Human Rights at Home Blog

Will Massachusetts Be the First?: Progress Toward Guaranteeing the Right to Counsel in Eviction Cases Statewide

On Wednesday, the Chief Justice of the Massachusetts Supreme Judicial Court, Ralph Gants, endorsed a right to counsel in eviction cases in his State of the Judiciary speech. As Chief Justice Gants stated: "....where so much is at stake, it is no surprise that there are various efforts across the country to broaden access to counsel in eviction cases."  But, he continued, "if we are committed to residential stability, to reduce the number of evictions, and to avoid homelessness, we must do more than provide legal counsel."  

 

The pending bills endorsed by Chief Justice Gants are H.1537/S.913/H.3456.   They would guarantee a right to legal counsel to all indigent parties — landlords or tenants — in eviction cases, similar to the right guaranteed in criminal cases. 

 

Advocates in Massachusetts aim to ensure that it is the first state in the country to provide a right to counsel in eviction cases statewide.  Still, building on Chief Justice Gants' recognition of the inadequacy of counsel alone, the Massachusetts Right to Counsel Coalition is preparing to submit a draft bill to the state's Judiciary Committee that provides for both a right to counsel and recognizes the need to provide housing stabilization support and assistance before an eviction is filed. 

 

Considerable human rights advocacy has supported the domestic efforts to establish a right to counsel.  A thorough analysis was prepared in 2015 by policy students at the University of North Carolina Law School.   In 2017, the National Coalition for a Civil Right to Counsel and the Northeastern Law School Program on Human Rights and the Global Economy also submitted a human rights analysis of the issue to the UN Special Rapporteur on Extreme Poverty in the context of his visit to the US.

Massacre on Black Wall Street

Tulsa Oklahoma was home to Black Wall Street, an area of Tulsa where black businesses thrived and where their owners lived.  As a recent article described "Greenwood Avenue had been lined with hotels, restaurants, furriers, and even an early taxi service using a Ford Model T. Nearly 200 businesses populated the 35-square-block district in all, as did some homes as stately as the ones owned by upper-class whites in the city."  Described as the "epicenter of African American entrepreneurship and wealth in the early 20th century."

That was, until May 31 and June 1, 1921.  That is when Tulsa whites invaded Black Wall Street, burning it down and killing many residents.  Between 100 and 300 are estimated to have died.  Approximately 10,000 black people were left homeless, and property damage was $32 million in today's money.   Tulsa was the largest massacre in US history.  Yet few were or are taught about this horrific part of our history.

Hopefully, that is about to change.  Several artists, including Oprah, are working on projects that will tell the story of mass destruction of people and their property.    Unknown is whether the story will be tamed down.  White people rioting and killing African Americans have not been the subject of a major movie.  It remains to be determined how many Americans will promote the movie and be willing to acknowledge the shame of the massacre. More importantly, US schools need to teach this part of our history in the raw and full context in which it occurred.  That would be a major breakthrough in acknowledging our past and the horrible acts perpetrated upon African Americans and other minorities.

Blog to Blog: Report from the Oxford HR Hub's Traveling Fellow

The Oxford Human Rights Hub's Traveling Fellow, Abby Buttle, has arrived in South Africa, and her first posting is of interest to US human rights lawyers.  Buttle began her fellowship by observing an oral argument in a case challenging the right of undocumented students to a basic education.  In the US, this issue is front and center as undocumented children stay home from school in reaction to aggressive immigration enforcement and due to fear of deportation, despite the U.S. Supreme Court precedent -- Plyler v. Doe -- stating that they cannot be denied basic education.  In fact, keeping these children from learning despite their constitutional protection seems to be an official administration policy.

In South Africa, the litigation challenging the government's efforts to eject undocumented children from school turned in part on international law, including the Convention on the Rights of the Child.  196 countries have ratified that Convention, which turns 30 this year -- on November 20 to be exact.  The United States is the only country in the world that has NOT ratified it.

Will the terms of the CRC dictate the outcome in the South African case? Probably not directly, as courts will look for domestic precedents.  

Would ratification of the CRC itself shift US policy?  Again, it's not likely, particularly if the Administration has already shown its willingness to step around Supreme Court precedent to keep undocumented learners out of the classroom. 

But with treaty ratification, South African litigators and advocates can leverage the touchstone of the CRC to seek a more humane interpretation of domestic law. 

And without treaty ratification after 30 years, the US can continue to turn away from the human rights involved when kids are denied schooling, taken from their families, put in cages, and so on.

Law Professors Pledge to Encourage Environmentally Sound Practices

From Prof. Stacie Strong, University of Missouri of Missouri School of Law

 

In honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools.  Most of this material is discarded without ever being read.  However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.

 

Continuing this practice is unconscionable in the current era, given the availability of electronic marketing options.  Limiting or eliminating reliance on paper-based materials will not only reduce the destruction of forests, it will also reduce carbon emissions generated as part of the printing and transportation processes.

 

Given the competitive nature of higher education, it is unlikely that individual law schools will act on their own initiative to stop or significantly curtail paper-based marketing for fear of risking their rankings.  However, positive results may be obtained by coordinating actions across numerous law schools. 

 

Individual faculty members as well as law schools both inside and outside the United States are therefore invited to join the Pledge to Reduce Academic Marketing Waste by emailing Prof. S.I. Strong ([email protected]) to indicate their support.  The names of individual law professors and institutions who have adopted the Pledge will be published on a webpage housed at Pace University.  That webpage is regularly updated to show increased support for this initiative.

 

The language of the Pledge is as follows:

 

We, the undersigned, hereby pledge to reduce academic marketing waste, individually and institutionally, by limiting or eliminating the production and transmission of paper-based marketing materials and/or by encouraging the relevant decision makers at our institutions to adopt actions and polices consistent with that goal.  Reducing academic marketing waste can take a variety of forms, including but not limited to:  (1) reducing the size of paper-based marketing materials (eg, replacing newsletters with postcards); (2) reducing the frequency of paper-based marketing initiatives; (3) adopting an opt-in rather than opt-out approach to paper-based mailing initiatives; (4) replacing some or all paper-based marketing with electronic or other forms of marketing. 

 

Please feel free to forward this message to anyone at your institution or in your network who you think might be interested in joining the Pledge.  The current signatories can be seen here -

https://law.pace.edu/academics/juris-doctor-program/environmental-law-program/pledge-reduce%C2%A0academic-marketing-waste - with more are being added all the time.

Kirschner Memorial Human Rights Lecture, November 7

This year's Kirschner Human Rights Lecture, sponsored by the Pozen Center, University of Chicago, will be delivered by Albert Woodfox, on November 7, 2019.  This annual lecture honors the life and work of Robert H. Kirschner, MD, noted forensic pathologist and a founder of the University of Chicago Human Rights Program.

Albert Woodfox is a former political prisoner and human rights advocate who served 43 years in solitary confinement for a crime he didn't commit. His sentence, served in a 6-by-9-foot cell at Louisiana’s Angola Prison, is the longest solitary confinement ever endured in the United States. After decades of activism and many legal appeals, Woodfox was released from prison in February 2016. He speaks to audiences worldwide about the inhumanity of solitary confinement. Woodfox will discuss his advocacy and new memoir, Solitary: Unbroken by Four Decades in Solitary Confinement. My Story of Transformation and Hope, which was recently named a finalist for the National Book Award.

More information and registration is available here.  Pre-registration is recommended.

Symposium on Contemporary Counter-Terrorism Issues

All are invited to join the University of Minnesota Human Rights Center, in person or online, for a Symposium on Contemporary Counter-Terrorism Issues, at the University of Minnesota Law School, Monday, November 4th from 8:30am-5:30pm (Central).

 

UN Special Rapporteur on counter-terrorism and human rights, Prof. Fionnuala Ní Aoláin, will be the key note speaker and four expert panels will discuss pressing issues related to gender, foreign fighters, and returnees; (de)radicalization; civil liberties, the right to privacy, and freedom of speech on the internet; and transnational issues including state cooperation practices. See the full program for the list of speakers.  For more info, and to register, click below:

 

Register to attend

 

Register for the webcast

All Hands on Deck!: Scholars and the Human Right to a Healthy Environment

At the Raoul Wallenberg Institute last week, two dozen scholars from around the world met to contemplate "Human Rights in the Anthropocene."  Former UN Special Rapporteur on Human Rights and the Environment, John H. Knox set the stage with a keynote presentation noting the challenges to establishing a universal human right to a healthy environment despite widespread recognition of the right at the national constitutional level.  Other speakers critiqued anthro-centric approaches to environmental law, explored environmental rights litigation, reviewed related areas of law such as international trade, made the human rights case against climate change deniers, and explored ways to support local government's implementation efforts.

But while papers were shared and debated, this was not a usual academic gathering.  Rather, RWI, Frank Baber, and other attendees, came together to explore more fully how academics can support environmental human rights advocacy at this "all hands on deck" moment.  A shared sense of purpose and resolve brought the group together not just to theorize, but to problem-solve.

All in attendance noted the special role of academics in developing new theoretical approaches.  One example is the development of the public trust doctrine that undergirds the Juliana litigation pending in the 9th Circuit Court of Appeals -- a doctrine expanded through the scholarly work of Professor Mary Wood.  Attendees also noted the role that law schools and law school clinics can play in developing legal theories through amicus brief work, filing comments with international bodies, and other mechanisms for input.  For example, at least seven of the amicus briefs filed in the Juliana case included legal academics and clinical programs as counsel.

Given the US government's current attacks on sound environmental policy, work with state and local governments had special resonance for US attendees.   Many cities are looking to the SDGs for guidance in developing sustainability plans, or seeking to challenge the federal government's efforts to restrict progressive environmental policies.  There is much work for academics to do in supporting local pro-environment, pro-human rights initiatives -- and local governments often welcome partnerships with local universities and colleges.

Finally, the scholars examined their own practices.  What are universities doing to incentivize scholarly engagement with environmental human rights through relevant academic work and assistance to policymakers and advocates?  And what are universities doing to minimize their own impacts?  An April 2019 report indicated that only about 15% of the universities that have made climate pledges are purchasing carbon offsets to counteract their emissions.  Beyond offsets, universities might also take steps to encourage alternatives to travel through virtual colloquia and meetings.

In sum, while the challenges are real and overwhelming, the sense of the gathering was that there are real, positive contributions that scholars can make, particularly if they leave their ivory towers and work more directly with advocates and policymakers.  For scholars, there should be no more staying below and out of the fray -- it's all hands on deck!

 

Stanford's National Public Interest Law Award

Each fall Stanford Law School's Levin Center for Public Service and Public Interest Law honors an attorney whose work has a national impact. 

This year's awardee is Yasmeen Hassan, who is the Global Executive Director of Equality Now, a human rights organization focused on legal equality for women and girls. Equality Now has offices in New York, London, Nairobi and Beirut and presences in Washington, DC, Tbilisi, Delhi, and Beijing. Ms. Hassan was with the United Nations Division for the Advancement of Women (2003-2008) where she worked on ensuring gender equality in laws of countries emerging from conflict and on the Secretary General’s study of violence against women. She practiced corporate law at Davis Polk & Wardwell in New York and California (1995-2003), and she clerked on the DC Court of Appeals (1994-1995).

For those interested in nominating someone for next year's award, here are the guidelines.  Nominations are due by March 1st of each year.

Law Professors Sign On To Chemerisnky Letter On Impeachment

Three hundred law professors signed on to a letter authored by Dean Erwin Chemerinsky of Berkeley School of Law.  

The letter is in response to White House Counsel Cippoline's misleading comments about the impeachment process.  Among those was a remark that the House of Representatives must vote to authorize an impeachment investigation before one may begin.  A backlash began immediately with lawyers demanding that Cippoline's letter be retracted.  Dean Chemerinsky felt it important that law professors weigh in.

The letter states in part:  “Quite the contrary, the Constitution does not mandate the process for impeachment and there is no constitutional requirement that the House of Representatives authorize an impeachment inquiry before one begins,” the law professors’ letter reads. “Cipollone wrongly condemns the impeachment inquiry as the House ‘seeking to overturn the result of the 2016 election.’ This fails to recognize the seriousness of the charges against President Trump for abusing executive power for personal political gain and violating federal election law.” 

To read the complete letter click here.

Courage and Compassion: Remembering Elijah Cummings

Human rights leader, Congressman Elijah Cummings, died on October 17th.  Congressman Cummings was the son of sharecroppers who never lost his compassion for the marginalized.  As a young boy, he was one of the children who attempted to swim in the Baltimore city pools.  He was spat on and attacked.  But the pools were integrated.  Mr. Cummings' courage was a hallmark of his character. His adherence to his principles was constant and unwavering.  

He credited watching Perry Mason with his decision to go to law school.  The Washington Post reported that Mr. Cummings witnessed many boys in his neighborhood being sent to reform school.  "Though I didn’t completely know what reform school was, I knew that Perry Mason won a lot of cases. I also thought that these young men probably needed lawyers.”

Mr. Cummings was fearless in condemning police brutality against young black me and gave the eulogy at Freddie Gray's funeral.  “I’ve often said, our children are the living messages we send to a future we will never see. But now our children are sending us to a future they will never see! There’s something wrong with that picture!”

And Mr. Cummings was the first to attempt to calm demonstrators when their actions led to violence in protest of Freddie's death.

 A great human being has passed.  His courage and humanity defined him as did his moral commitment to doing what is right.  No matter what our political allegiance, we must acknowledge that the sort of courage displayed by Mr. Cummings is rare, and now even rarer.

 

 

November Event on HR and Refugees/Asylum Seekers

Mark your calendars for the 2019 Physicians for Human Rights National Student Conference, November 15-17, 2019, at Harvard Medical School in Boston.  The conference title is Foreign Bodies: Fear of the (Un)Known, referencing PHR's extensive work on medical issues facing refugees and asylum seekers. 

More information about the conference and registration is available here.  Note that the conference will include a poster session, and poster and abstract submissions will be open through October 30.

Research-athon, Through October 31, 2019

The UN Special Rapporteur on Human Rights and the Environment, Dr. David Boyd, is hosting a "researchathon" this month.  And yes, he promises, there are prizes!!!  And even International Recognition!!!

Here's the info from Dr. Boyd and a link that you can follow to find the submission form :

"As the UN Special Rapporteur on human rights and the environment, I am preparing a report for the Human Rights Council on good practices in implementing the right to a safe, clean, healthy and sustainable environment. There are currently more than 150 UN member nations where this right enjoys some form of legal recognition at the national level—in the constitution, in legislation, or as a party to a legally binding regional treaty that explicitly includes the right to a healthy environment.

One of my goals for the report is to include at least one good practice from each of these 150+ nations. I am defining “good practice” broadly, as any law, policy, program, institution or other government measure that contributes to improved environmental protection.

The right to a safe, clean, healthy and sustainable environment includes procedural and substantive elements. Procedural elements include the right of access to environmental information, public participation in environmental impact assessments and other decision-making processes affecting the environment, and access to justice/effective remedies when a person’s rights are being violated or threatened. Substantive elements include clean air, clean water and adequate sanitation, healthy and sustainably produced food, a non-toxic environment in which to live, work, study and play, healthy ecosystems, and a safe climate. Related cross-cutting issues include gender equity, prioritizing vulnerable populations, protecting environmental human rights defenders, and imposing responsibilities on businesses.

This Google Sheet includes a list of the 150+ nations where the right to a healthy environment is recognized at the national level. Please select one nation, and place your name in the box beside it, committing to email me 1-3 good practices for that nation by October 31. My email address is [email protected]

Your email submission should include

1. Name of the country
2. Your name
3. Title of the good practice(s)
4. A concise 1-2 paragraph description of the good practice(s)
5. Any evidence that this good practice is contributing to improved environmental protection
6. From one to five references that describe the good practice or its effects

Every person who completes a submission will have their name recognized in the UN report and entered in a draw for five great prizes, including autographed books and gift certificates!

EXAMPLE: Good Practices in Implementing the Right to a Healthy and Sustainable Environment

1. Nation

Canada (note this is a hypothetical example, since Canada is not yet among the 150+ nations that legally recognize this fundamental human right!)

2. Name of submitter

David Boyd

3. Title of the good practice

Eliminating coal-fired electricity generation

4. Description of the good practice

The Canadian government enacted a regulation pursuant to the Canadian Environmental Protection Act, 1999 that effectively requires all coal-fired electricity generating facilities to close down by 2030 (subject to several exceptions). Facilities can continue to operate if they implement carbon capture and storage systems, or in certain circumstances where provinces reach equivalency agreements with the federal government to implement other measures that ensure equal reductions in greenhouse gas emissions.

Canada, along with the United Kingdom, also created the Powering Past Coal Alliance, a coalition of dozens of governments and businesses that have pledged to eliminate or avoid dependence on coal-fired electricity.

5. Evidence of improved state of the environment

Elimination of coal-fired electricity generation has already resulted in a substantial improvement in air quality in the province of Ontario and will have similar positive impacts in other provinces. There will also be a major reduction in Canada’s greenhouse gas emissions as coal is replaced by a combination of renewables (mainly wind and solar) and natural gas.

6. References

Reduction of carbon dioxide emissions from Coal-fired Generation of Electricity Regulations, SOR/2012-167, as amended. https://pollution-waste.canada.ca/environmental-protection-registry/regulations/view?Id=116

Government of Canada. No date. Reducing greenhouse gas emissions from electricity generation. https://www.canada.ca/en/environment-climate-change/services/climate-change/greenhouse-gas-emissions/regulations/reducing-electricity-generation.html

Powering Past Coal Alliance. https://poweringpastcoal.org"

-----

So, join in!  And kudos to Dr. Boyd for "crowdsourcing" this research and allowing so many to contribute!

International Anti-Semitic Attacks

Yom Kippur in Germany brought an unsuccessful attempt by a heavily armed man to gain entrance to a synagogue.  He was unsuccessful in his attempt to enter the synagogue but killed two men outside.  Police believe the gunman acted alone, shot at the entrance to the synagogue.  He live-streamed the violence where he denounced Jews as the root of all harm, denied the Holocaust and denounced feminism.  Police responded immediately, the live stream video was taken down, and one man is in custody.

This attack is part of the worldwide increase in attacks against Jewish people reminding Americans of the horrible Pittsburgh shooting.  How important it is for the world to keep the memory of the Holocaust and other genocides alive.  Ignorance of these events will lead to more denial - or worse.  

These attackers are hateful and disturbed.  The historically oppressed are the targets.  Religious minorities, particularly Jewish people, women, and people of color, are the likely targets in white-majority nations. 

Countries, and especially the U.S., must honor their minorities.  Whether minorities and women are oppressed reveals the character of the country.  We reflect on this as the U.S. leaves thousands of Kurds to be slaughtered by invading Turks. 

 

 

 

Good Food Cities

At a time when the US federal government has chosen to squander humanity's future by not only denying climate change but relaxing industry standards and promoting anti-climate policies, thank goodness for the US cities and states that are responding to concerned Americans by taking decisive action on climate issues -- and shrugging off federal threats to penalize them for taking such actions.  As these local leaders recognize, federal denial cannot change the reality of what is happening on the ground.

Still, given the stakes, more US cities need to show even more leadership in this arena.  

At the C40 climate summit in Copenhagen last week, fourteen members of the C40 global climate cities group pledged to adopt sustainable food policies as a component of combating climate change.  The Good Food Cities Declaration commits mayors to use their procurement authority to promote sustainable sourcing of delicious, healthy, low carbon, affordable, and (did we mention this before?) delicious food for their communities over the next decade.

Specifically, the Declaration calls for the following measures by 2030:

·  Aligning cities' food procurement to the Planetary Health Diet, ideally sourced from organic agriculture.

·  Supporting an overall increase of healthy plant-based food consumption in cities by shifting away from unsustainable, unhealthy diets.

·   Reducing food loss and waste by 50% from a 2015 baseline.

·   Within two years of endorsing this declaration, working with citizens, businesses, public institutions and other organizations to develop a joint strategy for implementing these measures and achieving these goals inclusively and equitably, and incorporating this strategy into our Climate Action Plan.

A number of US city mayors are speaking at the C40 summit, including mayors of Seattle, Portland (Oregon), Austin (Texas), Boston, and New Orleans.  Many more cities are members of the C40 group.  Yet Los Angeles was the only US city to join the Declaration as a founding signatory.

Perhaps there are reasons for this lag in pledges -- for example, the governance structure of some US cities mean that the mayor cannot unilaterally commit to change procurement policies.  But by whatever local mechanisms are required, all US cities should be working to bring their food policies up to these standards -- contributing to the global effort to moderate climate change while also alleviating malnutrition and food insecurity.

 

Human Rights to Water and Sanitation -- Opportunities for Input

On October 22, the UN Special Rapporteur on the Human Rights to Water Sanitation will hold the first in a series of three consultations on the meaning of progressive realization in the context of the human right to water.  More background is available here.  Below is the schedule for three consultations:

Consultation process

• 22 October 2019: public consultation in New York

Together with Franciscans International, the Special Rapporteur is organizing a public consultation.

Date and time: 22 October 2019, 10 a.m. - 12 p.m.,
Venue: Baha'i International Center, 866 United Nations Plaza #120,
Registration

• November 2019: online bilateral consultation

The Special Rapporteur and his team are organizing online bilateral consultations via Skype on 1 November, 8 November and 15 November 2019.

Sign-up for the online bilateral consultation is now available.
See background paper guiding questions for further information.

• December 2019: questionnaire to State and other stakeholders

In line with previous practice, the Special Rapporteur will seek input from States and non-State actors by distributing a questionnaire. The questionnaire will be available in December with the deadline of 28 February 2020.

Resources on Human Rights and Corruption for US Teachers and Advocates

If you're teaching US Human Rights this year, you may want to include a focus on corruption and human rights -- necessarily a rapidly expanding area of concern for US advocates.

Here are some resources to get started:

-- The US ratified the UN Convention Against Corruption in 2006 and is subject to periodic peer review in accordance with that treaty's provisions.  The US country profile page includes the results of the 2015 review and the most recent self-assessment prepared by the US in July 2019 in anticipation of the upcoming peer review led by the Netherlands and Bangladesh.

--Anne Peters' 2018 article in the European Journal of International Law discusses corruption as not just a human rights concern, but a violation of human rights, and provides background on corruption's place in the human rights canon.

--The report of a recent conference on corruption and human rights at Harvard's Carr Center provides a snapshot of current research and advocacy on the links between corruption and weakening human rights enforcement, including examples from the United States. 

-- Transparency International is a go-to organization working globally against corruption.  Here is its US profile page.

 

World Day Against the Death Penalty

Thursday, October 10, will mark the 17th annual World Day Against the Death Penalty.  This year, the World Coalition Against the Death Penalty aims to use the day to highlight the impacts on children whose parents have been sentenced to death or executed.  In 2018, 20 countries around the world carried out executions, with the US among the top 10 executioners.  For ideas about how you can join efforts to abolish the death penalty in the US, click here.  

Though the fight against the death penalty is a long struggle, the news is not all bad.  On October 8, Oklahoma responded to advocates by agreeing to move "qualifying" death row prisoners out of solitary confinement.  While it remains to be seen how the state determines which inmates qualify, advocates anticipate that within days, most of these prisoners will be moved to units with more humane conditions, where they can see natural light and interact with other people. 

However, one step forward and two steps back  . . . in a blow to human rights activists, in July, the Trump Administration announced that it was reinstating the death penalty for federal prisoners.  Five people are scheduled for executions in December 2019 and January 2o20 -- the first federal executions since 1983.  

 

Mis-Using Religion

Constitutional Scholars better versed can address the upending of what for many of us was traditional first amendment jurisprudence over the past few decades.   That separation of religion and government, while frequently tested, was axiomatic.  That has changed.  Beginning with Hobby Lobby, the amount of litigation based upon religious freedom has exploded.   Religious fundamentalists have been patiently working away. The Religious Freedom Restoration Act is a cornerstone to prioritizing the religious "freedom", no matter how ugly, over civil law. The proponents have chipped away at women and LGBTQ rights and other populations that challenge power.  

Historically the invocation of religious freedom was used to protect believers from dismantling by the state.  Likewise, communities were protected from the intrusion of unwanted religious beliefs upon their civil activities.  Flipped, religious freedom is now used to unburden believers of their duties as citizens to comply with and uphold the law.  

Those claiming religious protection disguise their claims by finding religious reasons for dismissing the human rights of non-conformists.  Every major religion has some version of "love your neighbor." No exceptions. Perhaps love should be the test of whether a belief is valid and sincere.

Religions can bring comfort.  But when religion is used to perpetuate the oppression of others it is time to challenge the underlying religious interpretations that often ignore accuracy and disregard context. The result is oppression based on sex and sexuality. The cherry pickers of scripture should not dismantle hundreds of years of constitutional interpretation favoring human rights. The expansion of "freedom of religion" without counterbalancing "freedom from religion" offends the very notion of freedom. 

A Human Rights Lens on the Sexual Orientation Cases before the Supreme Court

On Monday, October 7, the U.S. Supreme Court will open its 2019-2020 term.  The Supreme Court is designed to resolve the hardest cases, of course, but even so, this term already promises an unusual number of contentious issues.  Much has already been written about the impact that this conservative Court might have on civil rights and civil liberties issues this term.  In addition, the rulings this term may further undermine U.S. adherence to its treaty obligations and to general human rights norms articulated in the Universal Declaration of Human Rights.  Further, in some cases -- for instance, the pending case concerning gun regulation -- the Court may also be asked to take note of the ways in which the U.S. is a human rights outlier.

On the first Tuesday of the term, the Court will hear three cases involving the question of whether Title VII bars discrimination on the basis of sexual orientation or transgender identity.  The ultimate question is one of statutory interpretation, i.e., what is the meaning of "because of . . . sex" in Title VII.  Similar language in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) -- to which the U.S. is a party -- has been construed to encompass discrimination based on sexual orientation and gender identity.  As stated by the UN Office of the High Commissioner for Human Rights, "[t]he legal obligations of States to safeguard the human rights of LGBT people are well established in international human rights law on the basis of the Universal Declaration of Human Rights and subsequently agreed international human rights treaties" and include "the right to be free from discrimination."

Among the many amicus briefs filed in the three cases, the brief of InterAct, an organization representing the interests of intersex individuals, draws heavily on human rights analyses to refute the employers' arguments that "sex" under Title VII should be defined rigidly. 

The venerable Charming Betsy doctrine of statutory construction is relevant here.  In 1804, Chief Justice Marshall wrote in the Charming Betsy case that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”  The doctrine applies whether or not a ratified treaty is deemed to be self-executing. 

One rationale for the doctrine is that the Court, a non-political branch, should not unnecessarily place the U.S. in the position of violating its international human rights obligations.  This rationale is quite pertinent to the three cases currently before the Court.  As a member of the UN, the United States's human rights compliance is regularly reviewed through the Universal Periodic Review process.  Should "because of sex" be construed to exclude sexual orientation or gender identity, the U.S. will undoubtedly be questioned about its backsliding.  The U.S. is also required to make periodic reports to the UN Human Rights Committee about its compliance with the ICCPR, and the UN's Special Expert on Sexual Orientation and Gender Identity monitors worldwide compliance with these human rights.   Again, these international monitors would view the denial federal protection against employment discrimination to LGBTQ and transgender individuals as a deliberate retreat from human rights, for which the U.S. would be condemned internationally.

Charming Betsy says, it's not for the Court to make this decision if the language of the statute can support a definition that meets international human rights standards.  "Because of . . . sex" is clearly susceptible to this broader construction -- indeed, this construction has previously found favor before many federal courts.  Given the stakes, including the serious international repercussions of defaulting on our human rights commitments, the Court should steer away from adopting a more restrictive definition, and leave the matter to the legislature.    

 

 

Civil Society Raises Concerns in Advance of US Universal Periodic Review

October 3 was the deadline for civil society submissions in advance of the UN's Universal Periodic Review of the United States' compliance with human rights, set for May 2020.

Submissions address issues ranging from the treatment of pregnant women submitted by National Advocates for Pregnant Women, to a sharp critique of the U.S.'s fading participation in UN processes, filed by Human Rights Watch, to a review of continuing detention and torture at Guantanamo, submitted by the World Organization Against Torture, the International Commission of Jurists, and REDRESS.  Many more civil society submissions will be coming on-line in the next few days and weeks, and in the months leading up to the UN review, this blog will highlight and analyze a number of the submissions.

The US government's own submission is due in February 2020, with the review session scheduled for May 2020.  An overview of US UN participation and schedule of reviews is available here.