). Whilst the blanket removal of some statues is welcome, it does stifle the opportunity for much needed dialogue.

I believe dialogue is needed in all communities. It will enable communities to collectively understand their history and cultural heritage exposing why these particular statues are symbols of intolerance and oppression. Cultural heritage is supposed to outlive many human generations and as a result, in considering the public setting in which these statues are placed, communities should be focusing on what message they want, as a community, to send to future generations. We need to consider why we celebrate the figures that we do and whether they merit our reverence – a dialogue Denbigh and St Asaph have been afforded at the moment.

 

ABOUT THE AUTHOR

Sinéad is currently a PhD candidate at The University of Liverpool. Her research focuses on transitional justice responses to the intentional destruction of cultural heritage in post-conflict states. Her research interests include: minority rights, cultural rights, cultural heritage, transitional justice and international humanitarian law.

India’s National Health Protection Scheme: Seen through a rights-based and capabilities approach

by Rohit Sharma

 

India’s ‘Ayushman Bharat National Health Protection Scheme’ (The Scheme) is a big step forward in recognising the right to health and implementing a rights-based approach to ensuring adequate healthcare, one that maximizes the capabilities of individuals; but it is not without its flaws.

The ‘right to health’ is enshrined in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and refers to the right to physical and mental health to the highest attainable standard.  Additionally, Article 25 of the Universal Declaration on Human Rights,  mentions that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care.’

The Indian government, while aiming for the fulfillment of similar rights, introduced one of the biggest healthcare schemes in the world.  The Scheme was launched in 2018 and aimed to insure 500 million of India’s most impoverished families with a cover of Rs 500,000 rupees to treat serious ailments.  However, despite the big promises and massive budget allocation, the Scheme suffers from multiple issues such as doctor apathy, lack of adequate infrastructure and financial issues.  While addressing such issues, I will also analyse the healthcare scheme through the lens of a ‘capabilities and rights-based’ approach.

Article 21 of the Indian Constitution contains the right to life and personal liberty and deals with the concept of the well-being of an individual.  In addition, Article 47, one of the Directive Principles of State Policy, mentions the duty of the state to improve public health.

For the past few years, India’s economic policy has not recognised the importance of the health sector.  For instance, in 2018 India spent 1.02% of its GDP in health expenditure against 17.8% by the United States and 11.3% by Canada.  Additionally, in terms of per capita health expenditure, India’s expenditure falls below countries like Iraq, Iran, Kenya, and Tunisia, who are still recovering from civil wars in the past few years.  Since the expenditure involved in the well-being of an individual can be quite high, it is ideal for individuals to cover themselves through health insurance schemes.  However, as per the government’s National Sample Survey Office (NSSO) report for the year 2014, merely 18.1% and 14.1% of the urban and rural population respectively were covered under any of the government health insurance schemes.  This highlights the critical state of health conditions in India.

The reason active steps were required by the Indian government to create such a significant scheme stems from the fact that the right to health for all was often considered an impossible standard to achieve.  However, The Scheme plans to address implementation issues concerning the right to health by providing health insurance to the poor and vulnerable, irrespective of their class or caste.  Instead, households must qualify under the deprivation criteria of Socio-Economic Caste Census, 2011 (hereafter SECC), which takes socioeconomic status into account for rural and urban households and allows ranking of households based on predefined parameters.

Besides seeing the healthcare scheme from a rights-based approach, it is pertinent to notice that the right to health, if maintained, will maximize people’s capabilities, that is, their ability to do and be their best.

 

A capabilities approach

According to Aristotle, ‘human flourishing is the end of all political activity.’  This idea thus leads to the concept of the ‘capability of an individual.’    Martha Nussbaum, a proponent of the capability approach, extended the Aristotelian idea, stating that “the capability to function well is a major factor in determining the active role in political activity.”

Some scholars, such as Jennifer Prah Ruger distinguish between central and non-central health capabilities, wherein central health capabilities act as a prerequisite for developing other kinds of capabilities. The assessment of central health capabilities is achieved through “life expectancy, infant and child mortality, and prevalence and incidence rates of disease such as Tuberculosis, dysfunction, and physical and mental functioning and disability.” She further asserts that the former should be prioritized as they lead to the development of other capabilities and to evaluate health policy in a better manner.

Three core capabilities included on Nussbaum’s list of the ten most central capabilities are a normal life span, bodily health, and bodily integrity. She believes that to maintain people’s health and well-being to the maximum level, the state should intervene in the private sphere and provide opportunities that expand individuals’ capabilities.  The Scheme aims to attain positive health for the masses through the support of doctors and wellness centers to improve the situation of vulnerable sections of society.

 

A rights-based approach

According to prominent American philosopher Henry Shue who is accredited with the rights-based approach, one of the fundamental rights needed to enjoy all other rights is the right of subsistence.  He mentions that “No one can fully if at all, enjoy any right that is supposedly protected by society if he or she lacks the essentials for a reasonably healthy and active life.”  For instance, The Scheme is trying to encourage an awareness of the interdependence between food security and healthcare, as most malnourished Indians also suffer from a lack of positive health.  The right to subsistence must also include minimal preventive health care.

Shue also argues that poverty is a consequence of either state inaction or a direct consequence of government policy. Therefore, there should be an explicit normative framework with clearly spelled out legal obligations by which the state makes the right to health an entitlement.  Any violation of such entitlement will then mean the non-realization of human rights.

 

Issues with the Scheme

States have three types of obligations regarding human rights: to respect, protect, and fulfill the rights of individuals.  India is still violating individuals’ rights because the Scheme does not cover a substantial number of stakeholders due to its reliance on the flawed SECC.

SECC publicly exposes the data of individuals, which is a significant point of concern for stakeholders.  Additionally, under the sex column of SECC, there are only two columns of male and female, despite the Supreme Court mandate in recognizing transgender as third gender.  Another such flaw of SECC concerns its methodology. The Census automatically excludes about 40 percent of rural households and automatically includes only 0.89 percent of rural households , despite the aim of  The Scheme to offer healthcare to India’s most marginalized groups.

Another problematic issue is that despite being mandated under The Scheme to admit beneficiaries and offer them quality services, private hospitals are failing their duty.  The hospitals believe that the low-cost treatments and package rates fixed by the government will cause them heavy losses, and doctors are not inclined to give the best quality treatment and surgery to such deprived patients.  Consequently, the state is not able to prevent and protect the beneficiaries from getting stigmatized and ensuring their right to health.  It is further observed that the implementation of The Scheme comes at the cost of curtailing the budget for non-communicable diseases, immunization programs, trauma, and child health, and reproductive health.

Finally, the current hospital infrastructure lacks a sufficient number of beds to accommodate patients who benefit from the Scheme.  The figures reveal that 1.5 million beds in hospitals are inadequate to support the 500 million individuals in need.  The current demands under the Scheme require the addition of around 200 thousand beds, which is a big challenge for both the state and hospitals.

These factors aggregately suggest that The Scheme was launched without the proper administrative, budgetary, and promotional measures to fully realize the right to health for all.  This, in effect, means that despite the significant step taken to acknowledge the right to health, the state failed to respect, protect, and fulfill it.

Shue’s focus on a rights-based approach that makes a state accountable for non-enjoyment of  any human right and Nussbaum’s focus on basic capabilities  converge at a common point – freedom to be ‘human.’  The Scheme had an opportunity to provide the freedom required for the physical and mental well-being of Indians and maintain both the capability as well as the rights-based approach. However, the aforementioned problems coupled with an inadequate infrastructural support suggests that The Scheme has the potential to become another failed healthcare scheme, leaving the right to health for all as just a dream.

 

ABOUT THE AUTHOR

Rohit Sharma is a 2020 National University of Juridical Sciences Graduate.   In the past, he has served as Editor of the Journal of Indian Law and Society (JILS).  Through his leadership of the JILS Blog, it was ranked one of the top 10 ranked legal blogs of India.  He has also worked for NUJS Legal Aid Society and Increasing Diversity by Increasing Access(IDIA) and is now set to become a corporate lawyer at Indian law firm, Cyril Amarchand Mangaldas.  He can be reached at rohitsharma@nujs.edu

International Human Rights Weekly News Roundup

 

This week’s stories in focus:

A ‘weapon of repression’: China’s national security law:

by Bethany Webb-Strong

On the 30^th June, China announced a new national security law which grants Beijing sweeping powers over semi-autonomous Hong Kong, representing a colossal threat to Hong Kong’s sovereignty.  The security law details 66 articles which criminalise secession, subversion, terrorism and collusion with foreign forces to endanger national security. Suspected individuals, including non-residents accused of violating the law on Hong Kong territory, may face penalties as severe as life imprisonment and complex cases can be sent to mainland China for trial.  The law grants increased police powers, allowing for searches of homes and electronic devices without a warrant and restriction upon residents travelling overseas.

The national authorities have explicitly passed the legislation in reaction to escalating protests and violence in the city since last year;  Chief Executive, Carrie Lam declared ‘these acts have crossed the ‘one country’ red line and called for resolute action’.  Although Lam asserts the new law will not undermine Hong Kong’s autonomy, the legislation will take precedence over Hong Kong law in cases of disparity. Critics have denounced the law as ‘the end of Hong Kong’ and Joshua Rosenzweig, the head of Amnesty International’s China Team, has proclaimed that the law ‘represents the greatest threat to human rights in the city’s recent history’.

It is predicted the measures will be used by China to quash dissenters, threatening the rule of law and fundamental freedoms including the right to freedom of expression. High Commissioner Michelle Bachelet has reiterated that implementation must comply with China’s human rights obligations and cannot criminalise ‘conduct and expression that is protected under international human rights law’.  Amnesty International have highlighted the speed with which the new law was passed, suggesting this is an ‘ominous signal’ that the security law may be used against pro-democracy candidates in the upcoming Hong Kong elections in September.

More than 370 individuals have already been arrested since protests against the new law began on the 1^st July, the anniversary of Hong Kong’s return from British governance to Chinese role.  Many journalists and lawyers in Hong Kong are concerned over whether the broad provisions will affect their work and stifle the reporting of pro-democracy protests as the city grapples with the new measures. Mere hours after the legislation was enacted, the pro-democracy party led by Joshua Wong, Demosisto, disbanded.  Tik Tok is the first company to declare it’s exit from Hong Kong and is amongst several other social media and technology firms who have expressed disquiet about the impact of legislation upon their operations.  Facebook, Twitter and Google have suspended the processing of Hong Kong government requests for user data until they can assess the full implications of the new legislation.

The new security law has triggered debates in the UN Human Rights Council, with Cuba representing 53 states who have announced their support of the draconian measures.  The UK led a statement in opposition to the new legislation, backed by 26 other states. Boris Johnson has criticised the law for breaching the Sino-British joint declaration, promising in response that the UK will provide Hong Kong residents with British national status with a route to citizenship.  New UK human rights sanctions legislation is due to be published in the coming weeks which will allow for sanctions to be imposed against individual perpetrators of human rights violations.  However, it is unclear whether Chinese officials will be amongst those named on publication.  Although not party to the Human Rights Council, the US has also stood publicly in opposition against the new law; the US secretary of state, Mike Pompeo announced the US would ‘not stand idly by while China swallows Hong Kong into its authoritarian maw’.  With all eyes fixed on Hong Kong this week, the new national security law has undoubtedly polarised the international community.

 

 

UK announces sanctions under new human rights regime:

by Lauren Ng

On July 5^th, the Secretary of State, Dominic Raab, announced that the UK will be imposing new human rights sanctions against individuals accused of the “most notorious human rights abuses” in recent years:
“Today this government and this house sends a very clear message on behalf of the British people that those with blood on their hands, the thugs of despots, the henchman of dictators will not be free to waltz into this country.”

The measures will be effective immediately and will affect 49 individuals and organisations from Saudi Arabia, Russia, Myanmar and North Korea. This is the first time the UK has imposed human rights sanctions on human rights violations and abuses, independent of the UN and EU. Notable implicated cases include the death of Russian lawyer Sergei Magnitsky in 2009 and the murder of Jamal Khashoggi in 2018 by Saudi Arabian officials. The sanctions will comprise of asset freezes and travel bans for those named and penalised.

While the sanctions have been largely favoured by MPs, concerns were raised with regards to the absence of Chinese targets on the list. Tom Tugendhat, the Conservative chair of the Foreign Affairs Select Committee, noted that no Chinese officials involved in the repression of Uighur Muslims were included. In addition, a growing number of MPs have since called for the Hong Kong chief executive, Carrie Lam, to be incriminated as well for her support of the new security laws in Hong Kong enforced by Beijing.

It has also been recognised that the sanctions will inevitably cause further tension in the geopolitical relationship between the UK and Russia.  A day after Raab’s announcement, the Russian Embassy retaliated, stating that Moscow reserves every “right to reciprocate” and will likewise be imposing sanctions against the UK.

With the first measures for the newfound global British human rights regime in place, only time will tell as to how the new measures will affect the wider diplomatic relationships between countries.

 

Other stories from around the world

 

International

• Women Face Rising Risk of Violence During Covid-19 (Human Rights Watch)

 

America

• Report Exposes Impact of Privatizing US Criminal System (Human Rights Watch)
• Donald Trump’s Attack on the ICC Shows His Contempt for the Global Rule of Law (Human Rights Watch)

 

Asia

• Myanmar: Court Martial Latest Accountability Sham (Human Rights Watch)
• UN rights office expresses alarm at Hong Kong arrests under new security law (UN News)
• Philippine court asked to annul Duterte-backed anti-terror law (Al Jazeera)

 

Latin America

• A new deal could ease Venezuela’s humanitarian crisis. The international community must get behind it (Human Rights Watch)

 

Middle East

• Fresh evidence of war crimes committed by all sides in Syrian conflict, probe finds (UN News)

 

Africa

• Tunisia: Two-Year Sentence for Homosexuality (Human Rights Watch)
• Youth activist speaks up for environmental protection at Human Rights Council(UN News)

 

Europe

• Britain to resume sale of arms to Saudi Arabia despite Yemen fears (The Guardian)
• Domestic Abuse bill: MPs back ban on ‘chilling rough sex defence’ (BBC)
• Grenfell Tower inquiry: Fire ‘inextricably linked with race’ (BBC)
• Russian space official Safronov arrested for treason (BBC)
• Turkey jails Amnesty activists in ‘terrorism’ case (BBC)
• High court hears human rights legal challenge to England’s lockdown restrictions (Guardian)

 

 

Black Lives Matter Protests: How to spot fake news

by Beth Jackson

 

Social media platforms such as Twitter and Facebook have become essential to promoting human rights in the digital age.  Movements such as Black Lives Matter have successfully used social media to communicate, organise and share crucial information with the world. A significant amount of footage has been shared over social media in the past few weeks, helping to draw attention to the issues and to generate support for the Black Lives Matter movement, but not all of it is what it seems.

Widespread misinformation, inaccurate posts and misleading videos have gone viral. For example, a doctored photo of the White House with all its lights off was shared all over Twitter. The photo, also shared by Hilary Clinton, was found to have been taken in 2015. Photos of a teenager’s dog bite injuries were used in fake Facebook posts claiming Black Lives Matter protesters had attacked people with machetes, and videos, supposedly showing police officers in the US looting, thrived online before being debunked.

Freedom of the press – as enshrined within Article 19 of the Universal Declaration of Human Rights (UDHR) as the right to “seek, receive and impart information” – is crucial in order for journalists and human rights defenders to hold governments to account. Fake news causes confusion, distracts from important issues and impacts the democratic role of a free press. It makes it more difficult to trust information and makes people hesitant to share content which genuinely needs attention.

It’s important to keep a critical mindset when sharing posts online and always question the authenticity of what you are tempted to repost. So what can you do?

 

Here are some ways you can check information you find online:

 

Check the original source:

It’s easier than ever to share someone else’s content on social media but it is important to follow the chain back to the original tweet.

Example: This video was retweeted with a caption that implied the incident had occurred after George Floyd’s death on 25^th May. It had been liked by over 11,000 people and retweeted over 6,000 times. But when clicking on the original account it was shared from, the author of the tweet, who is also the person in the video, admits it was, in fact, from January.  

 

Check when it was first posted:

If you can’t find the original source through social media, a quick and easy way to check when the content was first posted is to do a reverse image search. You can go to images.google.com or TinyEye and upload a photo or video still using the camera icon and it will show you where this photo has been uploaded before.

Example: These photos were shared widely on social media showing police officers injured at Black Lives Matter protests in London. The images were also shared by the Police Firearms Association account with the caption “all in a day’s work”. However, a quick reverse image check shows that these photos were not all from the recent black lives matter protests. In fact, three of the six were from previous UK protests dating back to 2016. A reverse image search on this photo shows it was originally used in a 2016 article by the Mirror about violence against police at a David Cameron protest.

 

Check the story:

Have news outlets shared the content or posted about the event?

Example: Videos from protests that go viral are usually picked up by news outlets who should verify them before reporting on them. However, this alone does not prove a post is ‘real’. For example, Fox News shared doctored images of the recent protests. Cross-check stories with reputable news sources before sharing.

 

Check the replies:

On many occasions people are quick to point out ‘fake’ videos in comments.  Although comments alone don’t prove if a video is ‘fake’ – and claiming that real videos are fake can be a deliberate tactic – they can be helpful in giving a starting point to conducting your own research.

        

Example: Numerous videos of firefighters setting themselves on fire to “fight police officers” in France were posted recently, giving the impression they were part of recent protests.  In the comments of one video on TikTok, it was pointed out that the original image was from January.  A quick search shows that this is true and the photo was from a protest over working conditions and pay – totally unrelated to the recent Black Lives Matter protests.

 

Check the background:

Many videos and photos have been posted that were actually from entirely different countries than quoted in the captions.  Keep a critical mindset and look out for clues in the background of the video.  Ask yourself questions. Are signs on buildings in the language you would expect?  What’s the weather like and does it correlate to the time of season or time of day? Does it look recent? What uniforms are people wearing?  In light of the current pandemic, are people wearing masks?

 

Check the location:

Geolocation can be a really useful tool when verifying posts from social media.  It means identifying where that video was filmed or the photo was taken using tools such as Google Earth.  Geolocation can also be helpful in building a picture of what has happened by searching for local news articles and other videos from the same location.

Example: There were numerous posts and stories that both police and other groups were planting bricks to escalate violence in the protests. The White House account tweeted (now deleted) that ‘Antifa and professional anarchists’ were staging bricks to instigate violence. In one hour, the video accompanying the tweet had 1.3 million views. However, BBC Reality Check geolocated the video and found pictures from 24^th May with the same pile of bricks in the same place.

 

In conclusion:

There isn’t one sure-fire way to spot fake news but by evaluating the evidence in front of you and asking questions before sharing, you can prevent yourself from contributing further to misinformation.

For more information on the techniques discussed in this post, including geolocation and reverse image search, you can take a look at the Human Rights Centre Clinic’s Introductory Guide to Open Source Intelligence and Digital Verification, and visit Amnesty’s Crisis Evidence Lab for up-to-date information on open source investigations.

 

ABOUT THE AUTHOR

Beth Jackson is a postgraduate student at the University of Essex where she is pursuing an MA in Theory and Practice of Human Rights.  She holds a BA (Hons) in Multimedia Journalism and is currently a part of the Digital Verification Unit at the Essex Human Rights Centre Clinic.

 

 

 

 

 

 

 

 

 

 

 

 

 

International Human Rights Weekly News Roundup

This week’s stories in focus:

 

China’s National Security Law comes into effect in Hong Kong

By Pauline Canham

Hundreds were arrested in Hong Kong on 1st July as thousands took to the streets to protest against China’s new security law.   The National Security Law, which came into effect at 11pm on 30th June, gives China sweeping powers over semi-autonomous Hong Kong.  Those suspected of being ‘core members’ of groups deemed to be colluding with foreign forces to endanger national security could face penalties ranging between 10 years to life in prison.   British Prime Minister, Boris Johnson, accused China of breaking it’s treaty with the UK, saying the new law constitutes a “clear violation” of the Sino-British Joint Declaration, signed in 1984.   Johnson vowed to introduce a five-year visa for Hong Kong citizens with British National (overseas) status, offering as many as 2.9 million eligible residents a potential pathway to British citizenship.

 

Pandemic Politics and Indigenous Extermination: A Spotlight on Brazil’s Response to COVID-19

by Alana Meier

Bolsonaro’s Botched Pandemic Response

With its worst week of COVID-19 numbers, Brazil currently has the world’s second-highest total number of cases and deaths, at over 1.3 million and 58,000 respectively. In response, this week “Stop Bolsonaro” protests took place online and in city streets across Brazil and in over 20 countries, with people demanding the leader resign.

President Jair Bolsonaro has faced great criticism for his cavalier (mis)handling of the pandemic. He has downplayed the virus as ‘a little flu’ and media trick, rejected lockdown guidelines, and threatened to pull Brazil out of the World Health Organization branding it a ‘partisan and political organisation’.

In early June Brazil’s government was accused of totalitarianism and censorship after abruptly removing its cumulative coronavirus numbers from the Health Ministry’s website, claiming city officials were inflating figures to secure more federal funding though offering no evidence. The data was soon restored following a Supreme Court ruling, but under-testing remains a problem in the country of 212 million people.

The crisis has become so intense that some of the country’s military figures are warning of instability and threatening a potential take over that could dismantle Latin America’s largest democracy. Political leaders and analysts believe a military intervention is unlikely, yet amid other ongoing investigations into Bolsonaro and his family concerning disinformation and defamation campaigns and allegations of corruption, the possibility is still there.

 

Threat Greatest for Vulnerable Indigenous Communities

However, it is the Indigenous peoples of Brazil who face the most immediate risk. Alongside the loss of human lives, fears are raised that as chiefs, elders, and traditional healers are killed the pandemic will also irreparably damage tribal knowledge, history, culture, and medicine.

Rights groups report that among Indigenous people the coronavirus death toll rose from 28 to nearly 200 people in the past month suggesting a mortality rate of 12.6 percent, nearly double the national rate of 6.4 percent. Dr Sofia Mendonça, a researcher at the Federal University of São Paulo, says “There is an incredible risk of the virus spreading across the native communities and wiping them out.”

Many communities live in areas with limited access to healthcare and lack the means needed to reduce the risk of contagion. Brazil’s Congress has passed an emergency plan to provide medical equipment, field, hospitals, potable water, and food supplies in order to allow tribes to isolate themselves. However, the transfer of supplies and medical personnel has exposed vulnerable villages to the virus.

Respiratory illnesses are already the main cause of death among these indigenous communities who have had limited to no contact with the external world and thus have built little immunity to modern diseases. This is especially true for the 107 known indigenous groups already living in voluntary isolation in the Amazon such as the Arara people of the Cachoeria Seca territory who have been revealed as the tribe with the highest known rate of COVID-19 infection in the Amazon of at least 46%. Having only been contacted in 1987, the reserve is one of the most invaded, with hundreds of loggers and land grabbers operating illegally within in borders.

Mendonça explained that some communities are taking matter into their own hands and plan to divide themselves into smaller groups and seek refuge deep in the forest, as they did to avoid extinction during past epidemics.

 

Twin Threats – COVID-19 and Land Seizures

Brazil’s health crisis is also closely linked to its ongoing environmental crisis. Celebrated chief Raoni Metuktire has proclaimed that Bolsonaro is ‘taking advantage’ of coronavirus as an opportunity to eliminate indigenous people.

The president, who is seen by many Indigenous peoples as an enemy of their cause, has made it clear he wants to open the rainforest to business, having encouraged land invasions of indigenous territories. Rights group Survival International says that while already emboldened by lax enforcement, the chaos of the pandemic is creating an opportunity for illegal miners and loggers to further encroach on tribal land.

Rainforest deforestation rates have soared –  with an increase of 80.62% in the first trimester of 2020 compared to last year. Even before the breakout of COVID-19, scientists warned that forest loss makes pandemics more likely and experts predict additional devastation for Indigenous communities will occur if the coronavirus pandemic overlaps with forest fire season.

Several Yanomami and Ye’kwana associations launched the “#MinersOutCovidOut” campaign calling on the government to expel miners from their territory which is the largest indigenous territory in Brazil. Yanonami leader and shaman, Davi Kopenawa, warned the UN that uncontacted groups ‘could soon be extermination’ if the Brazilian authorities do not immediately act to remove those working illegally on tribal lands.

 

China’s Demographic campaign of genocide on Uighurs

By Julia Kedziorek

A report, released on 29 June, by a German Professor working with Washington non-profit organisation, Victims of Communism Memorial Foundation, has prompted calls for an independent UN investigation in human rights abuses towards Uighur people living in Xinjiang province.  The report, by Adrian Zenz, shows that the Chinese government has taken its draconian anti-separatist policies to a new level.  The birth rate of mostly Uighur regions, Hotan and Kashgar plunged by more than 60 per cent between 2015 and 2018.

The report outlines how the Government has subjected women to pregnancy checks, forced intrauterine devices, abortion or sterilisation.  Documents issued by the local government suggest that birth control violations are punishable by extrajudicial internment in training camps. The vast majority of people in detention camps have been sent there for having three or more children and inability to pay fines.  People have become terrified to have children as they fear internment. One Former detainee admitted she was injected with pregnancy prevention shots until she stopped having her period and was kicked in the lower stomach during interrogations. Now, she cannot have children and suffers from chronic pain and bleeding from her womb.

The Interparliamentary Alliance on China (IPAC), an international cross-party group which includes Baroness Helena Kennedy QC, US Senator Marco Rubio and UK MP Iain Duncan Smith added to the voices calling for an “impartial, independent investigation.”   Darren Byler, an expert on Uighurs at the University of Colorado said that even if the intention might not be to eliminate the Uighur population, the goal is to make them easier to assimilate.  Joanne Smith Finley of Newcastle University went further “It’s genocide, full stop.”

 

Other stories making the headlines around the world

Americas

• Bring Home ISIS Suspects and Relatives from Syria (Human Rights Watch)
• The Danger of America’s Coronavirus Immigration Bans (The Atlantic)

 

Europe

• UK needs ‘biggest-ever peacetime job creation plan’ to stop mass unemployment (The Guardian)
•  France Should Speed Efforts on Workplace Violence (Human Rights Watch)
• Campaign of first openly gay presidential elections candidate shines light on EU’s ‘worst country to be LGBT+’ (The Independent)
• Belarus: Full-scale attack on human rights ahead of presidential election (Amnesty International)

 

Middle East

• Iran issues arrest warrant for Trump, asks Interpol to help (Al Jazeera)
• Black Lives Matter movement forces Middle East to reflect on its own racism problem (The Independent)

 

Asia

• Supporting Nepal’s migrants, as overseas work dries up (UN NEWS)
• China forces birth control on Uighurs and other minority Muslims to suppress population (The Independent)
• Philippines Police Crack Down on LGBT Protest (Human Rights Watch)

 

Africa

• In central Mali, community fighting and impunity, ‘overwhelming’ efforts to protect civilians (UN News)
• Egyptian belly-dancer sentenced to three years in prison for stirring up ‘immorality’ (The Independent)

 

World

• Global coronavirus death toll exceeds half a million (Al Jazeera)
• Covid-19’s Serious Risks for Economic Rights (Human Rights Watch)

 

 

 

Indian Parliament revokes the agency of transgender persons in determining their gender identity

by Aishwarya Singh

The Transgender Persons (Protection of Rights) Act, 2019 (the Act) came into effect on December 5, 2019 amidst much criticism and protests by the transgender community and activists in India.  The Act is a revised version of the Transgender Persons (Protection of Rights) Bill, 2018 (2018 Bill), which had lapsed in the Upper House of the Parliament.

One of the main provisions of the Act provides that the issuance of a certificate of identity as a transgender person is conditional upon the “procedure” prescribed by the executive, leaving transgender people vulnerable to invasive procedures, which can be introduced at the whim of the executive.   This fear is cemented by the fact that under Rule 4 of the draft rules, released by the Ministry of Social Justice and Empowerment, such a certificate will only be issued after a report of a government hospital psychologist is produced, and verified by a District Magistrate.

Furthermore, the Act requires transgender persons to undergo sex reassignment surgery, after which they would become eligible for receiving a certificate of identity as a member of the opposite sex to the one assigned at birth.  The process of legal recognition of gender identity under the Act takes away the right of self-determination of gender and makes the recognition conditional upon the bureaucratic scrutiny of the body of the trans subject, which I argue is enabled by the contradictions in the Indian Supreme Court’s judgement in the case of  NALSA v. Union of India (NALSA) on the right to self-determination of gender.

Under the Act, a transgender person has the “right to be recognised as such, in accordance with the provisions of this Act”. Since the recognition of the person as ‘transgender’ is subject to the provisions of the Act, the procedure of such recognition is of paramount importance.  The 2018 Bill contemplated the constitution of a District Screening Committee (DSC) which, inter alia, included a government officer, medical officer and a psychiatrist/psychologist.  The committee would consist of only one member from the transgender community.  Pursuant to the recommendation of the DSC, the District Magistrate would issue a certificate of identity as a transgender person.  The constitution of the DSC was one of the most criticized aspects of the 2018 Bill, since it would not only have forced transgender persons to consent to a psychological and medical examination, but would also have reinforced the notion that transgender identity is a subject of medical evaluation and not just another gender variation.

The Act does away with the constitution of a DSC.  However, Section 6 of the Act provides that the process of issuance of the above certificate of identity by the District Magistrate is subject to “such procedure and in such form and manner, within such time, as may be prescribed” by the executive.  This provides significant room to the executive to make rules in this regard that could equally violate a transgender person’s constitutional right to privacy and dignity recognised by the Supreme Court of India in the NALSA judgement (paragraph 66).  As noted above, the draft rules introduced by the Ministry of Social Justice and Empowerment provide that the right of self-determination as a transgender person is conditional upon psychological evaluation.

The draft rules were released on April 18, 2020 for the purpose of public consultation and the deadline for submitting the comments was May 18, 2020.  The release of the draft rules during the lockdown imposed due to the Covid-19 pandemic has made mobilisation against the provisions of the rules difficult.  Further, Section 7 of the Act makes the legal recognition of a person, as a member of the opposite sex to the one assigned at birth, conditional upon “surgery to change their gender“.

The above provisions are at odds with the right to self-perceived gender identity provided under Section 4 of the Act.  However, the contradictions between the bureaucratic screening and imposition of gender identity, and gender self-determination under the Act, is in continuation of the oscillatory approach towards the recognition of gender identity adopted by the NALSA judgement.  Although the judgement was celebrated for its recognition of  transgender identity and affirming the constitutional rights of the transgender persons, its interpretation and implementation by the lower judiciary, has been inconsistent, wherein the courts have used sex reassignment surgeries (SRS) or psychological evaluation as the basis of recognition of gender identity.

Under the operative part of the judgement, written by Justice K.S. Radhakrishnan and Justice A.K. Sikri, a transgender person’s right to decide their self-identified gender has been upheld and the Centre and State Governments have been directed to grant legal recognition of their gender identity, such as male, female or third gender (paragraph 129), without any mention of medical procedures as a requirement for legal recognition of the that identity.   However, the ‘grant of legal recognition’ by the government has opened the door for policing of gender identity by bureaucratic committees.

Furthermore, Justice Radhakrishnan, while advocating for self-identification of gender, suggests a psychological test to determine sex and gender (paragraph 75).   Justice Sikri’s opinion is even more restrictive and uses biological essentialism for the granting of constitutional rights.  He opines that “a person has a constitutional right to recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well” (paragraph 106).  The observations of the judges, hence, are open to interpretation enabling the Indian Parliament to pass an Act which is antithetical to the idea of self-determination of gender.  Simply put, the process for recognition before the law and control over one’s own body should be separate from any medical interventions.  But if in case, an individual’s personal identity or transition process requires medical support, those services should be made available and be accessible.

In addition, the process of legal recognition of gender identity, conditional upon bureaucratic screening and medical procedures, violates the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles), which although not legally binding, are considered as the international standard in combating gender identity based discrimination.  Upholding Yogyakarta Principles as a part of Indian law by the Indian Supreme Court in the NALSA judgement and Navtej Singh Johar v. Union of India should be seen as a watershed moment for Indian Transgender Activism and the government must try to bring this Act in line with it to do justice to this community.  Meanwhile, the Act has been challenged in the Supreme Court but, it is hoped that the principles such as self-determination of gender are adhered to in letter as well as spirit and are not violated under the name of  psychological tests (which are typically based on binary frameworks e.g. “being trapped in the wrong body”) or a biological test, both of which are exclusionary and not inclusive of the varied ways in which gender is experienced.

 

ABOUT THE AUTHOR

Aishwarya Singh is qualified to practice law in India. She is interested in constitutional law, anti-discrimination law and international human rights law.

Falling short where it matters most: The need to supplement anti-poverty measures with anti-discrimination legislation

by Viraj Ananth

Conventional understandings of socio-economic disadvantage (SED) view it as a multi-dimensional phenomenon, requiring simultaneous efforts to redistribute economic goods and eliminate status-based inequalities.  However, anti-poverty measures in numerous jurisdictions including India, Canada, the United Kingdom, and the United States of America, ignore this dichotomy and focus predominantly on redistribution of material wealth.  It is thus unsurprising that while some reports boast of significant declines in global poverty, more modest ones highlight the failures of redistribution to uplift the most vulnerable populations.

Within this context, the recent Indian Equality Bill, 2019 (and its subsequent 2020 version) were welcome developments.  In contrast to earlier attempts to draft an all-inclusive anti-discrimination legislation, the Equality Bill, 2019 includes SED as a ‘protected characteristic’.  This piece argues in favour of incorporating SED as a stand-alone ‘protected characteristic’ in anti-discrimination legislation because: first, recognition effectuates redistribution by eradicating the social restraints on upliftment; second, inclusion refocuses redistributive efforts on the specific needs of socio-economically disadvantaged groups (‘the Group’); and third, inclusion allows for more comprehensive protection of other protected groups.

 

Recognition as the means to effectuate redistribution for the group

Global efforts to uplift the Group have largely been concerned with the redistribution of material wealth. This approach ignores the profound status-based discrimination of the Group, which precludes it from effectively using material resources to elevate itself. Anti-discrimination legislations respond to such status-based discrimination through ‘recognition’ — which seeks to deconstruct hierarchical social relations and eradicate prejudices that disadvantage status groups. Accordingly, recognition must supplement redistributive measures by eradicating bias in society, to ensure meaningful upliftment.

Historically, the Group has been negatively stereotyped, both inter-personally as well as structurally, to the extent that bias pervades government policies and decisions. Stigma arises because the merits of the Group are evaluated against dominant standards, with little consideration of its specific conditions. Accordingly, in market economies, low economic value or output is commonly attributed to personal fault and entails direct status implications — resulting in the construction of ‘poorness’ as a status group. The Group is commonly identified with undesirable characteristics like low intellect, laziness and disinterest in education and elicits negative reactions such as disgust and neglect. This results in discrimination in routine interactions including school admission, job recruitment and housing, effectively denying the Group of participatory parity. Stigmatisation also causes psychological harms, including depression, low self-esteem and self-stereotyping.

 

Bias may be structural — wherein ‘neutral’ institutions and policies, developed within a context of societal inequality, subconsciously reinforce negative stereotypes. For instance, rights-claims by the Group are inherently viewed as suspect, in that individuals must first justify their claim to adjudicatory space. Cognizant of such structural biases, the Group is less likely to approach social institutions. Such structural bias may also be perpetuated through judicial decisions which ignore the cultural dimensions of poverty. For instance, both the Canadian and Indian Supreme Courts have, on occasion, ignored the social restraints on upliftment and characterised the Group as irresponsible authors of their own misfortune.

Laws may also entrench this bias by having a disproportionate impact on the Group. For example, several countries frame social security as a predominantly contributory model, which only rewards those who are ‘productive’. Similarly, zoning laws often force marginalised communities to stay far from their workplaces in urban centres. These laws underpin prejudices that the Group is less deserving of dignity. Such systemic bias against the Group negates established conceptions of justice — such as those of John Rawls and Thomas Nagel — who emphasise that individuals’ pursuit of wealth should not be restrained by arbitrary determinations like social status or biased political decisions.

Therefore, SED undeniably involves identity politics which inhibit the Group’s ability to uplift itself using material resources. The Group is not merely identified as unworthy of respect but is also denied the status of a full citizen in society. Accordingly, redistributive measures must not operate in isolation and should be supplemented by recognition of the status dimensions of SED. This will tackle stigma, affirm individual value and recognise past disadvantage arising from cyclical exclusion. In short, recognition serves as the means for effective redistribution.

 

 

Aligning redistribution with the needs of the group

The second compelling argument for including SED as a standalone ground in anti-discrimination legislation is its impact on reconciling biased redistributive measures with the needs of the Group. Redistributive policies commonly result in disparate treatment of socio-economically disadvantaged individuals due to the internalised prejudice of decision-makers.

At the highest level, this is seen through the reliance on ‘absolutist’ measures of poverty, which ignore social factors. By defining individuals in purely economic terms, and ignoring the specific circumstances that may restrict their full participation, policy-makers affirm notions of the Group as responsible for their hardships. Simultaneously, narrowly defined objectives analogous to ‘equality of treatment’ fail to address the asymmetric power structures that restrict equality of outcome or opportunity. This is best evidenced by the failures of the Jawaharlal Nehru National Urban Renewal Mission and the Rajiv Awas Yojana (Scheme) in India with respect to the relocation of slum dwellers. Dwellers were provided alternative housing arrangements far from their sources of income, in areas lacking basic infrastructure such as electricity, water and sewage disposal. No consideration was paid to providing alternate sources of employment or informal credit, which were otherwise found in slum networks. A narrow conception of redistribution inhibited the effectiveness of these programs, by disregarding the specific circumstances that obstruct slum dwellers’ betterment.

Narrow objectives are also commonly reinforced by success parameters that “validate particular world views and prioritise selected areas of knowledge”. For instance, several social security schemes in India characterise families as single units and define income in terms of the male breadwinner. This reaffirms dominant narratives by relegating issues of women poverty to the background. Further, redistributive measures are often coloured by the biases of decision-makers, who may make unfounded assumptions about the worth and needs of the Group. Such biased measures in turn reinforce the prejudices which motivate them. In the slum dwellers example, these biases materialise in the form of poor quality houses, with severe structural defects. This amounts to government-endorsed reinforcement of societal perceptions about slum dwellers as unclean and unworthy of respect.

Thus, policies which appear neutral often have cultural dimensions that serve to the detriment of the Group. Inclusion of the ground will allow the Group to challenge both SED discrimination and government policies that reinforce negative stereotypes. This will allow the Group to bypass constitutional challenges relying on the broader right to equality, which are unlikely to succeed in jurisdictions like India, Canada and South Africa due to the narrow ambits of the right as excluding socio-economic disadvantage. Concurrently, the public sector duty to promote equality will ensure that government policies pay due regard to the increasing socio-economic divide, and eradicate systemic bias through evidence-based decision making.

 

Better protection for other protected groups

The final argument for including SED as a ground deals with its widespread intersection with other forms of status-based discrimination. It is well established that protected groups are disproportionately represented among the Group. Accordingly, many such groups are defined not by status nor class alone, but by a complex intersection of oppressive forces. This intersectional disadvantage means that the lived experiences and interests of such groups are vastly different from other groups defined solely by the same status. Accordingly, in adjudicating rights-claims by such individuals, courts must not engage with the disadvantages in silos, but must consider their intersectionality — in terms of the cross-cutting nature of status-based and poverty-based discrimination.

Further, due to this disproportionate representation, numerous governmental and private policies which purportedly discriminate on socio-economic grounds — such as voter ID laws and credit history screening for job recruitment — inordinately impact other protected groups like women and ethnic minorities. Traditionally, such specially disadvantaged groups would be required to challenge these policies as discriminatory against their status. However, these policies are commonly defended as discriminating on the basis of, not status, but socio-economic grounds (which is permissible). Inclusion of SED as a standalone ground will push courts to better appreciate the linkages between forms of discrimination and deliver more comprehensive responses.

Framing rights-claims along status lines may also serve to alienate other socio-economically disadvantaged status groups from the benefits, and foster unhealthy competition for scarce resources. Including SED as a ground will allow claims along both status and SED lines. This will allow the Group to recognise shared experiences, mobilise along socio-economic lines and pose stronger challenges to discriminatory policies. Finally, inclusion will reduce socio-economic disparities within protected groups. Recruitment and housing policies, for instance, often favour socio-economically advantaged members of a protected group (rich women) to the detriment of their counter-parts (poor women). A standalone ground of SED will better protect against such outcomes.

 

Conclusion

In societies where individual worth is defined by both market and cultural values, it is superfluous to address SED through merely the redistribution of economic goods.  SED is inextricably linked to status, because social barriers restrict the Group’s ability to use material resources to uplift itself.  Once this is established, it is clear that anti-discrimination statutes — which eliminate prejudice and affirm individual worth — must supplement redistributive efforts.  Further, by granting justiciable rights and imposing an equality duty on the government, anti-discrimination legislation will reconcile redistribution measures with the specific needs of the Group.  Finally, in allowing claims to be framed as both status and SED-based, a standalone SED ground will bring intersectional considerations to the forefront and grant fuller protection to all protected groups. This will also stimulate mobilisation along socio-economic lines and reduce economic disparities within protected groups.

 

ABOUT THE AUTHOR

Viraj Ananth is a fourth-year B.A. LL.B. (Hons.) student at the National Law School of India University, Bangalore.

Sex redefined: The US Supreme Court expands anti-discrimination laws to include LGBTQ rights

by Palak Kumar and Insaf Ahamad

A landmark decision rendered by The U.S Supreme Court on June 15, prohibits employment discrimination of gay and transgender individuals.  Expanding the scope of Title VII of the Civil Rights Act of 1964, which prohibits sexual discrimination, the court ruled that discrimination based on sex includes discrimination based on sexual orientation.

The court consolidated three cases  Bostock v. Clayton County, Altitude Express v. Donald Zarda, and Harris Funeral Homes v. EEOC, where each of them involved the termination of employees by the employers upon learning about their sexual orientation or gender identity.  Bostock, who used to work for Clayton County, Georgia, as a child welfare advocate, was terminated for conduct “unbecoming” of a county employee because of his participation in a gay recreational softball league.  In another similar incident, Donald Zarda, who was a sky diving instructor was terminated shortly after he told one of his clients that he was gay.  Finally, Amy Stephens who had joined the funeral home as a male employee was terminated after six months when she started going to work dressed in women’s clothes.  In all of the above incidents, the sexual orientation of these employees is not said to have had any bearing on the skills required for their job.

Title VII outlaws discrimination on the grounds of race, color, religion, sex and national origin. The Court was faced with the issue as to whether the term ‘sex’ would also include sexual orientation.  The employers, by referring to various contemporaneous dictionaries, emphasized that the term ‘sex’ refers only to an individual identity as a male or a female, as determined by reproductive biology.  The employees on the other hand contended that the term is not restricted to anatomy and has wide contours to include sexual orientation and gender identity within its ambit.

With a majority of 6:3 the U.S Supreme Court finally put to rest the much-debated issue of whether termination of an employee on grounds of sexual orientation and gender identity would be a violation under Title VII.  The landmark decision authored by Justice Neil Gorsuch recognized that “when an employer fires an employee for being homosexual or transgender, he fires that person for traits or actions that would not have been questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The majority relied on the ‘but-for causation test’ and held that so long as sex is one ‘but-for’ cause behind the employer terminating the employee, it involves a violation of Title VII.  The court was of the view that an employee’s sexual orientation or transgender status should not be the basis for an employer’s decision and an employer who relies on an employee’s sex as a reason for his discharge from employment will be guilty of discrimination under Title VII.

The Court by citing a plethora of precedents vindicated its stance that any discrimination ‘because of’ sex would not be justified irrespective of the objective sought to be achieved.  It relied on Phillips v. Martin Marietta Corp, wherein the employer refused to hire women with young children but hired men having young children.  The employer eschewed the discrimination by pointing out that discrimination was dependent not only on ‘sex’ but also on another criterion, which was the presence of children.  Similarly, in In Los Angeles Dept. of Water and Power v. Manhart, the employer insisted that its discrimination was mainly to promote equality of two sexes.

The court held that the lessons that the above cases hold for us would be that we are not concerned with a) the label or the reason why the discriminatory practice was undertaken, b) whether the discrimination was solely on the basis of sex or any other factor; c) whether the practice was adopted equally on both sexes as groups. It held that an adverse treatment of an individual due to his/her sexual orientation or transgender identity would inherently amount to discrimination irrespective of the above factors.

In a scathing dissent, Justice Alito along with Justice Thomas opined that ‘transgender status and ‘homosexuality’ are distinct concepts from ‘sex’ and discrimination on the basis of sexual orientation does not entail discrimination on the basis of sex and “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted”. To supplement this, he interestingly noted how homosexuality was considered to be a mental disorder in 1964 when Title VII was enacted.  Also, he finds it difficult to understand how the cases of  Phillips v. Martin Marietta Corp (where women with young children were discriminated against vs. men with young children) and  Los Angeles Dept. of Water and Power v. Manhart  (where women were required to make larger contributions to the pension fund ), cited by the majority to buttress their decision, finds any relevance in the current case as they were cases that plainly dealt with ‘discrimination on the basis of biological sex’.

The role of the judiciary is limited to the analysis of statutory text rather than statutory interpretation.  Affirming this, Justice Kavanaugh in his dissent argued, while interpreting statutes, courts should adhere to the ordinary meaning and not the literal meaning. To explain this, he gives an example, “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes”

The separation of power collapses when the judiciary starts to legislate, and the Rule of law and democratic accountability suffers when courts start looking at legislators’ subjective intentions instead of the ordinary meaning of the text

In his dissent, J.Alito further raised concerns about the far-reaching ramifications of the decision and how it can have implications on freedom of religion, freedom of speech, personal freedom, and safety. For instance, bringing attention to bathrooms, locker rooms and similar things he states, “For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm” and the judgment provides no reason why a transgender person’s (with a male body and identifies herself as a female) claim to access women’s locker room might not succeed.  He also raised similar concerns in women’s sports and housing.

While the victory is to be celebrated, the judgment also opens a new door for conflict between non-discrimination laws and freedom of religion.  Title VII which grants an exemption for the religious organizations allows them to hire “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities”. It remains to be seen in the future how the judgment impacts the hiring autonomy of faith-based organizations and if the same ‘but-for causation standard’ stands when the employee claims he/ she was terminated based on religious belief or expression i.e. if the individual’s conduct flouts religious tenets, noting that major religions like Christianity, Islam and Judaism do not recognize homosexuality.  Also, the possibility of employers challenging the application of Title VII to gender identity or sexual orientation under the Religious Freedom Restoration Act 1993 is open if the employers feel such an application violates their religious convictions, a question that was not addressed by the court.

Nevertheless, the decision marks a resounding victory to the LGBTQ rights movement in the U.S and the fact that the ruling comes just days after the Trump administration reversed the non-discrimination protections for LGBTQ people in health-care and health insurance further adds to the victory.

 

ABOUT THE AUTHORS

Palak Kumar is currently an undergraduate student of B.A L.L.B (Hons) at the National Law Institute University, Bhopal.

 

 

 

Insaf Ahamad T.K  is currently an undergraduate student of B.SW L.L.B (Hons) at the Gujarat National Law University, India.

 

Violence against women: The shadow pandemic and why the Sustainable Development Goals and human rights law are as critical as ever

by Christina Beninger

The COVID-19 pandemic amplifies and exacerbates the many structural inequalities that exist across societies and the world. While the virus may not discriminate, people and societies do. Those who have the least power and rights in societies – such as minority groups, women and children – are most vulnerable to being disproportionately impacted and ‘left behind’ in the wake of the current pandemic and its many health and socio-economic consequences.

As the UN highlights in its Policy Brief on the Impact of COVID-19 on Women, the pandemic has clear gender dimensions that are deepening the impact of longstanding gender inequalities, with serious consequences for women’s human rights. Women are shouldering the weight of an unequal care burden, are disproportionately vulnerable to economic impacts, and see their health rights, especially sexual and reproductive health rights, under threat as resources are reduced and reallocated.

In particular, violence against women (VAW) has emerged as a “shadow pandemic”,  amid rising rates of domestic violence, intimate partner violence and femicide as countries lock down and critical services become more difficult to access.  However, such violence is not a new problem. VAW has long been one of the world’s most pervasive human rights violations, a brutal manifestation of gender inequality and discrimination against women. Yet, there are already global frameworks in place to prohibit gender discrimination and combat VAW through existing international human rights law (IHRL) and the Sustainable Development Goals (SDGs). As this article argues, a rights-based, gender-centered approach to combating VAW is as critical as ever and must be at the centre of responses.

Violence against women – the shadow pandemic

According to the World Health Organization, at least 1 in 3 women experience VAW worldwide. The consequences are significant, impacting women’s rights to equality, health and justice. Women are killed, and suffer physical and mental harm. In sexual violence cases such as rape, their sexual and reproductive rights are threatened. Women face a wide range of barriers to accessing justice and legal protection in such cases, especially due to discriminatory social norms.

VAW affects different groups of women in different ways. The situation is often compounded for women who may face multiple and intersecting forms of discrimination, on grounds such as ethnicity, Indigenous status, disability, or sexual orientation. In addition to the severe human rights, health, and justice consequences, there is also a huge economic cost. It is estimated that VAW costs the global economy $1.5 trillion USD.

As often happens during times of crisis, amidst the current COVID-19 pandemic countries around the world have seen a significant increase in VAW.  Factors contributing to this rising shadow pandemic include pre-existing discriminatory social norms, compounded by lockdowns trapping women with their abusers, socio-economic hardship, and reduced access to services due to restrictions.

For example, in France, there has been a 30% rise in reports of domestic violence. In South Africa, VAW complaints reported to police rose by almost 40% in the first week of an intensive lockdown (as compared to 2019 weekly averages), with more than 2,300 reported cases in the first week alone. Yet, these figures are likely a fraction of the true scale of the problem, as most cases of VAW are never formally reported.

 

Leaving no woman behind? An approach based around human rights and the Sustainable Development Goals (SDGs)

The UN Secretary-General has recently said that VAW prevention and response must be a key part of pandemic response. This article argues that a rights-based, intersectional gender-centered approach, rooted in international human rights law and the SDGs, should be at the heart of the response to the current pandemic and beyond.

The SDGs offer a rights-based global framework for inclusive development that pledges to ‘leave no one behind’. Recognising that women are too often left behind; gender equality is a cross-cutting theme and foundational principle of the SDGs.  SDG 5 pledges to achieve gender equality and combat various forms of discrimination against women. It specifically includes the elimination of VAW as one of its key targets. However, progress to date on SDG 5 has been slow, and there are serious risks of backsliding during the current global crisis.

The SDGs are not only high-level global political commitments, they are based on existing international human rights law. This includes the Universal Declaration of Human Rights and binding international human rights treaties. There is already a growing body of international human rights law that prohibit gender discrimination and VAW, including the widely-ratified UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and ‘soft law’ developments, such as the UN Declaration on the Elimination of Violence against Women.

Governments have growing legal and normative obligations under IHRL to take action and exercise due diligence to prevent and respond to VAW. According to the CEDAW Committee of experts in its General Recommendation No. 35, this includes ensuring comprehensive legal protections and holistic response services are in place, as well as service providers adequately trained to respond to VAW.  Working to bridge the gap between these legal and normative standards and the lived reality for women who experience VAW is critical – especially during crises such as the current pandemic.

 

Key measures for a gender-centered response to VAW during the pandemic and beyond

Various actors, including the UN, governments, and women’s groups have outlined a number of key measures necessary for ensuring a rights-based gender-centered pandemic (and beyond) response to VAW. Below, five key measures are highlighted.

1. First, ensure an intersectional gender perspective that puts diverse women and women’s groups at the centre of all national and international analysis and planning. SDG 5.5 pledges women’s equal participation and opportunities for leadership. Such an inclusive response is crucial given there are such differentiated gender impacts in the current pandemic situation, many disproportionately impacting women. Further, an intersectional approach is necessary to understand the differing dimensions and impacts of VAW, the pandemic, and responses to it experienced by women of varying backgrounds and situations.
2. Second, ensure comprehensive legal protections and policies for gender equality and VAW are in place, and that they are effectively implemented by adequately trained and resourced police, prosecutors, judges, and other relevant actors. While there has been notable progress with more countries enacting VAW laws, as required by SGD 5’s targets, some are not adequately implemented or resourced. There are still 45 countries that do not have any domestic violence laws in place at all.
3. Third, ensure critical VAW services, including health care, psychosocial support such as counselling and shelters, and legal services including legal aid, are in place and properly funded to provide accessible critical services. Ensuring that service providers are trained to provide appropriate responses and that women’s groups and civil society organizations providing services are adequately supported and resourced. During crises, such as the current pandemic, such services should be designated and funded as essential services. For example, Canada’s COVID-19 response plan includes $50 million CAD for shelters and support services for women.
4. Fourth, enhance awareness campaigns about VAW and designate safe places and innovative strategies for women to report violence and seek help. For example, in countries including the United Kingdom and Colombia, pharmacies and shops are designated as safe places to report violence. There has been a rise in innovative online mechanisms, such as utilising Whataspp and specialized apps to safely report violence and seek help. In countries including Argentina, emergency court processes used to seek legal protection in VAW cases are carrying on online.
5. Finally, gather and analyze sex-disaggregated data. This data is important for monitoring progress towards SDG targets, especially as there are gaps in gender equality and VAW data globally. Such an approach is also crucial to ensuring gender-sensitive and evidence-based policy and services.

The SDGs and IHRL remain as crucial as ever, if not even more so, in the wake of the pandemic that has highlighted existing inequalities in the world on various grounds, especially gender. This shadow pandemic of violence against women is itself a major health crisis – not to mention a human rights and justice emergency.  Working to eradicate VAW, with an approach rooted in international human rights law and the promises of the SDGs, must be part of both the current pandemic response and forward planning to meaningfully create a gender equal world.

This article is based on an earlier presentation given at the 2020 Global Symposium on Human Rights, the Sustainable Development Goals (SDGs) & the Law, conducted online in May 2020.

 

ABOUT THE AUTHOR

Christina Beninger is a Canadian lawyer with expertise in international law, human rights, rule of law, access to justice, and gender equality.  Christina’s more than 10 years of international development experience includes working with the United Nations Development Program and formerly serving as the International Development Law Organization’s Country Director for Myanmar.  She holds an LL.M. in International Human Rights Law (Essex), and she is currently a PhD candidate in Law (University of Cape Town).  Her doctoral research, funded by Canada’s Social Sciences and Humanities Research Council, focuses on the rule of law and women’s access to justice in gender-based violence cases.

The fight for equality starts at the local level

By Myriam Naoual 

While we often talk about the role of international entities and NGOs in the fight against discrimination, local not-for-profit organisations and charities do not receive such recognition or attention.  However, these organisations are usually the ones contributing more directly to promoting equality within the local community.  My organisation, Ipswich and Suffolk Council for Racial Equality (ISCRE), is one of them.  Its main purpose as a Charity is to support individuals and organisations in the local community to understand the nature and extent of inequality in fields such as the criminal justice system, housing, employment, education, health, and social care.

ISCRE is one of the very few remaining local Racial Equality Councils.  It was created in 1977, a time when Racial Equality Councils were being implemented all over the country in response to the overt discrimination and violence against minority communities at the time.  It was set up following the Race Equality Act 1965, the very first piece of legislation outlawing racial discrimination in public places in the UK.  The principal reason for the creation of ISCRE in Suffolk was to address a number of problems faced by the BAME community locally, notably with regard to housing, education and the police force.  At the time, cases of discrimination were prevalent in Ipswich.  Local authorities were pushing black minorities to establish themselves in only three areas of the town and were making it difficult for them to live elsewhere.  In schools, the BAME community was left behind in the curriculum and black children were made to feel inferior.  In policing, racial discrimination was pervasive as black people were often being stopped for no apparent reason.  In this climate of inequality, ISCRE was there to improve relations between public bodies and racial minorities by raising awareness about the challenges they faced.

Nowadays ISCRE still provides a platform for BAME communities to engage with mainstream service provision.  However, it has now expanded to cover all aspects of equality. We work across all public services, including in the provision of criminal justice, prisons, schools and the health sector.  We focus on the communities which are hard to reach or isolated, including individuals with disabilities and people who need cultural or religious support.  We do not aim to speak on behalf of the communities, but rather we engage with them to establish where services are not responding appropriately to their needs.  As an organisation, we are working to eradicate inequalities by challenging decision makers.  More importantly, we scrutinise service providers to ensure that when providing their services, they understand and take into account the different cultural backgrounds of the people living in Suffolk.

The cover of the ISCRE Annual Report – a painting of 2 of their colleagues and 2 trustees

A good example of our current work is our prison project. The purpose of this project is to look critically at the relationship between crime and race, by working both with those currently in prison and with police officers.  In prison, there is often no space for men to talk about how their cultural experience is related to ethnicity or religion, and how each individual’s challenges differ depending on their cultural backgrounds. It is often believed that people commit crime because of their race, whereas in reality it is mostly because BAME individuals come from the poorest communities. Police officers do not yet have the adequate training to understand the challenges faced by people from the BAME community and how they are disproportionately affected.  ISCRE aims to challenge common misconceptions and to start a discussion about disproportionality in the prison setting.  We try to give men a safe space to discuss their cultural experience.  We help them understand why they are in custody and how beyond prison they can make more informed decisions.  We also seek to create a positive relation with police officers by informing them and raising awareness about the diversity of backgrounds.

In addition to providing a platform for local communities to address discrimination in their public services, ISCRE also devised a way to raise awareness at the local level to prevent discrimination, as well as to ensure access to legal help for individuals who have been discriminated against.  In 2013, the project ‘Tackling Discrimination in the East’ (TDE) was born.  TDE provides free legal advice, assistance and representation to anyone experiencing unlawful discrimination whilst living and/or working in Suffolk (and to a lesser extent Norfolk).  The project’s main tools are public legal education, awareness raising, leaflet guidance, public scrutiny and legal casework.  TDE is now part of Suffolk Law Centre, a charity which was set up by ISCRE in 2018 and which also provides a general Legal Advice Clinic for individuals from vulnerable backgrounds.

Working for ISCRE and Suffolk Law Centre has made me realise how important local work is.  While it is often assumed that those who can really make a change in the fight against discrimination are lawmakers and politicians, I believe that the fight for equality starts at the local level, where it is led by affected communities themselves.  By working alongside members of the community on a day-to-day basis, I can see the positive impact of the work we do on people’s lives here in Suffolk, especially for the most vulnerable. Unfortunately, most local charities do not get the level of recognition they deserve for challenging disadvantage and promoting equality for everyone.  We hope that the current Black Lives Matter movement and the newly acquired consciousness of society will raise awareness about all the work achieved locally to prevent discrimination and challenge inequalities.

ABOUT THE AUTHOR

Myriam Naoual is a University of Essex Human Rights Centre alumna and a legal intern/paralegal at Ipswich and Suffolk Council for Racial Equality (ISCRE). She is passionate about promoting social justice and aims to achieve a career as a discrimination lawyer.