Spotlight on Louise Melling

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Louise Melling.

 

About Louise

Pictured: Louise Melling Photo: ACLU/Molly Kaplan ©2014 ACLU All Right Reserved

Louise Melling is a Deputy Legal Director at the ACLU and the Director of its Center for Liberty, which encompasses the ACLU’s work on reproductive freedom, women’s rights, lesbian gay bisexual and transgender rights, freedom of religion and belief, and disability rights.   In this role, she leads the work of the ACLU to address the intersection of religious freedom and equal treatment, among other issues.

Louise has established the ACLU as a national leader in opposing the use of religion to discriminate and in supporting state advocacy teams that have pushed back legislation that would permit discrimination in the name of religion.  In her time as Director of the Center for Liberty, the ACLU has pursued a program of litigation, advocacy, and public education campaigns that culminated in the 2015 Supreme Court decision recognizing the fundamental right to marry for same-sex couples.

 

Students’ Questions Answered

The students at Essex were really excited to have the opportunity to send in their questions to Louise, to learn more about her work in the field of human rights.

 

Q: To what extent will US domestic law be able to guarantee reproductive rights across the country?  What should be done to establish equal reproductive rights across all states?

A: There are only two ways to establish reproductive rights across the country:  either with an act of congress or a decision of the Supreme Court.  To see advances at the federal level, we need to elect a Congress and a President that believe in equal reproductive rights – the President because the President nominates federal judges and justices, and signs or vetoes bills.  The congress because we need both bodies if we are to pass legislation and we need the senate to confirm or block judicial appointments.

What’s critical to success is for people to press for changes in our law – to pass the Women’s Health Protection Act, to provide a backstop against state abortion restrictions; to lift prohibitions on federal insurance plans (for low-income people, for the military, federal prisoners, and more) covering abortion care; to invest in solutions to our very high maternal and mortality rates, particularly for Black Americans.

It can be hard to build the essential momentum, even though people support the change, given the many challenges before us now.

 

Q: What are the chances of the US Supreme Court ruling against the Trump administration’s moral exceptions in the case of Little Sisters of the Poor v Pennsylvania?  How significant is it to the right to healthcare?

A: There is a many years battle in the United States as to whether employers can refuse to provide insurance coverage for contraception because of religious objections.  I think of this as a question of whether the employer can make its employees pay for its religion by denying the benefit.

The Trump Administration adopted rules providing that all employers with religious objections could refuse to provide the coverage, and virtually all employers could refuse if they had moral objections.  The ACLU has consistently opposed such exemptions.  While we support religious freedom, it is our position that religious freedom doesn’t mean the right to harm others, including by discriminating.

Challenges to the Trump rules went to the Supreme Court.   The Court ruled this month that the rules were authorized by the Affordable Care Act.  Significantly, the Court did not reach arguments that the Religious Freedom Restoration Act, a federal statute, authorizes — or requires – exemptions for those who object to providing the coverage.  In other words, the Court did not rule that the federal protections for religious freedom require that the government exempt employers that objecting to providing coverage.

That means we live to see another day and the litigation and public debate – as to whether the constitution or federal statutes protect the right to discriminate – continue.

 

Q: How effective was the Supreme Court’s ruling in 2015? Did the challenges that same-sex marriages face change since then?

A: Most of the ACLU was gathered in a conference room on the day the decision was announced.  There were screams and tears of joy.  The decision said that same-sex couples were no longer treated as strangers in the eyes of the law; gay and lesbian relationships were no longer treated as other and illegitimate.  That alone is profound.

There are still challenges to the right, the one pressed most often takes the form of religious objection.  Businesses continue to go to court to argue, for example, that, because of their religious objections, they must be able to refuse service to couples seeking to buy a wedding cake, rent a facility for a wedding reception, or hire a photographer.  That issue is still unresolved in the courts.

But public acceptance of the right to marry is great, and the right to marry rooted in the constitution.  And now this year the Court recognized our federal statute barring discrimination based on sex to bar discrimination against LGBT people.  The fight is still on but the progress is real.

 

Q: Your decades’ long work with ACLU has involved work on women’s rights and LGBTQ rights. Since President Trump was inaugurated in 2017, there have been multiple policy reversals including the rescinding of transgender student advice published by the Obama administration. How do you think the human rights community can contribute to the continuing fight for the rights of women and LGBTQ individuals in the current political environment and given the rollback on recent protections?

A: There are so many ways to contribute.  In the United States, its critical to support the right to vote – under attack now – and to get out the vote; it’s critical to engage as deeply with state elections as federal, as so many of our rights are decided by state governments; it’s critical to organize, ideally with a long-term vision.  The LGBT and guns rights movements in the US are both seen as having made significant strides toward their aims because they kept their eyes on a long-term goal.  And we need to organize, as much as possible, across movements, to support one another.  Many of us, after all, carry multiple identities, and we aren’t free if we aren’t all free.

 

Q: During the COVID-19 pandemic, the world has witnessed a drastic increase in domestic violence, the diversion of resources away from vital women’s services and governments avoiding the enforcement of existing obligations. For example, the UK government has suspended mandatory reports on the gender pay gap for businesses. How has the COVID-19 pandemic and lockdown measures affected (or exposed) existing gender inequalities in America and how has it impacted upon your work on women’s rights (in America specifically)?

A: The pandemic has exposed so many inequities.   Who has access to health care.  Who has access to a safe living environment.  Who has access to safe working conditions.  Who is paid a living wage.  Whose work has not been valued.  Who has access to paid sick leave.

When ‘stay at home’ orders first went into effect, my hope was that we would emerge appreciating teachers, nannies, home health aides, cleaners – all the women doing the work that has for so long been undervalued and unseen.  Really, I’d hoped we’d all appreciate how interconnected our lives were and that we need to change policies to value those so essential to the economy and the functioning of so many families.

The US now is so divided – over basics like wearing a mask – that I am less optimistic that we come out of this with bigger hearts and commitment to robust reform.   The exception – I hope – will be with Black Lives Matter and a commitment to dismantling white supremacy.  There is a conversation – and action – unlike anything I remember in my adult life.

 

Q: As the George Floyd and Black Lives Matter protests have gathered international attention, how do you believe civil rights activists can ensure that their actions continue to gain momentum to trigger real institutional change (in America specifically, given your work with ACLU)?

A: George Floyd’s killing was a turning point. It was a public lynching.  It woke up much of the nation.  And it came after many other police murders, and much activism around policing – in schools, in the streets – and the consequences for Black people in particular.  The fire caught.  Now, in short order, we are seeing change that was long resisted – confederate monuments falling, police budgets being reduced, police removed from schools, chokeholds banned.

The key is to keep up the heat.  The police and Trump Administration seem to be offering ample fodder to ensure that’s the case.

 

Q: After pivotal human rights rulings, historically there has often been resistance to implementation and repercussions in the community as witnessed with the Brown v Board of Education case. Since the Supreme Court’s landmark ruling in 2015, have you witnessed a backlash against LGBTQ rights? How have you overcome such obstacles in your work?

A: Change is hard.  I sometimes say that big advances are seismic cultural shifts.  It’s so essential for those who have been excluded, and jarring for those who have been used to one way of being.  And there will always be resistance.

When we talk about resistance to LGBT rights, we say that Plan A was to resist any advance.  Resist marriage. Resist non-discrimination rules.  Once we achieved those advances, Plan B was to punch holes in the gains with religious exemptions.  Plan C is now to foster transphobia.  In the states at the moment, we see that with an effort to pit rights for transgender people against girls and women, often in sports.

No change will stick without cultural change.  The LGBT movement worked hard to humanize gay and lesbian couples before pressing big court cases (even learning that the most compelling spokesperson was a parent talk).  We worked hard to highlight the humanity of transgender people before the court issued its decision this term, with Laverne Cox and my colleague Chase Strangio leading the way.  (As one example, I highly recommend a video of celebrities reading a letter of Aimee Stephens to her employer when she came out.  Aimee’s case – against her employer for firing her for being transgender – went to the Supreme Court.)

And then you just can’t give up.  You just can’t.

 

Q: Controversy is central to a robust democracy.  If we begin to let the government censor our views to make it more comfortable or less controversial, we set ourselves on a destructive path.  When President Trump, used derogatory  and demeaning comments about women, protest photos and statements were removed or blurred.  When the state machinery supports the stifling of freedom of expression and the right to protest, what can we do to make our voices heard and hold the powerful to account?

A: I’m answering this on the Saturday on which John Lewis died.  I would say, we can read his words or those of other leaders who never gave up, and keep on protesting and speaking out and summoning others with our words and actions to join.

 

Q: The constant debate on a woman’s right to choose vs. the Right of the unborn foetus in the area of Abortion Laws, has been a long journey both for the Courts and ACLU.  There are differing opinions when it comes to the Court of Appeals and the Supreme Court; how do we as change makers bring about consistency in this process at all levels and influence the courts on these important issues?

A: You only want consistency if the good result is the one that will prevail.   Consistency among all the courts right now would require a decision or more decisions by the Supreme Court; it is only that court that can establish the law for the nation.  But it is best not to run to that Court now on issues of abortion.

Activists can work to build public support for the issue that is in court – even before there is any litigation.  It’s simply easier for the courts if they aren’t being asked to be too far ahead of the public.  And a decision is more likely to stick, and do the work we want, if the public momentum is moving toward increased support for the right.

 

Q: What do you consider to be your greatest achievement and your biggest failure or regret throughout your career?

A: I played a key role in getting the human rights community to see the harms of religious refusals (the calls for a right to refuse to comply with an anti-discrimination mandate), to recognize their implications across movements,  to mobilize to oppose them, and to develop ways to communicate their harms, including calling them out as demands for a license to discriminate.  The work we did, beginning in 2010, before the issue was hot, laid the groundwork so we were ready when the issue percolated and able to achieve some significant and early wins.

I also am tremendously proud of a case I won in New Mexico, where the State Supreme Court held that the state constitution required the state had to cover abortions under its Medicaid program.  (Medicaid is a government insurance program for low income people.  The decision rested on the state equal rights amendment, which means that the court understood the connection between access to abortion and gender equity, and it has made a real difference to the lives of so many in that state.

I am almost sixty.  I worked in the ACLU’s reproductive freedom project for eighteen years.  I worry that I might end my career with the right to an abortion in a worse place than when I began my career.  It is deeply troubling.  It’s troubling because of what that says about how my country thinks about gender justice.  And it’s troubling because of how hard people’s lives continue to be, if we struggle over the right of something so fundamental as whether or not to have a child.

 

Q: Finally, what advice do you have for human rights students about to start out on their careers?

A: Keep a sense of humor to help carry you through challenging times and to celebrate the wins.  Keep your eye on the long-term goal.  Listen.  I have learned so much, and have so much yet to learn, from my colleagues.  And find joy, always.

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.

Freedom of expression and sexual orientation: Textualist Singapore vs expansionist India

by Kartikeya Jaiswal and Pranay Modi 

This article was originally posted on Rightsblog.net

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-Generalanswered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative.

 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution– which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’ and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”.

India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution.

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals – had held that Article 19(1)(a) guarantees not just speech, but also the “natural rights inherent in the status of the citizens of a free country”.

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

 

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality.

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition.

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

 

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

 

ABOUT THE AUTHORS

Kartikeya Jaiswal studied law at Jindal Global Law School in New Delhi, and graduated in August 2019.  He is now advocate practising law in new Delhi.

 

 

Pranay Modi studied law at Jindal Global Law School in New Delhi, and after graduating is now a Research Fellow at Vidhi Centre for Legal Policy, New Delhi. 

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.

 

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.

 

Black Lives Matter: from global to local – diary of a first-time activist

by Sophie Kabangu

The tragic death of George Floyd had a massive impact on global activism. People all over the world started protesting against police brutality.  Watching it unfold on the news, I realised that there was something different about this protest compared to others I had seen on TV.  I had never been to a protest but was very aware of their importance; protests are the reason we have civil rights, 8-hour workdays, ‘Pride’ and rights for women.

One protest that had a huge impact was the March on Washington in August 1963. At that rally, Martin Luther King delivered the historic “I have a dream” speech,  to promote racial equality in the United States.  It has been recorded that more than 200,000 people attended.  As result of this, President John F. Kennedy introduced the Civil Rights Bill in 1964.  Another powerful protest that had a huge impact on the world was the demonstration to bring down the Berlin Wall.  People throughout Germany protested, mainly peacefully, for two months in 1989.  The security forces were outnumbered by protesters and eventually the wall came down. Throughout history, peaceful and non-peaceful protests have led to change.

March on Washington 1963

As Black Lives Matter protests broke out globally, I felt inspired.  Due to covid19, I was not willing to travel to London to join the protests and I felt that simply sharing Instagram posts was not enough.  My friends were supportive of my idea to have our own small peaceful protest in Colchester.  A graphic design student at Norwich University of the Arts (NUA) created the first of many posters and ‘Black Lives Matter Colchester’ went live in the evening of May 31^st.  By Monday morning, 1^st June, 60 people had clicked that they would be attending my event.

I had many messages from people asking if they could help in anyway.  A Learning and Partnership Manager, working in Nigeria for a UK-based education NGO called Street Child, contacted me through Facebook and was more than happy to help.  He made me aware that the police had to be informed of the event and taught me how to respond to questions professionally.

As it was my first time organising a peaceful protest, I was extremely apprehensive and underestimated the incredible response, on one day spending 14 hours responding to enquiries!  Due to Covid 19 and the lockdown, I was fully aware of the risk to myself and others and predicted that people might not support the decision to protest during a global pandemic.  Despite this, I persisted because I had chosen to stay silent many times before, but I now understand the importance of standing up and at least trying to make a difference in the world.  My number one concern was ensuring that everyone was safe; masks, gloves and hand sanitiser were all essential. I also made it very clear that social distancing would be enforced.   I created a PayPal Account for donations and within the first hour we raised £300 and over the course of the week £2000.  The funds were used to buy PPE and other equipment for the protest such as megaphones and water, with the remainder being donated to ‘Black Lives Matter UK’.

Black Lives Matter Protest Colchester Castle Park 7 June 2020

The original plan for the peaceful protest was to march through Colchester town centre and then have speeches in Castle Park.  However, due to the number of people that said they would be attending, I quickly realised that marching would not be safe and social distancing could not be enforced, so instead we all met in Castle Park.  I led the speeches, followed by other students from the University of Essex, NHS nurses and young black teenagers.   We also chanted in solidarity; “No Justice, No Peace”, “Black Lives Matter” and “Justice for Belly” (In reference to the death of rail worker, Belly Mujinga, from COVID-19 after a ‘spitting attack’).  It was estimated that at least 1400 people attended.

During the days leading up to the protest, I was frequently asked why I felt the need to protest over a murder that happened in the United States.  I went on BBC Essex Radio and was asked if racism happens in Essex specifically.  What many white, British people fail to realise is that racism still happens in the UK and it is ingrained within British culture.  Some British people believe that racism is only a problem in the US.  There are calls for the UK to decolonize its curriculum and not focus solely on a white-washed history of Kings, Queens and wars won.  Racism in the UK is Systemic.

Black Lives Matter Protest Colchester Castle Park 7 June 2020

The UK is not innocent when it comes to issues involving black people; Mark Duggan was shot and killed by police in 2011 and this is just one case where the UK has failed the black community.  In my view, the fact that the statue of slave trader Edward Colston was still standing in 2020 is outrageous.  There are debates about whether or not these statues should be removed, but I struggle to understand why the topic is up for discussion. The fact that there are other statues of slave traders still standing in the UK speaks volumes.

These protests were not just for George Floyd.  People all over the world are demanding change; the way the system works has to change, systematic racism must end, microaggressions must stop, the British education system needs to change.   It is no longer enough to share posts on Instagram and Twitter.  It is time to speak up and be heard.  When teachers and lecturers think its acceptable to use the ‘n-word’ when reading literature and when harmful stereotypes are incited by the media, ‘performative allyship’ such as posting a black square on Instagram, is not enough.  It is important that people sign petitions, donate, write and protest.  It’s important to recognise that this all adds up.  To be silent is to ignore your privilege and stand with the oppressor.

 

ABOUT THE AUTHOR

Sophie Kabangu studies Sociology with Human Rights at the University of Essex.  She is an activist, and has spent the last year working on a campaign with Amnesty International to help homeless people in Colchester.

 

 

#BlackLivesMatter: Demanding justice and change

by Janaya Bates

“The history of the American Negro is the history of this strife—this longing to attain self-conscious manhood, to merge his double self into a better and truer self.  In this merging he wishes neither of the older selves to be lost.  He does not wish to Africanize America, for America has too much to teach the world and Africa.  He would not bleach his Negro blood in a flood of white Americanism, for he knows that Negro blood has a message for the world. He simply wishes to make it possible for a man to be both a Negro and an American without being cursed and spit upon by his fellows, without having the doors of opportunity closed roughly in his face” (William Edward Burghardt Du Bois, The Souls of Black Folk: Essays and Sketches (1909))

“All Lives Matter!” is a phrase that many white Americans use in response to the voices yelling “Black Lives Matter!”.   Before we dive into this conversation, it is best to explain the origin of how this movement began.  #BlackLivesMatter began as an online social movement back in 2013 in response to the acquittal of Trayvon Martin’s murderer, George Zimmerman. Trayvon Martin was an unarmed 17 year old Black child who was shot and killed by a man who felt threatened by his ‘blackness’.  His killer was tried and acquitted of all charges.  According to the #BlackLivesMatter website;

“#BlackLivesMatter was…created to help combat anti-Black racism across the globe and would later form into an organization used as a contributing voice for Black folks and allies to support changing the material conditions for Black people.”

So, what is the difference between ‘All Lives Matter’ and ‘Black Lives Matter’?  By saying that all lives matter, it implies an inclusivity that does not exist.  I agree that all lives do matter but the problem people fail to understand is that Black lives don’t matter enough, or at all, to ‘White America’.  Until we as a society can agree that Black lives matter, we cannot say that ALL lives matter because it has not been shown in this country to be so.

Black people in America have been fighting to be seen and given justice in this country for too long.  We make up about 13% of the US population, yet we make up about 33% of the prison population in this country.   We are shot first and questioned later.  There should not be a ‘white’ America and a Black America. There should simply be an ‘America’ where everyone feels like they have a fair chance at life and opportunities.  The fact that we have a so-called leader in the White House who seems not to care about the racial injustices in our country shows that we have a long way to go in terms of progression.

I remember watching the news about Trayvon Martin’s case and feeling heartbroken for his family because there was no justice for Trayvon and no justification for his senseless killing.  I was even more outraged the following year when his murderer, George Zimmerman, was cleared of all charges.  Being Black in America means facing the terrifying prospect that a white person can shoot and/or kill you without consequence. I never would have thought that there would be several other cases similar to that of Trayvon Martin, but sadly I was mistaken. Since the murder of Trayvon Martin, names such as Sandra Bland, Michael Brown, Tamar Rice, Alton Sterling, Freddie Gray, Eric Garner and many, many more have become known throughout the country due to their senseless deaths at the hands of police officers and they remain without justice.

For more many centuries, Black people have been fighting for freedoms and equality in America. Blacks have fought back against slavery, Black codes and Jim Crow laws, policing, modern day slavery in the form of mass incarceration (also known as The New Jim Crow), some of the highest unemployment rates, consistent homelessness, dying while giving birth, and being murdered for being trans or non-binary.  Still in the year 2020, we continue to fight for our freedoms in a ‘White America’.

In these current times, we are protesting over the death of George Floyd, an innocent Black male, killed by a police officer who placed his knee on the neck of Mr. Floyd for almost 9 minutes all while he pleaded to breathe. This incident inspired many protests around the world, demanding justice for George Floyd as well as for the many Black people in this country, and elsewhere, who are killed every year by unnecessary police brutality.

Growing up in America as a young Black woman, I have always been aware of the injustices that Black males face in this country. Selfishly, I assumed that being female would exclude me from the worries that Black men face every day when interacting with police officers or white people. I was mistaken.  Names like Sandra Bland, Breonna Taylor, Atatiana Jefferson, Pamela Turner, Shantel Davis and Korryn Gaines are just some examples of Black women in America killed by police officers.

#SayHerName is another movement that was launched in December 2014 by the African American Policy Forum (AAPF) and Center for Intersectionality and Social Policy Studies (CISPS). This campaign aims to bring awareness to the names and stories of Black women and girls who have been victimized by racist police violence, and to provide support to their families.  So the question remains, how many more innocent Black lives will have to be taken before we can see a change in this country? And could I be next?

 

ABOUT THE AUTHOR

Janaya Bates is from Oxnard, 1 hour from Los Angeles, California.  She attended California State University, and obtained a BA in Sociology with a focus in criminology and social welfare in 2013.   She attended the University of Essex and obtained an MA in Human Rights and Cultural Diversity in 2019.  She has a passion for social justice, advocacy and prison reform and hopes to develop a fulfilling career in civil and human rights.

International Human Rights News Special: Black Lives Matter

A message from Dr Andrew Fagan, Director of the Human Rights Centre

George Floyd, a 46-year old African American, died on May 25^th after having been pinned to the ground by a Minnesotan police officer.  The officer, Derek Chauvin, restrained Mr Floyd by kneeling on his neck for some nine minutes, despite his repeated cries for help.  George Floyd’s last words were, “I can’t breathe”.  Chauvin has now been charged with second degree murder.

The terrible death of George Floyd occurred amidst two pandemics: Covid-19 and what I have referred to elsewhere as the “pandemic of discontent”. One of the principal symptoms of the pandemic of discontent is right-wing populism. Right-wing populists have secured power in some of the oldest liberal democracies on earth by appealing to the fear, pain, and downright hatred of significant numbers of voters who, it appears, have lost whatever faith they may have once had in liberal democracy. While not all supporters of right-wing populism are necessarily racists and xenophobes, there is no doubt that the support of racists and xenophobes is essential to right-wing populists securing power.

As horrendous as this fact is, the death of African Americans at the hands of law enforcement officers in the US is not that unusual. However, the killing of George Floyd has been met by a massive and growing popular movement against racism and xenophobia. Notwithstanding the violence and looting of some ‘protesters’, people across the western world, of many races, ethnicities and religious persuasions are mobilising against racism and xenophobia.  In so doing, they are also mobilising in support of human rights and against those forces who have been systematically seeking to erode the rights of those who are most in need of their protection. People power constitutes, ironically perhaps, one of the strongest forces in the human rights community’s struggle against the politics of racist hate.  We are witnessing this as people take to the streets and to social media to express their outrage at our societies’ lack of resolve to effectively combat racism and xenophobia.

It is too early to confidently predict if the killing of George Floyd will mark a genuinely transformative moment in the continuing struggle against racism. To a certain extent, this will depend on the continuing commitment of all of us engaged in this struggle and the peaceful protests and actions of many outraged people.

As the current Director of the globally renowned Human Rights Centre, I can assure everyone that we will redouble our efforts to combat ongoing racism in our midst. This special edition of our blog marks an early and important step in that campaign.

 

Trump’s militarised response to peaceful protests

by Bethany Webb-Strong

In recent days, the US has drawn eyes from across the globe and the world has witnessed the spread of violence inflamed by US President Donald Trump’s heavy-handed, militarised response to the Black Lives Matter protests.  Police have been authorised to use riot gear and military-grade weapons which risks escalating violence.  As Rachel Ward, National Director of Research at Amnesty International USA has asserted, “US police across the country are failing their obligations under international law to respect and facilitate the right to peaceful protest”. Amnesty International have demanded that US police officers are held accountable for the use of deadly force.

Moreover, Trump’s threat to use the Insurrection Act 1807 to allow deployment of active duty troops on the streets of US cities has been directly opposed by the US defence secretary, Mark Esper.  Trump’s response to the protests has caused an outcry amongst retired generals; the former US Defence Secretary, James Mattis, has publicly opposed the inappropriate wielding of the military against US citizens.

Earlier this week, Trump’s tweet was hidden by Twitter moderators because it violated Twitter’s policy on material that ‘glorifies violence’.  The US President warned; “when the looting starts, the shooting starts”, a phrase coined, in 1967, by Miami Police Chief Walter Headley,  who was notorious for violent policing policies in predominantly black districts. Trump later threatened to ‘shut down’ Twitter, signing an executive order that targets social media platforms, complaining that Twitter was ‘stifling free speech’.  Can the US respond effectively to the demands of Black Lives Matter protestors whilst they are led by a President who divides politicians, prioritises property rights over black lives and revels in an oppressive militarised response to peaceful protests?

Michael Breen, President and CEO of Human Rights First gets to the heart of the matter, declaring that “African American people have survived human rights abuse for four hundred years. It is long past time for that systematic targeting to stop”.

 

The ‘shaky foundations’ of the United States should be taught in schools

by Pauline Canham

Spike Lee

While the arts and movie industries have joined the chorus of outrage at the death of George Floyd, predominantly via social media, none have managed to put the issue quite as eloquently as Oscar-winning film-maker, Spike Lee.  What was notable about Lee’s brief interview with BBC Arts correspondent, Will Gompertz, was that he went where others have traditionally feared to tread, and spoke of the “shaky foundations” of the United States, built on “genocide… and slavery”.  He talked about his own family’s experience of slavery and the system of settler colonialism that created modern America, through the theft of the land from the indigenous people.  “Any architect will tell you that if you don’t have a strong foundation, the building’s going to be shaky… from day one.”

Some have also drawn parallels between current events and the events that followed the death of another black man during what became known as the Boston Massacre in 1770.  Crispus Attucks, a man of African and native-American descent was shot while marching in protest at British settler oppression, sparking anti-British sentiment which fed into the war of independence.

Boston Massacre 1770

Such events are little known, particularly among the younger generation, and there are calls for the true history of the United States and the colonial history of Britain and Europe to be taught in schools in an effort to educate young people about the roots of structural and ingrained racism.  Across the UK, there are movements pushing to de-colonize the curriculum in schools and universities and bring a more balanced approach to the teaching of history.

In Chicago, a new project is bringing the real history of America to students, “without it being whitewashed”.   The ‘1619 Project’, created by the New York Times Magazine, is being taught in Chicago Public schools and “links black kids with their ancestors’ struggle and perseverance” while helping “white people understand that their idealised version of America doesn’t exist.”

 

‘The Double Pandemic’: Black Lives Matter Beyond Borders

by Alana Meier

In cities around the world, demonstrations of solidarity have erupted in unity with the ongoing protests in the United States and in condemnation at President Donald Trump’s military response and threats of violence.  Whether it be through in-person protests, such as the thousands that marched in London on 6th June, or #BlackLivesMatter social media proclamations, people are demanding an end to police brutality and systemic racism both in America and in their respective countries.

Though the backdrop of the COVID-19 lockdown and social distancing measures has certainly brought about tensions – in Amsterdam the mayor was highly criticized for allowing thousands to gather without proper enforcement of health orders, while across Australia protests went ahead when a court-imposed ban was overturned at the last minute – the pandemic may actually have been a vital precursor to the strength and magnitude of the global response.

In a recent interview Black Lives Matter co-founder, Opal Tometi expressed this belief, explaining how the pandemic has brought about a ‘deeply personal’ period, marked by feelings of grief, concern, and despair, which has combined with people having extra time “to think about why they have been struggling so much” and “make [their] concerns heard.”  Coronavirus has laid bare the gross inequalities that were already there and given people the time to decide what they want to do about it.

As American writer Roxane Gays states, “Eventually doctors will find a coronavirus vaccine, but black people will continue to wait for a cure for racism.” For 2020 to become the turning point some believe it to be, we must also take constructive action to fight the ‘pandemic of racism’ which is not unique to America.

 

Police Brutality and the right to protest

by Amita Dhiman

The Black Lives Matter protests are evidence of ongoing rights violations in the country that calls itself the ‘land of the free’.  When protesters peacefully assembled in Minneapolis, to demonstrate against the police brutality that led to the death of George Floyd – one in a long line of black people killed at the hands of the police – they were arrested and attacked by officials for raising placards and marching around the city. Later, some protestors resorted to  destroying and looting stores which led to the Mayor declaring a state of emergency in Minneapolis.  With the increased deployment of police around the city, excessive force was used against those protesting, violating domestic and international law.

The first amendment of the US Constitution and article 19 and 21 of the International Covenant on Civil and Political Rights, to which the US is a party, protects the rights to free expression and peaceful assembly. The covenant applies at all levels of government i.e. federal, state, and local governments.  Further, under the United Nations Basic Principles on the Use of Force and Firearms, “Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force”.  The use of unnecessary and disproportionate force by law enforcement officers, including indiscriminate and improper use of non-lethal means such as rubber bullets and flash band grenades has cast a shadow over the image of US Law Enforcement around the world.   The U.N. High Commissioner said ‘‘Structural racism and police violence are of course found across the world’’ and that measures are needed to break the cycle of impunity.  Though there have been a few instances where police officers have knelt or walked with protestors, systemic racism and the excessive use of force by police are far from being brought to an end.

 

Resources – how can you help?

• How to support black lives in the UK
• https://blacklivesmatters.carrd.co/ – educate
• About Race podcast
• University of Essex Anti-racist reading group
• Hope not hate
• STAR network – further resources

 

International Human Rights News: Weekly Roundup

By Alana Meier and Pauline Canham

This week, we focus on the two stories dominating the news; the events in the US following the murder of George Floyd, and the ongoing human rights impact of the COVID-19 pandemic.

In Focus: The Killing of George Floyd, and the Black Lives Matter Protests

The murder of 46 year old George Floyd on 25^th May at the hands, or more accurately, the knee of a white Minneapolis Police Officer, sparked protests across the United States and re-ignited the Black Lives Matter movement around the world.   UN Secretary General, Antonio Guterres, expressed his ‘heartbreak’ at the violence, in a tweet, in which he called for protests to be made ‘peacefully’ and urged ‘restraint’ on the part of law enforcement.

UN High Commissioner for Human Rights, Michelle Bachelet, called on the United States to “take serious action” to ensure justice is done and prevent further killings.  She also welcomed the investigation announced by US Federal authorities but also called for an examination into the role of “entrenched and pervasive racial discrimination in such deaths”.

Nicole Austin-Hilery, US Program Director at Human Rights Watch joined calls for a deeper probe, indicating that the murder of George Floyd and others at the hands of white police officers is simply the ‘tip of the iceberg of structural racism’.

“The anger and frustration driving mass protests across the US is about more than the criminal actions of the police officers who killed George Floyd.  It is about a law enforcement system that does not value all people equally and sacrifices the lives and well-being of black people as a result.”

Far from dealing with the root causes of the uprising, the response from the US government, and President Trump in particular, has been heavily criticised as ‘fanning the flames’ of violence and unrest through authoritarian rhetoric, converted into strong-arm tactics on the ground.  Trump’s handling of the crisis has also handed China the opportunity to expose the hypocrisy of the United States approach towards human rights and democracy.  China’s state media has been running stories stressing American double-standards, contrasting the hard-line policing of US protests to Pompeo’s stance on the protests in Hong Kong.

Internationally, people around the world have been gathering to show their solidarity by raising their voices and their placards, not only in protest at the US authorities, but also towards their own governments.  In Australia, 430 indigenous people have lost their lives while in police custody since 1991.  Concern is meanwhile growing as protestors gather in huge numbers, ignoring social distancing measures, risking a further spike in coronavirus cases across the US in particular.

In the UK, the Liverpool Football Team demonstrated their support in an echo of the 2016 protest by San Francisco 49ers quarterback, Colin Kaepernick, by ‘taking the knee’ and later posting a photograph alongside the caption “Unity is strength #BlackLivesMatter”

If you feel moved to support the Black Lives Matter movement, there are a number of ways to do so, both internationally and locally through fundraising and petitions as well as through some organised events, whilst of course maintaining social distancing at all times.

 

COVID-19 as the Inequality Exposer not the ‘Great Equalizer’

As the pandemic continues, it becomes increasingly clear the coronavirus is not the ‘great equalizer’ some have made it out to be. Instead, the actions and omissions of leaders tasked with fighting COVID-19 continue to impact people differently as they both highlight and compound with pervasive existing inequalities.

Global Disparities Exacerbated

This is occurring at the international level, as vulnerable populations’ reliance on international aid has only intensified. The World Food Programme has estimated that an additional 10 million people across Latin America and the Caribbean will experience food insecurity as South America becomes a ‘new epicentre’ of the pandemic. A new analysis by Save the Children and UNICEF indicates the pandemic fallout could push 86 million more children into household poverty, nearly two-thirds of which live in sub-Saharan Africa and South Asia.

 

Unchecked Discrimination risks Human Rights Violations

In addition to overshadowing other ongoing issues threatening health rights- like the growing number of Zika virus cases in Brazil putting women and children at risk; the disruption of services that prevent and treat cancer and other non-communicable diseases; and the increasing insecurity and violence faced by millions of European women and girls – officials in some countries are also manipulating the Covid-19 pandemic to justify further discrimination and regressively suspend services.

In Myanmar Burmese authorities are using Covid-19 response measures as a pretext to harass and extort internally displaced Rohingyas who are dependent on foreign aid and supplies while trapped within an oppressive system that has essentially incarcerated the population in overcrowded detention camps

In the US states such as Texas, Oklahoma, Alabama, Iowa, Ohio, Arkansas, Louisiana and Tennessee are using emergency orders to suspend or limit access to abortion care, through regulations that the American Medical Association describe as ‘exploiting’ the present moment. The UN Working Group on Discrimination against Women and Girls issued a statement expressing concern that these discriminatory bans are violating women’s reproductive health rights. UN experts also raised concerns that these are not isolated incidences but rather a trend, referencing a USAID letter sent to the UN Secretary-General 18 May in which the US insisted on removing references to ‘sexual and reproductive health and its derivatives’ from the Global Humanitarian Response Plan (HRP) on COVID-19. The Working Group Vice-Chair, Elizabeth Broderick, voiced these and will have devastating consequences for the economic, physical, and mental health of women worldwide.

In each of these cases systemic inequalities are not being created but exacerbated. These historically and presently marginalised communities are deserving of special care and attention now amidst the ongoing crisis, as well as within recovery plans and beyond. At a recent high-level event on financing for development, UN Secretary-General António Guterres proclaimed that to avoid ‘unimaginable devastation and suffering around the world’ we must respond with unity and solidarity. He upheld that in our interconnected world, “All our efforts must go towards building sustainable and resilient pathways that enable us not only to beat COVID-19, but to tackle the climate crisis, reduce inequality and eradicate poverty and hunger.”

 

Other stories making the news around the world

International

• UN Chief reminds countries of their obligation to protect migrants in fighting the pandemic (UN News)

 

Africa

• World Health Organisation to support DR Congo as Ebola resurfaces (UN News)
• Landmines left behind in Libya endanger lives (Human Rights Watch)
• Renewal of the arms embargo in South Sudan is a welcome move to protect lives (Amnesty International)

 

Middle East

• UN Secretary General requests funding to meet the staggering humanitarian crisis in Yemen (UN News)
• Iran calls on the US to stop violence against its own people (Al Jazeera)

 

Asia

• UN High Commissioner for Human Rights, Michelle Bachelet, urges Asian countries to protect freedom of expression during the COVID19 crisis (UN News)
• No justice for Tiananmen emboldens abuses (Human Rights Watch)
• Journalists held in Russia over peaceful pickets (Human Rights Watch)
• Duterte’s congressional allies back counter-terrorism bill but opposition calls it ‘terrorism against democracy’ (Al Jazeera)

• Reforms to tackle prison overcrowding in Cambodia ‘must put human rights at the core of drug policy’ (Amnesty International)

 

Europe

• Human Rights Watch call on the Council of Europe Committee of Ministers to direct Turkey to release human rights defender Osman Kavala (Human Rights Watch)
• Prison visits could resume in England and Wales in July (Guardian)
• Hungary outlaws changing gender on documents after birth (New York Times)

 

South America

• Police brutality in Brazil adds to suffering amid the pandemic (Human Rights Watch)
• Costa Rica became the first Central American country to allow same-sex marriage on May 26 (Human Rights Watch)

 

North America

• Trudeau evades calls for an apology for Canada’s history of slavery (Globe and Mail)
• President Trump tramples over the right to protest (Amnesty International)
• Assaults on journalists in the US covering the protests on a scale not seen before(Time)

 

International Human Rights News: Weekly Roundup

By Lauren Ng and Alana Meier

COVID-19 Update – The jury is out on Sweden’s approach

“You’re pushing your cases and deaths into the future – they are not disappearing.”  While lockdown measures have been implemented throughout the globe, Sweden has taken a different approach to the coronavirus.  Similarly to the UK’s initial strategy, the Nordic country refrained from employing a nation-wide lockdown and alternatively, opted to pursue the public health measure of herd immunity and social distancing.

Herd immunity is a form of protection which is achieved when the majority of a population becomes immune to a virus, either through a vaccine or exposure to the infection; thus, preventing further spread to the non-infected members of a group and stopping its lethality.  Part of Sweden’s model involves similar strategies to that of many countries, including banning gatherings with more than 50 people, advising citizens to social distance, closing educational institutions for individuals over-16 and isolating the vulnerable, for example prohibiting visits to nursing homes.  Yet, schools for children under 16 remain open, along with shops, factories and restaurants.

Sweden has pursued this policy on grounds that “draconian measures” were viewed as unsustainable for its economy, whereas voluntary restrictions would encourage compliance for a longer period and allow its citizens to preserve their right to liberty, preventing further stress on the safety and wellbeing of its population.  While measures promoting the protection of the economy could be argued as a violation of the right to health, Swedish leaders have urged countries to consider the wider implications of their policies using a “life versus life” approach – where the economy, security and social unrest are considered as much as part of the consequences to that of physical health.  However, more recently, analysts have predicted that Sweden is unlikely to emerge unscathed by the crisis, and is expected to find itself in a similar situation to that of most countries near the end of the pandemic, although its economy is currently less affected.

Furthermore, Sweden’s death rates per million are higher compared to its neighbours.  Still, their figures are notably lower than other countries where strict lockdowns have been enforced, for instance the UK and Italy.  Additionally, the deaths in Sweden have predominantly been attributed to the government’s delayed response in restricting care home visits, which accounted for a large proportion of its mortality rates.  Compared to its counterparts who currently sit at lower levels of immunity, such as France (4.4%) or the UK (5%), it is expected that Sweden will reach herd immunity by June.

Nevertheless, to achieve herd immunity, experts predict that at least 50% to 70% of the population would need to be exposed to the virus.  In countries with greater populations, the feasibility and moral dent of this strategy is less guaranteed, with opponents arguing that the healthcare system would rapidly be overburdened and at a significantly higher cost to the health of its citizens.  In addition, it is uncertain to what extent our immunity to coronavirus lasts.  Moreover, as with any population, Sweden’s demographic is unique.  First, many of its citizens live in single-occupancy households and normally keep a physical distance in their day-to-day activities in any case; thus, reducing the chance of infection spread.  Second, its government is not ministerial, meaning its constitution does not allow the government to easily dictate what its respective administrative agencies can do.  Therefore, the government is constrained in its ability to legally implement a more stringent approach.  Finally, the Swedish population has traditionally maintained a distinguished level of trust in its institution. 70% of Sweden’s general public support its policy.  Even in the absence of a lockdown mandate, its citizens principally upheld their collective obligations and adhered to their government’s recommendations.

As to whether this method remains the right one to have pursued, the verdict remains unclear.  Although countries with strict lockdowns will likely be more susceptible in the event of a second wave, if an effective vaccine is discovered soon enough, it will provide the same level of immunity to the population at a radically lower cost to peoples’ lives.  Thus far, the first human trials of a vaccine in the US have produced positive results in its first eight patients, with the UK taskforce not far behind in its progress.  While researchers are confident a vaccine will be ready within 18 months, the Chief Scientific Advisor has warned that, as with any new vaccines, these developments are long shots and the process “will take time”, with only some attempts resulting in success.

 

Spotlight on LGBTQ+ Rights in Honour of IDAHOBIT

In 1990 the World Health Organization removed homosexuality from its list of mental disorders recognising it as a natural variant of human sexuality. This landmark decision is honoured every May 17 with International Day Against Homophobia, Biphobia and Transphobia (IDAHOBIT).  Alongside celebrations of gender and sexual diversity taking place around the world such as the UN Free and Equal Campaign Video Release, this day offers a moment to reflect on both advances made and challenges remaining in LGBTQ+ rights.

 

With this year’s theme of “Breaking the Silence” Human Rights Watch presented a global report card on the status of LGBTQ+ rights. Yet, simply looking at this past week shows that while some countries make progress, others continue taking steps back. Ninety-six human rights and LGBT organizations signed and sent a letter to Japan’s prime minister demanding a law protecting against sexual and gender-based discrimination. Hungary passed new legislation banning the legal recognition of transgender and intersex people. Despite lawmakers around the world banning ‘conversion therapy,’ there is still concern over the success of purely punitive approaches. Protecting the advances made in human rights, is more important than ever amidst the COVID-19 crisis which has disproportionately impacted the rights of LGBTQ+ people.

 

Other stories making the news around the world

 

International

• Call to Action to Help Vulnerable Artisanal & Small-Scale Mining Communities (Human Rights Watch)

 

Africa

• SADC Leaders Meet to Discuss Urgent Opportunity to Assist Mozambique Civilians at Risk (Human Rights Watch)
• Arrest of Félicien Kabuga as Major Victory for Victims and Survivors of Rwandan Genocide (Al Jazeera)

 

Asia

• Nepal Laws Fail to Prevent Women and Girls from Growing Problem of Online Gender-Based-Violence (Human Rights Watch)
• Hong Kong Releases misleading IPCC report into Protests (Amnesty International)
• 25 Years After Tibetan Panchen Lama ‘Disappeared’ and China Battle for Religious Control Continues (Human Rights Watch)

 

South and South-east Asia

• Blogger Held over Land Dispute Report Raises Questions about Freedom of Speech in Indonesia (Human Rights Watch)
• Alarming Public Health Situation: Cambodia’s ‘War on Drugs’ Fuels Rising Human Rights Violations (Amnesty International)

 

Europe

• Open Letter Issued Urging France to End Discriminatory Police Stops and Fines (Human Rights Watch)
• France: Acquittal of Farmer who Helped Asylum Seekers Shows Acts of Solidarity should Not be Criminalized (Amnesty International)
• Must not Forget Vital Human Rights Issues in UK beyond the Pandemic (Human Rights Watch)

 

Middle East

• Families Protest Relatives gone Missing in Yemen’s Five-Year War (Al Jazeera)
• Kurdish Authorities in Iraq Suppress Protests over Unpaid Salaries (Human Rights Watch)

 

North America

• Memorandum of Understanding between Wet’suwet’en and Canada Marks Path Towards Negotiations on Aboriginal Title (Al Jazeera)
• Lawsuit Filed Against ‘Remain in Mexico’ Program seeking Answers about US Migrant Protection Protocols (Human Rights Watch)

 

Latin America

• Demonstrators in Chile Demanding Food and Medical Aid Clash with Police (Al Jazeera)