Human Rights at Home Blog

Complex Sex and Court Neutrality

By Prof. Shirley Lin of New York University School of Law

Editors' Note:In two previous posts, Professor Lin wrote about the dignitary interests foregrounded in the statutory interpretation and causation issues in the trio of cases addressing Title VII and gender identity and sexual orientation pending before the Supreme Court.

The essence of Title VII is that employers are uniquely positioned in our society to inflict severe economic and psychological harm as a form of social control. This is no less true today than in the Civil Rights Act’s passage in 1964. But by spending considerable time on bathroom and dress codes during last Fall’s arguments in Harris Funeral Homes and the consolidated Zarda and Bostock cases, the Court’s justices implicitly demonstrated confusion about self-identified sex, whether “biological sex” is solely defined by anatomy, and whether the discomfort of others can veto equality at work.

Answering the third: there is no “heckler’s veto” within Title VII law, and America’s history of race discrimination and segregation have made this clear. Nor can Title VII be warped so far as to allow employers to determine our sincerely held sex or gender identity for us. But that is exactly what the defendant funeral home sought to do in Aimee Stephens’ case, and the Court’s inquiries seem to imply. And a ruling against the employees here would be an egregious blow to the legitimacy of the Court.

The fact of sex’s complexity is reflected in dictionary definitions’ use of the word “properties” of the socially constructed trait and “typical” connotations. Sexual variation beyond a fixed binary view was amply acknowledged in medical and social science literature by mid-century. Since the 1960s, U.S. medical experts in developmental sexology have considered several non-exclusive criteria in determining sex including: (1) genetic or chromosomal sex; (2) gonadal sex; (3) internal morphologic sex; (4) external morphologic sex; (5) hormonal sex; (6) phenotypic sex; (7) assigned sex/gender of rearing; and (8) “self-identified sex” (i.e., gender identity). Thus, for millions of individuals and the medical community, sex cannot be deemed only biologically external, immutable, or dimorphic.

The complexity of sex was documented within the United States throughout the first eight decades of the twentieth century, reflecting earlier understanding that gender identity is a major determinant of one’s sex. Prominent stories include Christine Jorgensen, who returned from successful sex reassignment surgery in Denmark and caused a “media sensation” in 1953. By the 1940s, the term “transsexual” appeared in American medical discourse. The idea that sex is mutable became conventional medical advice by the 1950s. Dr. Harry Benjamin further popularized the term transsexual during this time as the published his seminal text, The Transsexual Phenomenon, in 1966. Although wide surveys did not exist until recently, the size of the adult U.S. transgender-identified population is currently about 1.4 million, with a recent federal study estimating that approximately 1.8% of all high school students identify as transgender, and an additional 1.6% have responded that they were unsure. (For additional reading, I recommend the amicus brief in support of the employees filed by Law & History Professors.)

Natural sexual variation by the 1950s was also admittedly more complex than binary male or female, and thus a legal definition of “sex” should not foreclose the existence of non-binary individuals. A comprehensive survey of medical literature from 1955 to 2000 concluded that “[b]iologists and medical scientists recognize . . . that absolute dimorphism is a Platonic ideal not actually achieved in the natural world.” For example, the frequency of intersexuality is approximately 1.7% of live births, or millions of Americans at any point in the last half-century. (For additional reading, I recommend the amicus brief in support of the employees filed by InterACT: Advocates for Intersex Youth and expert amici.)

Arguments that original public meaning or original legislative intent should drive interpretation of Title VII must not only overcome issues with collective attribution when actual experiences and opinions are diffuse. This alone could end the debate. But they must contend also with scientific and public knowledge at the time regarding considerable sexual variation. Rather than “updating” statutory construction with twenty-first century meanings of “sex,” what a tidal wave of lower courts has done since 2015 is acknowledge existing complexity and typographies that serve as functions of sex. By so doing, these courts have rejected the inaccurately narrow “biological-as-anatomical” view of sex as not neutral.

As an arm of the State, the Court must focus on its actual task of determining the scope of the social trait of “sex,” and avoid the harm of imposing its own close-ended concept of sex. As to sexual orientation, the Court acknowledged in Obergefell v. Hodges that laws targeting homosexuality “put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” The political branches continue to engage in variable and oppositional politics regarding sex. Currently, the Trump Administration’s policies seek to rescind gender identity and sexual orientation from federal non-discrimination protections, while states and localities expand their laws and policies memorializing such protections or defining sex and gender even more broadly, and offering non-binary or third sex markers, and other policies.

It is not only up to litigants and civil rights counsel who have tirelessly raised these points to give our dignitary interests their meaning. We must do our part to engage in these conversations and address these misconceptions and biases within our own communities also.

Duke Law Human Rights Clinic Submission To Commission on Unalienable Rights

by Guest Bloggers  Jayne C. Huckerby, Clinical Professor of Law and Ava Fujimura-Fanselow, Senior Lecturing Fellow and Supervising. Both are with Duke University School of Law's International Human Rights Clinic.

On May 7, 2020 the Duke Law International Human Rights Clinic made a submission, co-signed by individuals linked to the human rights clinics at over twenty U.S. law schools, to the Commission on Unalienable Rights. The submission was based on, among other things, the clinic’s monitoring of the Commission’s five public meetings held in Washington D.C. between October 2019 and February 2020. The Commission, established in July 2019 by Secretary of State Michael R. Pompeo, aims to fundamentally revisit questions about what constitutes a human right, the effects of rights claims, and the role of human rights in U.S. foreign policy. Its launch quickly drew the attention of human rights advocates nationwide because of its troubling mandate, membership, and risks to women’s, LGBTI, and socioeconomic rights (see here, here, and here). Recently its work has been subject to a lawsuit. While some of the Commission’s concerns—such as how to address governments’ misuse of rights or analyze the efficacy of human rights treaties and institutions—are shared by many in the human rights community, the Commission in its composition, set-up, and five public meetings (see here, and here) has reflected some concerning and often one-sided understandings of how these challenges are best framed, assessed, and solved. As the Commission prepares its final report to Secretary Pompeo, this submission delves deeper into the ten core concerning propositions relied upon by the Commission, including that rights have proliferated and thus must be reduced; human rights treaties and institutions have totally failed; there is a hierarchy among human rights, including between civil and political rights and economic, social, and cultural rights; and religious freedom is more important than other human rights. The submission then identifies eight principles of international human rights law that should instead guide its work – these include: there is no rights hierarchy under international human rights law; the UDHR alone is an insufficient basis to protect human rights; economic, social, and cultural rights are equal to civil and political rights; and the rights to sexual and reproductive health are guaranteed under international human rights law.

The Irony of Asian-American Month: Part Two

Co-Editor Prof. Jeremiah Ho submits the second part of his writing reflecting on being Asian American during the time of COVID-19.

When President Trump and other politicians refer to Covid-19 as the “Chinese virus,” there is meaning and blame underneath that handy reference.  Simply put, one can say that what the world is dealing with is the “Chinese virus” because Covid-19 was known to have originated in Wuhan, China.  But adhering to that meaning is denying the phrase’s other slippery and sinister meanings—perhaps as a not-so-subtle gesture of the finger-pointing to China or to Chinese people as the cause of the virus; or an implication that Covid-19 is a virus inhabited and carried by Chinese people; or even worse, an implication that Chinese people are viruses.  As a parallel to The Plague, herein lies the moralizing that funnels the narrative of the pandemic into a narrative of blame.  In times of crises big or small, we all want to find the root cause and we all want to determine fault.  In law, this tendency to make meaning is a prominent, almost-daily ritual.  It’s only human. 

Yet, in this context, it’s also absurd; and unlike Camus, I am using that word here to discern.  Scapegoating and blaming Asians and Asian-Americans during this pandemic is a fall-back strategy for those interested in stirring up racial bias and hatred in order to make meaning in this crisis and permit them to usurp this moment to their advantage.  We saw this with the AIDS crisis with queer and gay people.  Within white supremacy, this type of othering conjures a false sense of security and control at the expense of a minority group. 

In part, the historical narrative of Asian-Americans has always been one that fluctuates between proving our worthiness and proving our loyalty for a sense of belonging in the American society.  The model minority myth plays into the meritocratic values of institutional and structural racism, making Asian-Americans appear as worthy of being recognized as the “good Americans” for working hard, keeping quiet, and abiding by dominant values.  The myth was originally imposed upon Asian-Americans but it also has been leveraged by Asian-Americans as part of the negotiation for acceptance by the dominant status quo.  At the same time, the yellow peril symbolism casts Asian-Americans as economic, physical, and national threats to American society so that individuals of Asian descent have to constantly prove their loyalties to the U.S. in order to gain security.  The treatment of Japanese-Americans by the U.S. government during World War II exemplifies this strand of that narrative.  In one quick month in 2020, we saw the materialism and meritocratic benefits of the Asian-American narrative replaced by the rise of yellow peril symbolism, breathed into the collective air by the antagonizing phrase “Chinese virus” and then quickly manifesting to displays of racial hatred and violence as the American public tries to find meaning in this crisis. 

What the model minority myth and yellow peril symbolism underscore for the Asian-American narrative is an idea that those embodying white supremacy want us to believe:  that people of Asian descent in the U.S. are perpetually foreigners.  They don’t belong here and they only cause trouble.  But Camus in The Plague would want us to find fault with this kind of blame during the pandemic.  Although the production of meaning is a human tendency, what is effectively and instrumentally meaningful in a time of collective crisis is not blame and descension, but common decency.  The main character in Camus’ novel a doctor who treats the diseased comes to realize this after months of treating patients and watching them die from plague.  The only meaning he finds in his work is not something as highly-charged as a kind of heroism but rather a sense of common decency.  It’s useless during the time of plague to uncover blame as a way to combat the sickness.  Rather, The Plague’s central character, Dr. Rieux asserts, “It may seem a ridiculous idea, but the only way to fight the plague is with decency.”  When asked to clarify the meaning of decency, he answers, “In general, I can’t say, but in my case I know that it consists in doing my job.”  In the novel, the way he externalizes his common decency to help fight the plague by working in solidarity to help those suffering from plague.  This present moment is one in which we need common decency to determine what will most equitably serve all of us.  We need to act with common decency in solidarity against this disease, rather than finger-pointing and creating fragmentation.  According to Camus, who wrote The Plague as an allegory about Nazi occupation in France during World War II, that common decency in solidarity is the needed resistance against a common pestilence—whether pathological or ideological, or both.     

In this pandemic, the leaders who are lacking serious epistemic responsibility are adhering to a narrative of American exceptionalism that is both absurd and dangerously untrue.  It can cost lives.  This is a moment to change that narrative by resorting together to find common decency to resist the urge to blame.  For Asian-Americans, and other minority groups, it is important to see where we all are in this system of white supremacy, to see how we are all being used, and to decide to reject the exclusion.  We matter.  We belong.  We don’t have anything for which to apologize.  Instead, we are in this together and we have work to do to help ourselves and others move beyond this searing disease.     

The Irony of Asian-American Month

by Prof. Jeremiah Ho

Prof. Ho writes this two-part post on the Asian American experience in the time of COVID-19

Last December, while I was searching for plane tickets for March spring break, the thought never crossed my mind that my one-week trip to visit family in my hometown just east of Los Angeles, would be extended indefinitely deep into the spring—and now likely summer—months.  At the time, I couldn’t imagine that we would all succumb to the effects of a significant virus; the world had not yet circulated the name “Covid-19”.  But very swiftly, the pandemic has made the catastrophic commonplace.  None of us have been immune to such physical and psychological terrors that have accompanied this health crisis.                 

The other thought that had not cross my mind last December was when, where, and how as an Asian-American, would I experience my next incident of racial hatred.  I know it’s coming.  It could be a confrontation and an epithet—tossed while I’m out in public when this is all over, catching me in a moment of surprise.  That sort of thing has happened before.  Or it could be a more subtle form of social denial or discrimination, where the perniciousness of the act is clearer only in hindsight.  There could also be violence involved.  Or it could be a combination of all these different types of hatred.  And it could happen more than just once.  All I know is that no immunity exists for such horror-laden moments.  Once the public health crisis arose, the number of racially motivated attacks on Asians both in the U.S. and globally also rose.  I’m expecting my turn.   

How swiftly the narrative has shifted for Asians and Asian-Americans in the U.S.from the dominant status quo’s regard as model minority citizens back so suddenly to yellow peril.  In my hometown just east of Pasadena, California where I grew up and have spent these months quarantining with family, the Asian-American population here has grown radically across the last four decades.  In the early 1980s, I was only one of three Asian-American children in my elementary school classroom, but by the time I graduated high school in the same town, Asian-American students comprised of more than 50% of the student population.  Today, my old high school counts Asian-Americans as nearly 70% of its students.  We are the majority—so much so that there is even a separate Chinese-American parents booster club.  Where the old Ralphs Supermarket used to be, a giant H-Mart Korean market now sells the most exotic (but mundane to us) Asian groceries.  In town, there are two outposts of the legendary Din Tai Fung Restaurant, the Taiwanese eatery famous among international foodies for its soup dumplings.  A handful of Asian banks dot the town’s business districts, and our city hall’s website has translated versions in traditional and simplified Chinese, in Korean, and in Spanish.  Take your pick.  Back before the health crisis had us quarantining, my retired parents never had to speak a word of English when they stepped out of the house to run errands.  And even in our time of safer-at-home, the Chinese language newspaper still delivers to our door every morning. 

My hometown is one of several cities in the San Gabriel Valley that have seen an Asian-American immigration boom.  But even so, when I take walks in my old neighborhood of quiet post-War single-family homes and I pass by white neighbors, I find that the practice of social distancing is both a practice of safety and suspicion.  It’s as if any social or political capital that’s been built on the material progress of Asian-Americans in our town has seemingly crumbled.  Every time I take my parents’ car out for its bi-weekly run and drive by the Santa Anita Race Track, a famous historical fixture in town that still hold professional horse-betting today, I recall that it was used as a Japanese-American detention facility during World War II.  And I’ve been reminded of this fact, especially so, while it’s been Asian-American Heritage Month these last several weeks. 

In Albert Camus’ The Plague, an extremely apt and salient novel to read (or re-read) during our pandemic, Camus demonstrates the human tendency to make meaning out of a natural world that has no concern for meaning.  In The Plague and other works, Camus associated this tendency with what he called “absurdism” because invariably, as he believed, the world defies meaning and is indifferent to our humanist struggle to make our lives and the world meaningful.  Contrary to the sound of the word, “absurdism,” to our ears, Camus does not judge our constant endeavors to search for meaning in life as a deficiency.  But rather, as seen in The Plague, it’s the type of meaningful response that we have when there’s an unexpected crisis, like a city-wide plague or a global pandemic, that matters for judgment.  In The Plague, the disease that unexpectedly asserts itself over the sleepy Algerian town of Oran prompts quarantine and then causes widespread suffering and death.  The plague is first interpreted by a Catholic priest in the novel as an outcome of human sin of the town’s inhabitants.  The plague is moralized and made meaningful in terms of blame. 

It's Not All Bad News: The New Title IX Regulations

In two previous posts, Professor Dunlap wrote about the adverse timing of the release of the Title IX final regulations and about the perpetual battles over the regulations. In this post, she discusses an overlooked positive of the new regulations—the move away from universal mandatory reporting on college campuses.  

by Prof. Justine Dunlap, UMass Law School

Most of the provisions of the new Title IX regulations released May 6^th have been rightfully critiqued as negatively affecting survivors who allege that they have been the subject of sexual assault or sexual misconduct on college campuses. The outcry has been strong against, for instance, the institution of cross-examination as well as permitting, and in some instances mandating, a higher standard of proof. The focus on these changes, however, has resulted in one revision that will benefit many survivors have gone largely unnoticed.

Over the last decade or so, there has been a move towards having all or nearly all university employees designated as “mandatory reporters.” A mandatory reporter is one who must report an allegation of sexual assault to the university’s Title IX coordinator. This report must be made even if it is against the wishes of the student who discloses that she or he was the victim of sexual assault or misconduct. This phrase grew out of the phrase “responsible employee” in old DOE guidance which defined the term in a cumbersome and confusing way. That guidance, moreover, led many schools to believe that the prior administration’s Department of Education favorably looked upon classifying nearly every employee in this manner. The exception to this requirement was individuals who were deemed “confidential employee” due to the counseling nature of their responsibilities.

This near-universal approach to responsible employees/mandatory reporters was, perhaps counter-intuitively, often harmful towards the individual disclosing the assault. If virtually all employees are mandatory reporters who must make an official report to the Title IX coordinator, then students who do not wish to go that route are foreclosed from disclosing to, for instance, a trusted faculty member. This in turn prevents student survivors from getting the support they need in order to have equal education opportunities regardless of sex, which is the core purpose of Title IX. By connecting disclosing and reporting, survivors were being forced into a situation where they were once again stripped of control. The data is copious that being able to control the process of disclosing and reporting, including the right to do the first but not the second, is core to a survivor’s healing. That is why many survivor groups have long opposed widespread Title IX mandatory reporting requirements. It is good to have the opportunity to restore that control. The challenge will be in getting universities to rescind those mandatory reporter policies.

Editors' Note:  Prof. Dunlap writes of mandatory reporting obligations in more depth in a forthcoming  article to be published by the University of New Mexico Law Review next year.

Textualism, Plain Meaning, and Upheaval

by Prof. Shirley Lin, of New York University Law School

During oral argument in Harris Funeral Homes v. EEOC last October, Justice Gorsuch asked if the Court should take into account whether “massive social upheaval” would follow if it were to rule that people could not be discriminated against based on transgender status under Title VII.  David Cole’s reply on behalf of respondent, Aimee Stephens, aptly noted that appellate courts have recognized such discrimination as unlawful for twenty years with no such upheaval.  (No such concern was raised in the cases regarding sexual orientation and Title VII, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda.)  The greater danger of upheaval is the one that would follow a decision in Harris Funeral Homes that ignored both statutory text and Court precedent that favors a conceptually broad meaning that arose from various interpretive theories — including textualism.

Our nation’s history reflects that a primary tool of dehumanization is through sex, in tandem with race, color, religion, and national origin.  For more than half a century, Title VII has been authoritatively interpreted to encompass numerous manifestations of those harms, which were not “new” under the sun.  In 1998, the Court was asked whether Title VII prohibited sexual harassment when the employees harassed were of the same sex as their harassers.  Through Justice Scalia, the Court replied: “[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.  But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Textualism contends that statutory text is the primary source of meaning and that legislative history should never be considered.  The plain meaning approach, which predates the rise of new textualism, treats statutory text as the best evidence of intent; but it also considers legislative background should they conflict.  Under both textualist and plain-meaning approaches, some courts refer to dictionary definitions to assist with statutory interpretation.  In his influential opinion in Fabian v. Hospital of Central Connecticut, Judge Underhill explained that even under a textualist approach to “sex” (as Title VII doesn’t further define “because of . . . sex”) dictionary definitions refer to the process of ascription based upon multiple characteristics, “properties,” and “peculiarities” of the sex trait.  Sex was understood as a pluralistic trait, not an isomorphic one. 

Thus, while most courts recently have ruled in favor of recognizing claims based upon transgender status or sexual orientation as sex discrimination, the older decisions did not abide by textualism nor plain meaning.  Their decisions unduly reduced the meaning of “sex” to two categories instead of acknowledging the structural concepts producing the trait reflected in authoritative definitions.  In other words, they reached results based upon their views of social policy.  But the American public already has a different view of sex, Title VII, and the law’s remedial purpose in mind.  Current polls show that 80 percent already believe it is illegal to fire someone for being transgender, gay, or lesbian, and 72 percent think it should be.  For further reading, I recommend Professor Katie Eyer’s excellent explanation of contra-textualist arguments such as “original public meaning” raised in the trio of cases, which are still pending before the Supreme Court.

Impact of COVID 19 on Domestic Violence Service Organizations

The following is part two of Amanda Suarez' post on the impact of COVID 19  on domestic violence survivors and service organizations.  Ms. Suarez is a second-year law student at the University of Miami School of Law and a legal intern at the Miami Law Human Rights Clinic directed by Prof. Carrie Bettinger-Lopez.

Domestic violence organizations also face unique problems due to the COVID-19 pandemic, including a lack of resources, privacy issues, and communication issues. Domestic violence shelters face being overcrowded in a time of social distancing, and a lack of cleaning supplies and staff.

Many domestic violence organizations are non-profits that rely on donors or fundraising mechanisms to survive. In times of COVID, this funding can be extremely limited and can lead to organizations not being able to offer all of the services that they previously did. Moreover, organizations face the problem of having reduced staff because of the pandemic. Some staff members may not want to work due to the health risks of the virus, and others may not be able to because they have already contracted it. This means that there are fewer service providers that are able to help survivors as a result. Organizations also face several privacy issues due to the pandemic. Maintaining compliance with HIPAA is a concern that several organizations serving survivors of lower socio-economic status in South Florida have flagged due to the survivors’ lack of access to technology that make signing HIPAA documents possible. Moreover, using video conference platforms come with privacy risks for organizations as well. Zoom has faced scrutiny for allowing people to “zoombomb” meetings. For a meeting between a service provider and a survivor, an occurrence like this can completely eviscerate the survivor’s trust in the organization. Lastly, many organizations have expressed that communicating with clients is harder than ever before. Establishing trust and rapport with a survivor is very hard to establish through virtual methods, and connecting with them at all is also a problem due to a lack of access or fear that their abuser will find out.

            Domestic violence shelters face similar issues due to the pandemic. Because survivors tend to already be living in shelters, they face the unique challenge of having to comply with social distancing measures in shelters that are already overcrowded and have received new survivors as the pandemic worsened. Moreover, shelters have indicated that there are lacking essential cleaning supplies that are needed to properly sanitize the shelters.  Additionally, similar to social service organizations, shelters face staff shortages due to health concerns. This can lead to survivors being left within the shelters with very little staff, which has an impact on which in-house services they can offer and when.

What Needs to be Done?

Actions need to be taken by federal, state, and local governments to take a human rights approach when addressing the problems that COVID-19 creates for domestic violence survivors and organizations. This means a focus on the dignity of survivors, equality, and non-discrimination in the provision of services, and upholding the right to be free from violence.  There are several key stakeholders that should take actions to ensure the safety and well-being of all survivors:

• Federal, State, and Local Governments
  • Governments should take steps to ensure that funding is being provided to domestic violence organizations so that they can continue to provide all of their usual services.
  • Governments should take steps to ensure that all domestic violence survivors who need a place to stay have access to a safe shelter. Other countries have done this by using empty hotels to provide rooms to survivors.
  • Federal and State governments should identify domestic violence as an issue area during this pandemic and provide guidance to all relevant agencies on how to best proceed by using trauma-informed practices.
  • Federal and state governments should publish resources for survivors on different platforms to increase the visibility of all services being offered.
• Law Enforcement Agencies
  • Law enforcement agencies should ensure that domestic violence calls are given high importance and that all officers are responding to calls in a timely and appropriate manner.
  • Law enforcement agencies should build partnerships with local domestic violence organizations so that they can provide survivors with resources if they are called for help.
  • Law enforcement agencies should make sure to proceed in the manner that the survivor wants, deferring when appropriate to survivors’ preferences on arrest, and providing the victim with a “warm handoff” to resources and service providers.
• Courts
  • Courts should make COVID-19 procedures and practices widely available for the public to access, both on online platforms and through other methods like flyers, phone calls, or texts.
  • Courts should work hard to ensure that survivors have access to court hearings and enough time to respond to any inquiries.
  • Courts should ensure that all virtual means used to hold hearings and communicate with individuals is private and secure.
• Prosecutors
  • Prosecutors should consider the detrimental health implications of placing an individual in jail, and take appropriate actions to avoid sentencing individuals to jail time if possible.
  • Prosecutors should make sure that victims are notified and consulted if a defendant is going to be released during the pandemic, to ensure their safety.
• Shelters
  • Shelters should communicate with other institutional players to ensure that survivors have the most up-to-date information about what is going on.
  • Shelters should take steps to ensure that social distancing measures are being taken and facilities are being cleaned regularly to avoid the spread of COVID-19.
• Legal Services
  • Legal service organizations should communicate resources to survivors and other institutional players across all platforms possible to ensure that everyone is well informed about the different services being offered.
  • Legal service organizations should work with other institutional players to ensure that survivors' cases are being heard and given priority.

 

COVID-19 Leaves Domestic Violence Survivors in the Shadows

Prof. Carrie Bettinger-Lopez sends along this two-part post from her student Amanda Suarez, a second-year law student at the University of Miami School of Law and legal intern at the Miami Law Human Rights Clinic.

The Coronavirus (COVID-19) pandemic has taken the world by storm. There are well over a million cases in the world as of the writing of this article and the number is expected to grow significantly. Countries everywhere are scrambling to get much needed medical equipment, save the failing economy, and enforce policies that require social distancing. In all of the commotion, domestic violence organizations are facing significant obstacles and harms. UN Women has referred to this pressing problem as the “shadow pandemic” and the UN Secretary-General has pointed to the implications this issue has on human rights. Although many articles have been written about the effects that social distancing measures have on domestic violence survivors, not many countries have taken concrete action to combat the problem. For organizations that provide services for domestic violence survivors, their struggles are largely overlooked and unreported. 

COVID-19’s Effect on Domestic Violence Survivors

Most states across the country have implemented social distancing measures that confine individuals to their homes except for essential needs. Confinement of this type can lead to increased tensions within the home due to worries about security, health, and finances. For survivors of domestic violence, confinement means separation from support networks like social service organizations and friends and family. It also means that abusers may be confined to the home for the entirety of the day, leaving numerous opportunities for violence to occur.

Social distancing measures put in place by COVID-19 make it extremely hard for many survivors of domestic violence to get the services that they need. Many women who experience domestic violence do not seek help from law enforcement but turn to social service organizations or family members instead. The current pandemic makes reaching out for help even more difficult for a variety of reasons. First, domestic violence survivors may have a lack of privacy in the home due to their abusers being there all the time. It may be difficult for them to find a safe space to talk to providers or call for help. Moreover, abusers have access to survivors’ texts and call logs, which could frighten some survivors from trying to get help at all. Additionally, survivors may not be able to access services provided by organizations due to a lack of access to technology. Most organizations have moved to online platforms to provide services, and some survivors may not have access to a computer or smartphone that has the capability to use the platforms being used. Due to financial strain, many families may also have to choose which bills to pay, and some survivors may not have access to a phone at all. These disruptions can have detrimental effects on the care and support that survivors need to survive.

Moreover, the stressors from COVID-19 can fuel the abuser’s violent behaviors. The National Domestic Violence Hotline has reported that they have received a growing number of calls from survivors saying that abusers are using the virus as a way to isolate them from friends and family. They have also received calls stating that abusers are threatening to leave survivors out on the street so that they contract the virus, and that abusers are withholding financial and medical assistance. Additionally, gun stores in the United States have been labeled as essential businesses, and gun and ammunition sales have spiked. An abuser having access to a gun makes it five times more likely for the survivor to be killed.  Already, firearms are used to commit more than half of all intimate partner homicides in the United States. The COVID-19 pandemic may exacerbate this violence and put domestic violence survivors in imminent danger.

Editors' Note:  Tomorrow's post will address the impact on survivor service agencies with recommendations for going forward.

 

 

How Advocates are Advancing Racial Justice through Advocacy for Reparations and via Restorative Justice Initiatives

• JoAnn Kamuf Ward, Director of the Human Rights in the US Project at the Columbia Law School Human Rights Institute

On May 1st, the Columbia Law School Human Rights Institute (HRI) convened 200 lawyers, organizers, activists, and government representatives from around the world to explore how core human rights concepts of dignity, equality, and accountability are shaping remedies for racial justice, emphasizing pathways to reparations, and restorative justice. The virtual symposium, Racial Justice, Restoration, and Inclusion: Human Rights Principles and Practice, marked the Institute’s 17th annual Continuing Legal Education symposium on human rights in the United States.

The program was calibrated to explore how international human rights principles inform advocacy to address the reality that the social contract we all need, and deserve, is broken. At a time when there is sharp need for solidarity and community, the sessions were designed for lawyers and advocates to share strategies for organizing, communications, and legislative change that redefine justice, expand available remedies, and center healing and inclusion in work to tackle discrimination, bias, and persistent inequality. 

Speakers from the International Center for Transitional Justice, the Leadership Conference on Civil and Human Rights, the Movement for Black Lives, the New York City Commission on Human Rights, the Center for Constitutional Rights, and the Center for Court Innovation, among others, discussed how to leverage core human rights principles to forge institutions and approaches that foster equity. 

Judge Margaret Burnham, Director of the Civil Rights and Restorative Justice Project at the Northeastern School of Law, kicked off the program. Her keynote remarks (view recording) articulated a conceptual framework for the day, illuminating the intersections and distinctions between approaches to transitional justice, restorative justice, and reparations. The keynote explored the importance of truth telling and acknowledgement in restoring dignity to victims of historical harms. Burnham emphasized that while significant strides have been made to advance legal equality, structural injustice and systemic harms remain largely unaddressed in the United States. Burnham also underscored that “we need to demand a full accounting,” and that the “themes of transitional justice, as reinforced by human rights instruments … offer a framework within which to combat amnesia about the past and anchor struggles for justice.”

The first panel, Foundational Concepts of Remedies and Reparations for Racial Injustice from Global and National Practice (view recording) distilled international human rights norms that define state obligations and require acknowledgement, accountability, redress and compensation for rights violations. Speakers drew from examples in Argentina, South Africa, Kenya and the Philippines, as well as national and local U.S. advocacy, to highlight concrete pathways to remediate past wrongs and eliminate laws and practices that perpetuate racism and inequity.

“‘There is no wrong without a remedy,’” recounted Wade Henderson of the Leadership Conference on Civil and Human Rights, highlighting that “equity is an incredibly important part of our constitutional obligation, and key to fulfilling the rights of those who have been injured,” while explaining why there are reasons to be optimistic about current advocacy for reparations.  Howard University School of Law’s Justin Hansford emphasized the potential, and the limitations, offered by a legal approach and shared his work “to obtain racial justice using a human rights framework and a social movement-centered approach.” Monifa Bandele of the Movement for Black Lives underscored the need for a holistic approach to reparations for chattel slavery, and its ongoing and continuing harms, describing local organizing coupled with UN and federal advocacy that led to partial accountability for decades of harm as a result of police torture of African American men in Chicago.  

The second session, Restorative Justice in Practice: Pathways to Racial Justice at the Local Level (view recording), explored how advocates and city government are operationalizing human rights in restorative justice initiatives to improve health equity, abolish the foster care system, and deliver justice when wrongs do occur. Panelists discussed initiatives that center the perspective of individuals most impacted by rights violations, emphasized the indigenous peace-making principles that drive this work, and explored the transformative potential of participatory justice.

Brett Taylor of the Center for Court Innovation discussed the emergence of the Tribal Justice Exchange, and the importance of an approach that focuses on “helping and healing people, rather than [retribution].” Movement for Family Power’s Erin Miles Cloud shared current efforts to disrupt and curtail the impact of the child welfare system, build community in ways that centers families harmed by the system, and create a new approach to family unity. Ivelyse Andino, Founder of Radical Health, underscored the importance of building trust and shifting power in order to address the stark health inequities facing communities in New York City, including through the use of circles.  Chair of the New York City Commission on Human Rights, Carmelyn Malalis, contributed ways that the Commission uses its statutory authority and community relations work to reimagine the role of government, affirmatively foster inclusion, and design restorative remedies for bias and discrimination that are grounded in community needs, and that address structural causes of harm.

Throughout the program, speakers focused on strategies to achieve justice while seeking to redefine the terrain of transformative and restorative justice practices. Some advocated working within the American legal system and rooting work in the constitution, others in movement-centered work, others in global human rights practices, and still others in indigenous practices. Their words, in concert, provided a new vision of racial justice in America and offered diverse avenues to achieve it.

Video of the entire program can be found on HRI’s YouTube channel.

The program agenda and materials are available on the Symposium event page.

Event co-sponsors included Columbia Law School Human Rights Institute, the Center for Constitutional Rights, the Leadership Conference on Civil and Human Rights, the New York City Commission on Human Rights, Northeastern Program on Human Rights and the Global Economy, the CUNY International Human Rights & Gender Justice Clinic, Social Justice Initiatives (SJI), US Human Rights Network, and Columbia Law School’s Human Rights Law Review.  Columbia University’s Dominy Gallo (‘23), contributed to this blog.  

DeVos Title IX Regs- The Battle Continues

By Prof. Justine Dunlap 

Ostensibly, September 2017, when the Department of Education withdrew “Obama-era guidance” concerning the implementation of Title IX regulations, was the start of battle timeline. After these documents were withdrawn, stakeholders awaited the proposed Title IX regulations with varying levels of anticipation or dread. Those arrived in November 2018, to both praise and gnashing of teeth. Next came the comment period, wherein more than 124,000 comments were logged. There followed speculation as to what the final regulations would be as well as speculation as to when they would be released. December 2019 seemed likely. December 2019, January 2020, February 2020, Corona Pandemic, March 2020, Corona Pandemic, April 2020, Corona Pandemic, May 2020—final regulations issued during this global crisis that has hit schools very hard. More praise or gnashing of teeth. A week later came the inevitable lawsuit challenging the regulations, whose current effective date is August 14, 2020. So everyone has come out of their corners swinging. And the battle will rage on.

In some ways, this is a familiar battle. New administrations produce new regulations or rescind current ones.  It is but one proof of the phrase that elections have consequences. That it is the common course of things makes it no less critical for the stakeholders involved. However, the handling of sexual misconduct cases/Title IX enforcement at institutions of higher education has never fallen into the category of “it ain’t broke, don’t fix it.” Both complainants and respondents have sued institutions for the handling (or alleged mishandling) of Title IX complaints. Much ink has been spilled about high profile Title IX cases at IHE’s that have been handled abysmally.  Thus the criticism that schools are not well equipped for this.

Time will tell whether the regulations will go forward as they were issued on May 6^th. But regardless of that outcome, it is unlikely that the new regulations will be what survivor groups want. The new regulations, as they now stand, contain mandates but also degrees of flexibility. It is important for those who can, to step forward to assist schools as they work to implement these regulations in the best way possible in this strange new world.   

Aimee Stephens and Challenging Our Legal Discourse about Sex

By Guest Contributor Prof. Shirley Lin, New York University School of Law

 

 

A few days ago, we were saddened by the loss of Aimee Stephens at age 59.  Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people.  For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement.  Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to gender justice and workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit, one of the most nuanced examinations of sex discrimination to issue from a court.

 

The panel decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in workplace discrimination law.  Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII within causation analysis and anti-classification analysis. 

 

Title VII’s plain language prohibits discrimination against any individual “because of such individual’s . . . sex.”  An employer generally cannot use an employee’s protected trait — here, her sex  — to harm or otherwise disadvantage her.  Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee; it is a separate element from the trait element.  Thus, “because of . . . sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment.  No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.

 

Thus, the Sixth Circuit reasoned “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.”  Crucially, the panel took judicial notice of the non-binary sex spectrum, and stated:

 

Moreover, discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person's identification with two religions, an unorthodox religion, or no religion at all. And “religious identity” can be just as fluid, variable, and difficult to define as “gender identity”; after all, both have “a deeply personal, internal genesis that lacks a fixed external referent.”

 

Ms. Stephen’s 2018 victory for LGBTQIA+ communities, and all workers, capped a wave of Title VII and Title IX decisions since 2015 in which four circuits have overruled misguided precedent holding that sex discrimination does not reach anti-trans and anti-gay hostility under a narrow definition of sex.  (A fifth signaled it would do the same, if given the chance.)  So have a majority of district courts to reach the issues.

 

However, the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the doctrinal correction.  There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome.  This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and competes with the Sixth Circuit’s and others’ approach of examining the social context of the sex trait.  If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersex, non-binary, and gender-fluid people.

 

Equality scholars will recognize the embedded “anti-classification” approach in this “but-for causation” theory.  Adopting a more abstract, formal equality approach, anti-classification logics limit the reach of discrimination to only the act of classifying people within a forbidden category over more contextual anti-subordination approaches.  By design, it would not support intersectional analysis of race, class, and other factors that inform the social context of our sex.  To further theorize the approach of the post-2015 groundswell, I have proposed multiaxial analysis as methodology that avoids reinscribing a fixed-sex, unidimensional binary. 

 

While we await the Supreme Court’s decision, those of us who, like Aimee, believe in the capacity of human understanding must do our part to expand legal discourse as well.

 

 

A Double Pandemic: Domestic Violence in The Age of COVID 19

By Professor Caroline Bettinger-Lopez and Alexandra Bro

Around the globe, governments have implored residents to stay home to protect themselves and others from the new coronavirus disease, COVID-19. But for domestic violence victims—the vast majority of whom are women, children, and LGBTQ+ individuals—home is a dangerous place.

How have lockdowns influenced rates of domestic violence?

Data from many regions already suggests significant increases in domestic violence cases, particularly among marginalized populations. Take for example the Middle East and North Africa, which have the world’s fewest laws protecting women from domestic violence. An analysis by UN Women [PDF] of the gendered impacts of COVID-19 in the Palestinian territories found an increase in gender-based violence, and warned that the pandemic [PDF] will likely disproportionately affect women, exacerbate preexisting gendered risks and vulnerabilities, and widen inequalities. In Latin American countries such as Mexico and Brazil, a spike in calls to hotlines in the past two months suggests an increase in domestic abuse. Meanwhile, a drop in formal complaints in countries such as Chile and Bolivia is likely due to movement restrictions and the inability or hesitance of women to seek help or report through official channels, according to the United Nations and local prosecutors.

In China, police officers in the city of Jingzhou received three times as many domestic violence calls this past February as in the same time in 2019. Some high- and middle-income countries, such as Australia, France, Germany, South Africa, and the United States, have also reported significant increases in reports of domestic violence since the COVID-19 outbreak.

It’s important to remember that domestic violence was a global pandemic long before the COVID-19 outbreak. According to data collected by the United Nations [PDF], 243 million women and girls between the ages of fifteen and forty-nine worldwide were subjected to sexual or physical violence by an intimate partner in the last twelve months. Put a different way, one in three women [PDF] has experienced physical or sexual violence at some point in her life. LGBTQ+ individuals experience similarly high levels of violence.

Today, rising numbers of sick people, growing unemployment, increased anxiety and financial stress, and a scarcity of community resources have set the stage for an exacerbated domestic violence crisis. Many victims find themselves isolated in violent homes, without access to resources or friend and family networks. Abusers could experience heightened financial pressures and stress, increase their consumption of alcohol or drugs, and purchase or hoard guns as an emergency measure. Experts have characterized an “invisible pandemic” of domestic violence during the COVID-19 crisis as a “ticking time bomb” or a “perfect storm.”

What has been the impact on social services for domestic violence victims?

Cities around the world have seen a dramatic increase in the demand for social services and assistance, especially from people in vulnerable conditions who may not legally qualify for social welfare. Meanwhile, social, health, and legal service providers—such as shelters, food banks, legal aid offices, childcare centers, health-care facilities, and rape crisis centers—are overwhelmed and understaffed. Some shelters are full; others have been converted into health facilities.

As prisons have become hotbeds for the spread of COVID-19, some criminal justice authorities are halting arrests and releasing inmates. These are critically important public health measures that should be accompanied by alternative means to prevent and interrupt domestic violence, such as individualized risk assessments, efforts to notify victims of pending inmate releases, and safety-planning support for victims. Unless governments provide sufficient guidance, resources, and training to local authorities, people will continue to be at greater risk of domestic violence.

What can countries do to protect those at risk of domestic violence amid the pandemic?

As the Inter-American Commission on Human Rights and the United Nations have emphasized, countries must incorporate a gender perspective in their responses to the COVID-19 crisis. Several countries and nongovernmental organizations (NGOs) have already taken innovative steps in this direction. New campaigns also use social media to spread awareness of resources available to survivors, including hotlines, text message–based reporting, and mobile applications.

Social distancing has increased people’s reliance on technology and changed the way mental health, legal, and other social services are provided to survivors unable to leave their homes. With disruptions to the criminal justice system, countries have shifted to virtual court hearings, facilitated online methods for obtaining protection orders, and communicated their intentions to continue to provide legal protection to survivors.

Moving forward, it is critical that states support the development of alternative reporting mechanisms; expand shelter options; strengthen the capacity of the security and justice sectors; maintain vital sexual and reproductive health services, where domestic and sexual violence victims are often identified and supported; support independent women’s groups; finance economic security measures for women workers, especially those serving on the front lines of the pandemic or in the informal economy, and other groups disproportionately affected by the pandemic, such as migrant, refugee, homeless, and trans women; and collect comprehensive data on the gendered impact of COVID-19.

How is the pandemic likely to affect long-term progress toward ending domestic violence?

Elected officials and the general public are now more aware of this invisible pandemic than before, and the connection between physical insecurity and economic insecurity is suddenly more tangible for people who might otherwise have been less attuned to domestic violence. There is now a unique opportunity to shine light on the economic dimensions of domestic and gender-based violence, create financial safety valves for victims, and consider public health-oriented, non-carceral approaches that address prevention and root causes.

At the same time, this pandemic has the potential to continue to marginalize domestic violence survivors in dire need of support amid what could become the greatest global economic crisis in modern history. For survivors, particularly those who are marginalized or underserved, the pandemic could reinforce their mistrust in formal systems and alienate them further. Repairing those relationships would be an enormous challenge that would require an overhaul of conventional approaches to prevention, response, and treatment. Governments, NGOs, and the private sector need to incorporate a human rights and gender lens into all of their COVID-19 responses and funding structures to address this new reality.

Renu Nargund contributed to this article which was first written for the Council on Foreign Relations 

 

The Other Heroes

By Guest Blogger Prof.  Hillary B. Farber of UMass Law School

At this moment when our nation is celebrating the heroism of our immigrant work force, who in large numbers are among those the government now deems ‘essential workers’, President Trump is banning almost all migration into the U.S. The truth is immigrants have always been indispensable to our economy and this crisis amplifies that reality.

Immigrants are disproportionately represented among those who are risking their safety, their lives and the lives of their families to transport food to our tables, remove hazardous waste from our medical centers, and sanitize rooms in our hotels so medical workers can isolate from their families and continue caring for our sickest. We hail their heroism, applauding them every night, sponsoring rallies of honking cars down our streets, and filling our windows and doors with colorful rainbows and thank you signs.  A local grocery worker originally from Mexico recently remarked “who would have thought that I would be considered an essential worker, literally risking my life to stock shelves at my local grocery store?” 

Where were these workers a year ago, two years ago, a decade ago? Many of them were here, working as hard as they are today. We took them and their commitment to do these jobs for granted and they were nearly invisible to us. We may have noticed them behind a cart in a hotel hallway or asked them for fresher lettuce in the produce section of our local market. Could we have imagined that they would be the heroes we would cheer and the people whose unwavering work would keep us alive?  We say “it takes a village” but often ignore the thousands, if not millions, of immigrant workers laboring in the supply chain for all of our basic necessities, often silently sustaining our society. Now, the COVID-19 pandemic has shone a bright light on their faces and exposed their dedication. When the busyness of our lives came to a screeching halt we finally took notice of the identities of those whose plight we otherwise ignored as the immigration debate reached a fever pitch in our country. 

The worst of times often bring out the best in people. If we’re honest about who is sustaining us through this hardship, we may find a silver lining of clarity and compassion in our darkest hour. After 9/11 we said “we will never forget” and after the Boston Marathon bombing we were one as “Boston Strong”. When this pandemic is over let us remember and uphold those who have kept the shelves stocked and the hallways clean. Let us be more honest and more accepting of those who drive the engine of our economy and perform the tasks that save lives. Let us acknowledge President Trump’s actions simply play into a xenophobia that distracts from what we have learned about the power of unity in a crisis.

The Origins of the Right to Science

Just days after the UN Committee on Economic and Social Rights released its new General Comment 25, on the right to enjoy the benefits of scientific progress, comes a fascinating new publication by Cesare P.R. Romano reflecting on the origins of the right:  The Origins of the Right to Science: The American Declaration on the Rights and Duties of Man, in The Right to Science: Then and Now, Cambridge University Press, Porsdam H. and S. Porsdam Mann (eds.) (forthcoming 2021).  The article is available on SSRN here.  Below is the Abstract:

 

Abstract:

This chapter tells the story of the drafting and adoption of the American Declaration of the Rights and Duties of Man (1948), and in particular of its provisions on the “right to science” and the “rights of science”, that is to say the human rights that are most crucial for the work of scientists and inventors, such as freedom of thought, academic freedom, intellectual property and others.

The American Declaration is the first broad and detailed enumeration of human rights to be adopted by an intergovernmental organization. Although the Universal Declaration of Human Rights is hailed as the founding document of international human rights, it is often forgotten that it was preceded and inspired by the American Declaration. While the Universal and the American declarations were largely drafted in parallel, the drafting of the American Declaration was always a couple of steps ahead. The American Declaration was completed before the second round of drafting of the Universal Declaration, and was adopted on 2 May 1948, almost eight months before the Universal Declaration (10 December 1948). There is no doubt that the American Declaration heavily influenced the drafting process and final wording of the universal one.

Thus, if one were to pinpoint a day and place where the “right to science” was born, it would be on 31 December 1945, in Rio De Janeiro, Brazil. On that day, the Inter-American Juridical Committee adopted the first draft of the future American Declaration. In it, they described a new human right, never articulated before: the right to benefit from progress in science and technology, also known more succinctly as “the right to science”. Although reworded and re-elaborated, the right survived two drafts and the negotiating process to end up in Article XIII of the American Declaration. In turn, that provided the essential wording for Article 27.1 of the Universal Declaration, which then led to Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and several other human rights treaties and declarations.

DOJ, MIchael Flynn and Judicial Independence

Since the 2016 election the human US rights advocates have turned to the federal courts for help.  The courts have not always ruled in favor of human rights advocate, but there were many victories.  Advocates often gave thanks for an independent judiciary. The judiciary has been the only branch of government that has operated within their original design as an independent branch of government. 

The Justice Department's attempt to unwind the convictions of Michael Flynn has a broader purpose than adjusting Mr. Flynn's conviction status.  Attorney General Barr is testing the process to determine if the dismissal mechanism is a successful tool in undermining judicial authority. 

In his exploration for a presidential campaign, President Trump tested how much he could control voters' mind by creating the "birther" movement.  What he learned was that through the most implausible of tools he could create a base of supporters.  This is DOJ's birther moment within the legal system.  How much will DOJ be able to manipulate the judicial branch through established legal mechanisms. 

DOJ's motion to dismiss the Flynn prosecution is a prototype.  And a clever one.  A presidential pardon would accomplish the same result but in an election year this route is a safer route.  In addition, this route  tests the court in determining if the method is one that can be replicated.  Judge Sullivan has been brought into a critical process.  Agreed upon motions are frequently allowed without intensive scrutiny.  But this motion is not like others.  Whichever way Judge Sullivan decides, the ruling will be historic. 

Had Enough of Jigsaw Puzzles? Write on!

The Science and Human Rights Coalition of the American Association for the Advancement of Science (AAAS) is sponsoring an essay competition for undergraduate and graduate students.  The deadline for submissions is May 28, 2020.  According to the AAAS, "[t]his essay competition was created to inspire students to explore connections between human rights and science, engineering and the health professions. Students may write on any topic at the intersection of science and/or technology with human rights."  More information is available here.

Betsy DeVos, Title IX and COVID19

By Prof. Justine Dunlap

It was the worst of timing.

The Trump Administration’s Title IX regulations governing sexual misconduct were issued in draft form in November 2018. A year later, word came that they would be released in final form in December 2019, along with leaked drafts of what the final regs would contain. This allowed a sneak peek into which of the more than 120,000 comments proffered during the notice and comment period were considered and incorporated, and which failed to budge the regulators. So those of us who follow these things were waiting for the regs to drop. Some waited with anticipation, some with dread, others perhaps with mere curiosity.

Then the coronavirus hit and the resulting COVID-19 illness required schools across all learning levels and ages to become vehicles of remote learning. Schools, including IHE, are continuing this mode of remote learning through the summer and are now considering what the Fall term will look like on campus—or whether it can even be on campus. Further, institutions of higher learning are undergoing significant financial challenges due to coronavirus closures. Layoffs and furloughs are inevitable.

Amidst this, on Wednesday, May 6th, the Title IX final regulations were released, with an implementation date of August 14, 2020 attached. So merits aside for a moment, the timing is abysmal. These regulations constitute a major shift in Title IX law in numerous ways. They require significant changes in how schools conduct hearings on alleged sexual misconduct. It will be extremely hard for IHEs to plan for the regs’ implementation from—quite literally—afar. Moreover, the staff needed to implement these new regs may be unavailable, perhaps because they have been redirected to deal with student COVID-19 related crises. The American Council on Education, eighteen state attorneys general, and at least three senators had asked the DOE to delay the already delayed final regulations until the COVID pandemic abated. Somehow, Secretary of Education Betsy DeVos’s response that “civil rights really can’t wait” is supremely unsatisfying.

Edging Toward Civil War - The Early Skirmishes

In February two Georgia white men attempted to abduct a black jogger.  When the jogger resisted  he was shot and killed. The prosecutor felt there was insufficient evidence to take the case to the grand jury.

This week a black security guard at a Family Dollar store in Flint, MI was shot in the of the back of the head for requesting that a customer wear a mask or not be served.  

The largest and most aggressive protest against sheltering regulations was in Michigan, a state with a female governor in a state where the city with highest cluster of CORONA 19 is Detroit, a primarily African American city.  

Today President Trump called on citizens to become warriors.  The LA Times reported:

"In recent days, he’s begun describing citizens as “warriors” in the battle against the pandemic and suggested some of those fighters might have to die if that will help boost the economy. "

About six months before his death, I had the privilege  of hearing Congressman Cummings speak.  An audience member asked what scares him most.  Mr. Cummings said that after listening to witnesses at the Michael Cohen hearings, what scared him most is what Trump means when he said that he would not go quietly.  

Assault rifles remain the weapon of choice. Gun sales are on the rise and the President is losing popularity. 

The signal has been given. 

  

Human Rights City Strategies for Protecting People's Rights and Dignity

The May 11th date for the U.S. Government UPR review has been postponed by the pandemic, and it is now scheduled for November 9th.  Likewise, the Gwangju World Human Rights Cities Forum, scheduled for May 17-20 in Korea, has been postponed to October.  

Happily, the UPR Cities Project has stepped in to fill the void.  Throughout the summer, the Project will be organizing monthly webinars to help local groups build capacities to use global human rights to amplify local work to protect people's rights and dignity.  First on the schedule:  

• Monday May 11: 4:00-5:15PM Eastern/ 1:00-2:15PM Pacific: Protecting People & Advancing Dignity Economies—Human Rights City Strategies

The May 11th date for the U.S. Government UPR review has been postponed by the pandemic, but in its place the UPR Cities Project is organizing a virtual gathering to help community advocates learn how to use the UPR review process to advocate for their communities.  Speakers will report on the world’s first national cities stakeholder report to the UN. Organizers from New Orleans, Washington DC, and Pittsburgh will show how the UPR can help local organizing. And speakers will address the Southern Mayors’ Human Rights Agenda and how it can help define the kind of post-COVID-19 city everyone needs.  Participants will learn about using the UPR process to organize locally and bring global pressure on national and local officials through the UPR Cities Project.

More information about how to participate in the webinar is available here.

Artificial Intelligence and the UDHR

Science fiction fans will be familiar with Isaac Asimov's three laws of robotics, designed to keep Artificial Intelligence actors from harming humans (think of HAL from 2001: A Space Odyssey): 

• A robot may not injure a human being or, through inaction, allow a human being to come to harm
• A robot must obey the orders given it by human beings except where such orders would conflict with the First Law
• A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws

But as AI has become more sophisticated, and the ethical challenges expand beyond harm to humans, scientists are looking elsewhere for ethical guides for AI.  One suggestion is that AI be designed to conform to the Universal Declaration of Human Rights.  In fact, Utopia Analytics, based in Finland, has published an ethical AI manifesto based on the UDHR. 

On the other side, UDHR cynics believe that the UDHR simply doesn't provide an adequate framework for resolving complex conflicts between human rights.  They offer more nuanced ethical analyses as an alternative that can resolve these conflicts.  But on the downside, these more nuanced analyses do not have the same universal buy-in that is enjoyed by the UDHR.  Further, ethical standards such as fairness are arguably more vague than the human rights principles that embody those concepts, and that have enjoyed years of application and interpretation.

At the very least, the UDHR and other human rights agreements can provide a starting point for the development of AI ethics.  As stated by Mark Latonero of Data & Society: "In order for AI to benefit the common good, at the very least its design and deployment should avoid harms to fundamental human values. International human rights provide a robust and global formulation of those values."  Where it goes from there remains subject to lively debate.