Human Rights at Home Blog

Event: 4/8 Effectiveness of the Convention on the Rights of People with Disabilities

Syracuse University Collaboration for Unprecedented Success and Excellence (CUSE) Grant program:

The CRPD was adopted by the UN in 2006 and has been ratified by 184 countries. This panel brings together leading international experts to discuss the effectiveness of the CRPD and whether and how it is making a difference in the lives of people with disabilities.

MODERATORS: Professor Arlene Kanter (Law) and Professor Audie Klotz (Maxwell)

• Dr. Gerard Quinn, UN Special Rapporteur on the Rights of Persons with Disabilities

• Judith Heumann, Civil Rights Advocate and Former Special Advisor for International Disability Rights at the US Department of State (2010-2017)

• Akiko Ito, Chief, Secretariat for the Convention on the Rights of Persons with Disabilities

• Silvia Quan, former member, U.N. Committee on the Rights of Persons with Disabilities and disability rights activist

• Eric Rosenthal, Founder and Executive Director of Disabilities Rights International

Friday, April 8

9 a.m. - Noon ET

Livestream: http://syracuseuniversity.zoom.us/j/92212151452

New Article: Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR

Paulina Lucio Maymon, Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR, American University International Law Review, Vol. 37: Iss. 1, Article 3 (2022). Abstract below.

Research suggests that when women commit an offense against another’s life, they often do it in the context of domestic violence. Nevertheless, state and federal courts in the United States continue to ignore or inappropriately consider female defendants’ histories of domestic abuse and trauma in their criminal trials for killing their abusers. Many courts in the United States taint female defendants’ criminal trials by injecting gender biases and stereotypes, which often leads to miscarriages of justice. This Comment argues that the United States has violated female defendants’ rights to equality before the law under article 26 of the International Covenant on Civil and Political Rights (ICCPR) through its courts, which have discriminated against them on the basis of sex in their criminal trials for killing their abusers. National and local statistics and the criminal trials of five women convicted and sentenced for killing their batterers are analyzed to prove this violation. The Comment provides recommendations to prevent future violations and to provide redress to the women whose human rights were infringed. Although this article focuses on the United States, it outlines a pathway for women in other jurisdictions to assert their rights to equality before the law, under the ICCPR, when courts judge them based on myths and stereotypes.

Mixed Emotions and the Kentanji Brown Jackson Confirmation Hearings

By Co-Editor Prof. Justine Dunlap

I did not listen or watch as various senators made opening statements on day one of the Senate Judiciary Committee confirmation hearings for the Honorable Ketanji Brown Jackson. Bloviating is one of the truly bipartisan activities left in Washington, D.C. However, I have tuned in for the question and answer portion. In a word, Judge Jackson is impressive. It is a pleasure to watch this master class in how to be calm, cool, and collected, possessed of extraordinarily broad experience and superior intellect.

However, this particular confirmation hearing is one where mixed emotions may prevail. Joy and excitement over the nomination of a Black woman to serve on the Supreme Court of the United States. At last, at long last. But there may be lament as well, particularly for women lawyers and law students of color, as the sadly inevitable challenges to a Black woman’s competence make the rounds.

The senators have not and will not directly make that claim.  Instead, some have quoted Dr. Martin Luther King, Jr. and pledged fealty to his principles. There has been, though, the predictable critical race theory dog whistle, complete with a misapprehension—intentional or otherwise—of the theory.

Those outside the Senate have not been so subtle. One of the most memorable highlights was a call for Judge Jackson to release her LSAT scores. Then came the statements surrounding President Biden’s intention to nominate an African-American women judge, asserting that seeking such long-over due representation was itself racist. And who can forget the tweet that Biden’s commitment would lead to the nomination of a “lesser [B]lack woman.” Stunning, really, as an assertion that President Biden could not find a Black woman nominee who would not be “lesser.”

Sadly, Black women have long known that they have to work twice as hard to be perceived to be just as good. In this historic moment I’d like to express my support for Black women law students who have had to hear yet again that those who look like them do not belong, are somehow not qualified. I cannot begin to understand the toll that takes but I want to acknowledge that it is real.

Celebrating World Water Day by Calling for Respect for Our Environment and Indigenous Communities

photo by Caroline LaPorte, Anishinaabe, Descendant and Associate Judge, Little River Band of Ottawa Indians; Director, Indigenous Safe Housing Center, NIWRC

By Cameron Ewing (Legal Intern), Samantha Johnson (Legal Intern), Braelyn Saumure (Student Fellow), and Tamar Ezer (Acting Director), Human Rights Clinic, University of Miami School of Law

The right to water is fundamental. As the UN General Assembly recognized, “the right to safe and clean drinking water and sanitation” is “a human right that is essential for the enjoyment of life and all human rights.” Victoria Sweet from the White Earth Band of Ojibwe echoed, “the right to resources and the right to water are critical to the right to life.”

Today, as we celebrate World Water Day, we must take a hard look at how we’re treating the environment, as well as Indigenous communities who are frequently its defenders. All too often, the construction of gas pipelines threatens the availability, accessibility, and quality of water, required under international human rights law.

Moreover, human rights law recognizes a link between the right to water and culture. While domestic uses of water take priority, the UN Committee on Economic, Social and Cultural Rights affirms the importance of water for “enjoying certain cultural practices” and securing a livelihood. Non-consumptive uses of water crucial to Indigenous communities include its centrality in a biological habitat, its spiritual value as a source of healing, and its aesthetic value.

Indigenous advocates point to the environmental degradation pipelines cause on Indigenous lands. Angeline Cheek, a Fort Peck tribal member and ACLU organizer in Montana, stated, “pipelines cross our reservations, causing destruction to our environment and our people. We can’t live without water, and you cannot replace a life.” A teenage Indigenous protest leader explained, “When the pipeline breaks, it would not only affect us as a people, but the animals and aquatic life would be impacted too.  Basically, everything that my people value and care for is at great risk of being harmed.”

The construction and operation of the pipeline also brings violence, including sexual violence, against members of nearby Indigenous communities. The hundreds—or even thousands—of male transient workers brought in to work on the pipeline construction, often housed in temporary housing communities referred to as “Man Camps,” have targeted Indigenous communities and women. Studies of the Bakken oil region have noted a 75% increase in sexual assaults and a 53% increase in violence committed by strangers that coincided with the oil boom and the influx of “well-paid oil and gas workers, living in housing units referred to as Man Camps.”

Even worse, these perpetrators often face no repercussions for their actions. Local infrastructure is strained from the influx of workers, without the provision of increased resources to health services and law enforcement, who already have large geographic regions to cover. Additionally, there is an enforcement loophole with Indian tribes lacking jurisdiction to prosecute non-Indigenous defendants. This requires reliance on the federal government, which often fails to take action. There is thus a general lack of accountability, and crimes are committed with impunity.

While the Violence Against Women Act (VAWA) helps address some jurisdictional problems, this legislation does not go far enough to protect Indigenous Peoples from non-native offenders. VAWA only authorizes “special domestic violence criminal jurisdiction” to tribal courts for offenders who commit “(1) domestic violence, (2) dating violence, or (3) violate a protective order.” These limitations mean that the non-native offender must have connections to the tribe, which is often not the case for violence perpetrated by workers at Man Camps given their temporary nature. Furthermore, the special jurisdiction does not include the crime of sexual assault when unconnected to domestic or dating violence.

Halting the Keystone Pipeline is a step in the right direction. The pipeline was set to traverse nearly 875 miles of rural land in the Northern U.S., crossing major waterways, such as the Missouri and Yellowstone Rivers, and passing through Rosebud Sioux and Fort Belknap Indian Community lands in Montana, threating sensitive ecological and cultural areas. Years of legal battles and protests from Indigenous Peoples were finally heard when the Biden Administration’s Executive Order conceded that the Keystone XL Pipeline “disserves the U.S. national interest” and revoked its permit, ending construction.

Indigenous Peoples have widely praised the Order. Angeline Cheek noted, this Order “is about honoring our ancestors’ treaties and protecting our natural resources.” Faith Spotted Eagle, founder of the Brave Heart Society and a member of the Ihanktonwan Dakota nation, remarked, “victory ending the KXL pipeline is an act of courage and it gives tribes and Mother Earth a serious message of hope for future generations as we face the threat of climate change.”

Now, we need to build on Biden’s Executive Order and put in place better policies. International human rights law requires the “free, prior, and informed consent” of Indigenous Peoples as a prerequisite for use of Indigenous land and resources. Meaningful consultation is critical, but it is not enough. There must also be consent. Additionally, Indigenous Peoples need the resources to invest in infrastructure, as well the authority to prosecute non-Indigenous perpetrators on their lands, eliminating the jurisdiction loophole.

As we celebrate World Water Day, let’s move towards a greener and safer future, respecting both the environment, as well as the communities physically and culturally connected to the earth’s resources.

Florida’s “Don’t Say Gay” Bill and Conditional Progress

By Co-Editor Prof. Jeremiah A. Ho | 何嘉霖 | 副教授

In the very first episode of Netflix’s House of Cards, when the upstart journalist Zoe Barnes, played by Kate Mara, guesses correctly that the new presidential administration’s first legislative agenda was an education bill, she succinctly reasons that it’s because “Everyone can get behind children.”

On the surface, standing behind children is the motivation behind the passage of Florida’s recent “Parental Rights in Education” Bill (House Bill 1557)—or more colloquially-dubbed, “Don’t Say Gay” Bill. As many have noted, the bill is not written clearly. Here, I’ll summarize a few key things that it tries to accomplish:

• Limits on teaching gender and sexuality in all grades
• Parental notification when children receive services covering mental, emotional, or physical health with exceptions for circumstances where school officials believe a risk of abuse, abandonment, and neglect exists
• Opt-out option that allows parents to pull their children from counseling and health service
• Legal recourse for parents if schools violate House Bill 1557

The Florida state legislature passed the bill a few weeks ago and Governor Ron DeSantis is expected to sign the bill into law. In its passage, however, genuine protection of children is not really the intent behind the bill. But it’s rather animus against LGBTQ+ people and their lived experiences, and protectionism of a discriminatory heteropatriarchal status quo.

We’ve been down this road before. Such anti-gay curriculum laws or “No Promo Homo” laws aren’t new. This is not the first time that legislatures have doubled-down on education to erase or stigmatize queer youth and identities. There’s also a likely connection here to the flurry of anti-CRT legislation that caught traction in state houses nationwide recently. Analyzing these legislations separately is probably less resonate and effective than seeing these efforts as closely-twined to one structural offense—one massive race-gender-sexuality project of our settler colonial condition: white heteropatriarchy.

The other observation I have here is the cognitive dissonance that seems to appear with this bill in an era that is supposedly more gay-friendly than ever before. But a closer scrutiny would show us that the mainstream’s “gay-friendliness” is conditional. So there is no true dissonance here. Yes, queer and trans people have some extraordinary visibility these days and enjoy some great legal recognition in their lives and relationships. Last weekend, as I showed some out-of-town friends the bohemian spectacle of Venice Beach in Southern California, we kept seeing same-sex couples holding hands as they strolled down the boardwalk—something I doubt I would have seen 20 years ago, even in blue-state California. But such progress has qualifications. One most glaring shortfall is how many of the major LGBTQ+ advancements in recent years have obtained legal recognition and protections for queer identities without more substantial normative follow-through. Professor Kathrine Franke’s criticism of Lawrence v. Texas as “domesticated liberty” comes to mind as an example. While Lawrence decriminalized same-sex intimacy, the Supreme Court’s 2003 ruling brought queer sex into a sanitized, domesticated sphere that resembled more stereotypically “conventional” heteronormative relationships. The recent 2020 Title VII decision, Bostock v. Clayton County, that brought SOGI employment protections under Title VII’s “because of sex” category is another example of what I mean. The ruling created SOGI protections simply through Justice Gorsuch’s textualist reading of “because of sex.” However, the decision lacked any frank discussions that would externalize the values of inclusiveness or would unveil the harms placed upon marginalizing queer lived experiences in the workplace. It obtained employment protections for LGBTQ+ people without discussing LGBTQ+ queer lived experiences. Bostock “didn’t say gay” in that sense. That silence in Bostock, like Lawrence’s “domesticated liberty,” serves—even if unintentionally—to preserve the norms of a heteropatriarchal status quo. Thus, queer visibility and progress are limited and conditioned on establishment terms.   

Conditional progress is why Florida’s “Don’t Say Gay” Bill and the new wedding vendor case (303 Creative LLC v. Elenis) being heard next term at the Supreme Court both appear to me as déjà vu. We’ve been down this road before (and before). Progress is on the status quo’s terms. The conversation is being controlled from there. 

A lot of critical discussion has been raised about the harms and legalities of Florida’s “Don’t Say Gay” Bill. Such harms and legalities are both funneled into the bill’s vagueness on key operative terms and how the bill would be interpreted in practice. For instance, inconsistencies with the bill’s scope between its preamble and text poses much confusion. The preamble states that the goal of the bill is to preclude “classroom discussion about sexual orientation or gender identity.” Yet, the text of the bill provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur.” Would it put a schoolteacher in a same-sex marriage in violation with the bill if he were to accidentally reveal the gender of his spouse in a classroom conversation? Ian Millhauser poses answers to this hypothetical in his article at Vox (https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents). And would such vagueness pass constitutionally muster? Millhauser says not likely. But aside from these practical and legal considerations, the design of this proposed law is clear and unwavering. The bill prolongs mainstream debate about the lives of queer and trans people while simultaneously bullying, marginalizing, and silencing them. It reveals that our recent legal advancements have not gone far enough—and may never go far enough—so long as the norms of heteropatriarchy are not simultaneously challenged when these advances occur. That might be a tall order for legal strategists. But without it, we will continue to go down the same roads over and over again.

Texas Judge: Transgender Care is Not Child Abuse

By Co-Editor Prof. Justine Dunlap

About 34 states have introduced legislation that in some way restricts transgender youth from receiving appropriate health care. These legislative acts, if moved forward into laws, will kill people. They could result in death even short of becoming law. Trans youth have rates of depression and suicide that are 2-3 times higher than non-transgender youth. That is data prior to the pandemic, which has wreaked havoc on the mental health of youth across the board. Thus, living in a state that criminalizes the ability to access appropriate health care could have catastrophic impact on the lives of transgender youth. That’s first level heinousness.

Then there are the effects on those targeted by these bills. The bills may require that parents and health care providers be reported and investigated as child abusers. Parents and health care providers deserve praise not prosecution. Criminalizing them is also first level heinousness.

Most of the bills have not (yet) moved out of the legislature to become law. That’s what happened in Texas last spring, when the Texas legislature did not pass a bill illegalizing transgender care. Governor Greg Abbott, however, was not deterred. Last month he sent a letter to the state Department of Family and Protective Services instructing it to investigate as child abuse the act of providing or securing gender appropriate care.

Thank goodness, then, for Judge Amy Clark Meachum, a Texas state court judge who, on March 11, temporarily enjoined enforcement of this gubernatorial mandate. Judge Meachum enjoined this directive because, she opined, there is a substantial likelihood that it is ultra vires and unconstitutional. Also enjoined are the rules made and implemented by the Department of Family and Protective Services pursuant to Abbott’s directive.

Shortly after the ruling, the Texas attorney general asserted that the investigations would continue because he would appeal the decision.  The trial on the merits is set for July 11, 2022, but much legal wrangling seems inevitable before then. Lawyers and judges are used to such squabbles so the real fallout will be experienced by the transgender youth whose lives and very worth are being litigated.

News: In US v. Husayn (Abu Zubaydah), the Supreme Court Calls Torture What It Is

Joseph Marguiles, In US v. Husayn (Abu Zubaydah), the Supreme Court Calls Torture What It Is, Just Security (March 11, 2022). Excepts below.

"As I read the decision, Abu Zubaydah can rely on 28 U.S.C. Sec. 1782 to depose the architects of the CIA torture program, James Mitchell and Bruce Jessen, about what they saw, did, smelled, heard, and said – in short, about whatever their senses revealed to them – between December 2002 and September 2003, in support of a foreign criminal investigation underway in Poland."

[...]

"There is a space where conservative and liberal voices join. It is the belief that government service is a privilege, but only when government is honorable. When elected leaders betray their allegiance to the law and abandon their faith in the cleansing power of the truth, they must find no quarter in the Court."

New Article: Human Rights Originalism

Katharine Young, Human Rights Originalism, Georgetown Law Journal, Vol. 110, No. 5 (2022). Abstract below.

Are human rights to be found in living instruments and practices that adapt to changing circumstances, or must they be interpreted according to their original meaning? That question, so heavily debated in the context of the rights of the U.S. Constitution, was never seriously on the table until 2020. But when former Secretary of State Mike Pompeo called for “fresh thinking” about human rights, and its connection with “our nation’s founding principles,” he brokered a return to two landmark instruments of human rights—the Declaration of Independence of 1776 and the Universal Declaration of Human Rights of 1948. His Commission on Unalienable Rights obliged, presenting the familiar tropes of fixed sources, venerated authorship, and national identity, in order to accomplish a drastically different presentation of the meaning of human rights. The end result is an act of fusion—the powerful political and cultural valence of America’s constitutional originalism, applied to the human rights of American foreign policy.

This Article identifies this innovation as “human rights originalism.” Although the Report of the Commission on Unalienable Rights has, at least for now, been shelved, human rights originalism may be one of the most enduring legacies of the Trump Administration. As an interpretive theory, human rights originalism promises many of the same benefits as its constitutional counterpart—simplicity, popular reach, and control of rights’ unruliness and proliferation—this time wrested from unaccountable United Nations institutions and experts rather than courts. As a substantive departure from contemporary human rights, human rights originalism elevates the importance of religious freedom and property rights, and provides a selective diminishment of women’s rights, LGBTQ+ rights, and racial equality, mirroring and further cementing current trends in originalist constitutional doctrine. The four standard epistemic communities that supply “meaning” to human rights—in the international, comparative, transnational, and philosophical domains—are all rejected by originalism, just as those domains are themselves inimical to it.

This homegrown form of human rights argument is significant for human rights law and foreign policy, but so too is it significant for originalism itself. In propelling originalism into the uncompromisingly global domain of human rights, originalism’s proponents expose the nationalism and exceptionalism that are perhaps its most unsettling features. At the same time, originalism’s own malleability is highlighted in its adaptiveness to the modern administrative state and the promises of the postwar period.

 

Texas Politicians Confuse Parental Support of Gender-Affirming Care with Child Abuse

By Bailey Bickford, 2L and Research Assistant at the Program on Human Rights and the Global Economy (PHRGE) at Northeastern Law

After two bills that would have banned gender-affirming care for trans youth in Texas did not pass the state’s legislature last year, Texas politicians took the matter into their own hands. Governor Greg Abbott (R), State Representative Matt Krause (R), and Attorney General Ken Paxton are plowing ahead and attempting to label gender-affirming care as child abuse under chapter 261 of the Texas Family Code.

In a February 18 opinion issued at the request of Representative Krause, Attorney General Paxton stated that puberty-blockers and hormone replacement therapy are not medically beneficial and can constitute child abuse under Texas law. In addition, he falsely equated gender-affirming care and non-consensual sterilization, claiming that these treatments deprive children of their fundamental right to procreate.

In response to Attorney General Paxton’s opinion, Governor Abbott ordered the Texas Department of Family and Protective Services (DFPS) to open child abuse investigations into the parents of children who are “subjected to these abusive gender-transitioning procedures.” He also ordered the investigation of medical facilities known to provide this care. Governor Abbott’s order has been condemned by organizations including The Texas Pediatric Society, The American Academy of Pediatrics, and The National Association of Social Workers.

Neither Attorney General Paxton’s opinion nor Governor Abbott’s order are legally binding, and five Texas District Attorneys have publicly stated they will not enforce the order. While the opinion and order carry no legal weight, they increase already rampant transphobia and create more challenges for Texas youth who have been diagnosed with gender dysphoria. Furthermore, the Attorney General and Governor’s actions have created panic among young people in Texas, who fear they will be separated from their loving and supportive families by the DFPS and lose access to the care they need from their doctors.

The ACLU has filed a law suit challenging Governor Abbott’s order to the DFPS. The plaintiffs include Mary Doe, a minor who has been undergoing gender-affirming care, her mother and father, and Dr. Megan Mooney, a psychologist whose clients include a number of trans youth in Texas. Mary Doe’s mother is employed by the DFPS and has been placed on leave while the family is investigated by her employer because of her daughter’s ongoing care. The ACLU argues that Governor Abbott’s order creates a Catch-22 for Dr. Mooney and others in her position. Under the Governor’s order, healthcare providers would face severe penalties for failing to report clients who come to them for gender-affirming care but stopping care and reporting these clients would violate ethical and professional obligations to cause no harm.

The ACLU’s petition also highlights the chilling effect of the Governor’s order. Parents feel unsafe sending their children to school or to the doctor’s office because they would encounter mandatory reporters, who are obligated to report “child abuse.”  Some doctors have ceased prescribing gender-affirming care for fear of the professional and criminal consequences. Texas Children’s Hospital, the nation’s largest pediatric hospital, has stopped providing gender-affirming care in response to the order.

On March 2, a Travis County judge granted a temporary restraining order (TRO) that enjoins the state from continuing the child abuse investigation of the Doe family, citing the irreparable harm that the investigation would cause the family. The TRO also enjoins the state from taking any action against Dr. Mooney. Attorney General Paxton promptly appealed the decision.

The Governor’s stated intention of protecting young Texans is intellectually dishonest. He desires to weaponize the DFPS and use it as a tool to break up families and send trans children into foster care, where their mental and physical health are virtually guaranteed to suffer. He further desires to coerce doctors into acting against their own ethical obligations. The Governor is using his position of power to promote a transphobic agenda that is traumatizing trans youth in his state.

Members of the cis-gendered male political elite seek to use their platforms to enshrine patriarchal norms into the legal system in order to protect their own privilege. A privilege that is seemingly so fragile that their enemy of choice is children.

Decisions about medically necessary and often life-saving gender-affirming care must be left to families and their doctors. LGBTQ+ advocacy organizations in Texas, which will be working hard in the coming weeks to protect this principle, could use your support. The status of transgender individuals and the law varies state to state and issues such as access to gender-affirming care have become battle grounds in several states, including Texas and Arkansas.

Trans kids matter.

New Article: Group Rights and Individual Minority Rights in Immigrant Societies, Then and Now

David Abraham, Group Rights and Individual Minority Rights in Immigrant Societies, Then and Now (2021). Abstract below.

The history of the past century or more suggests that “peoples,” however defined, may have their present and future collective needs realized in one of three ways. They may aspire to their own titular state, self-determination, where they predominate and act collectively; they may rely on the recognition and provision of reliable collective minority rights (with greater or lesser autonomy in a more or less territorially-defined multi-peopled space); or they may advocate for a regime of strong “liberal,” non-discriminatory individual rights for all in which (significantly weakened) collective identities are lodged in the private sphere. Not every option is equally available to all peoples; they face different hurdles as they themselves inevitably evolve over time from disparate starting points and with different strengths and weaknesses. Indigenous minorities, religious minorities, racial minorities, immigrant minorities, etc. will inevitably approach their situations differently from each other and in different concrete situations. Nonetheless, these three patterns –self-determination, guaranteed minority rights, and universalist individual rights—define the terrain on which struggles take place.