Human Rights at Home Blog

News: UN Special Rapporteur on Racism Issues Statement Following United States Visit

The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Ashwini K.P, has issued her official statement following her two-week visit to the United States this past month. She visited Washington D.C., Detroit, MI, Flint, MI, Los Angeles CA, Baton Rouge, LA, and Atlanta, GA, where she met with federal and state authorities, individuals from racial and ethnic groups, civil society organizations, service providers, academics, and other stakeholders to get a full picture of the state of racism in the United States.

In her press conference on November 14, 2023, Ashwini implored the U.S. government to “increase its efforts to address enduring systemic racism,” and expressed shock at how deeply the system of racism runs in every state she visited, and how these systems continue to reinforce themselves. She cited testimonies she received from members of racially marginalized groups, which detailed voter disenfranchisement, homelessness, environmental racism, racially discriminatory food systems, inequitable healthcare and health outcomes and discriminatory migration governance systems. Ashwani warned that the U.S. needs to increase and improve its anti-racism efforts, and further address white supremacy, underlying power imbalances, and historical drivers of racism and racial discrimination.

Read the UN’s press release here. Read the Special Rapporteur’s full statement here.  

Event 6/1: Congressional Black Caucus Institute, ACLU and SPLC side event during the 2nd session of the Permanent Forum on People of African Descent

On Thursday June 1, 2023, at 6:15pm ET, the Congressional Black Caucus Institute, ACLU and the Southern Poverty Law Center are jointly hosting a side event during the 2nd session of the Permanent Forum on People of African Descent.  The U.S. has long promoted human rights abroad, but largely fails to incorporate its own international human rights commitments into domestic law or policy. This side event will explore why and how NHRIs are essential to fulfillment of human rights of people of African Descent, obstacles caused by the lack of a U.S. NHRI, and best options for the U.S. to move toward joining its allies and UN member peers in creating an NHRI.

To join this side event via zoom, register at https://splcenter-org.zoom.us/j/6105889743.

U.S. Anti-Black Immigration Policies are The Afterlife of Slavery

By: Gabrielle Thomas¹ and Denisse Córdova Montes

In 1808, the U.S. abolished the transatlantic slave trade, but today, the semiotics of the slave ship continues through forced movements and separations of migrants and refugees. Slave codes sustained through immigration laws and policies of both political parties endlessly reignite the generational trauma of forced removal. At a thematic hearing at the 186^th Period of Sessions of the Inter-American Commission of Human Rights (IACHR), the Human Rights Clinic at University of Miami School of Law (HRC), alongside Haitian Bridge Alliance (HBA), RFK Human Rights (RFK), and University of Pennsylvania Transnational Legal Clinic (UPenn TLC), provided testimony of systemic racism committed by ICE officials against Haitian immigrants. At the hearing, we argued that the U.S. government’s treatment of Black migrants is discriminatory and in violation of the American Declaration on the Rights and Duties of Man, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The U.S. government responded with an evasive claim of racially equitable practices within their immigration system.

Black Immigrants Face a Double Jeopardy of Being Both Black and Immigrants

The U.S. government’s lack of transparency about its racist practices, despite public and frequent documentation of the disproportionate negative treatment of Black immigrants, remains of the upmost concern.  Black immigrants face a double jeopardy of being both Black and immigrant. They are stopped, questioned, arrested, and deported at disproportionate and higher rates. Black persons, more generally, are five times more likely to be stopped without cause than a white person. The racism of the militarized criminal justice system spills over into their immigration system creating a prison-to-deportation pipeline. In our hearing with the IACHR, Daniel Tse of HBA and RFK highlighted that, “though [Black migrants] are less than 6% of the undocumented population, they make up more than 20% of the immigrant population facing detention and deportation on criminal grounds.” Furthermore, “76% of [Black migrants] are deported because of contact with the police and the criminal legal system.”

Haitian Immigrants Face Heightened Discrimination in the Immigration System and are Deported to Conditions Tantamount to Torture

Haitian migrants, in particular, face heightened police harassment, heightened state monitoring, heightened unjust immigration enforcement, and harsher prosecution. Once arrested and put into ICE custody, Haitian migrants must pay higher bonds for release than other migrants in detention. These migrants also serve longer sentences in ICE custody and face a heightened risk of deportation. For black migrants, speaking out results in retaliatory violence from ICE officers and retaliatory transfers to distant facilities and unfamiliar lands.

Recently, our clinic documented conditions tantamount to torture in Haitian prisons, where recently deported individuals were detained upon arrival in Haiti. Once deported to Haiti, migrants were detained indefinitely, inflicted with severe pain and suffering, and faced heightened persecution, extortion, and harassment for being and sounding “American”. Many of these Haitians know no other home than America where their family reside. James – a man previously deported to Haiti – faced crippling discrimination as a “deep” – slang for deported individual – and encountered violations of his rights to work, health, family, food, and security while encountering gang kidnapping and brutality. Despite the horrors James faced, when questioned about the conditions he endured after deportation, James expressed his need to simply see his children. Before the U.S. deported James, he provided for his two daughters and remained a devoted father. He stressed that one of his daughters turns sixteen this year, but “they took [my] kids away,” and he is down in Haiti struggling

The U.S. Has a Long History of Anti-Black U.S. Immigration Policies

Forced movement and separation of Black migrants did not start with Trump era politics nor did they cease with the emancipation proclamation. The practice of ruthlessly ejecting Black persons from the U.S. started before the Civil War. Since the Haitian Revolution of 1791-1807, the U.S. has implemented anti-black immigration policies to prevent the unfavorable freed Black persons from coming into this country. The liberation of Haitians from French occupation nearly two thousand miles away, fueled Thomas Jefferson to pass a bill in 1803, prohibiting any “Negro and mulatto” migrants. During this total ban on Black migrants in the country, in the 1857 Dred Scott Dred Scott v. Sanford case, Mr. Scott and Mrs. Scott argued that after their perilous journey from chattel slavery to safety, they have a right to stay free and citizens. This 11-year struggle reaffirmed 1803 race-based restrictions on migration ending with the Supreme Court ruling that Mr. and Mrs. Scott, were not citizens and as, “a negro, whose ancestors were imported into [the U.S.], and sold as slaves, whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court.”

Forced Movement and Separation of Black Families Should Come to an End

The widespread emancipation of Black peoples throughout the Americas in the late nineteenth century further ignited racist and xenophobic sentiments. The Calvin Coolidge Administration implemented the Immigration Act of 1924 which turned away Black migrants with a nationality-based quota system that favored European countries. The U.S. executive branch continued to implement excessive anti-Black immigration policies under the Carter, Reagan, H.W. Bush, and Clinton administrations.

Today, the disproportionate treatment of Haitian migrants continues. Like the Immigration Act of 1924 with nationality-based quota system that preferred European countries, the Biden administration expelled nearly 20,000 Haitians the same year he extended protections to as many as 180,000 Ukrainian migrants. In 2021, confirming that U.S. border policies still operate to create a racial double-standard, the U.S. government decided to exempt Ukrainians from the Title 42 Policy that led to Homeland Security riding on horses into crowds of Haitian refugees with whips on December 6, 2021 exhibiting  modern-day “Slave Patrol”.

The afterlife of the slave ship lives in policies that dehumanize Black migrants by disproportionately persecuting them and knowingly sending them to their torture and death.  Newly obtained documents revealed that high-ranking ICE officials directly involved in the mass deportation of Black migrants felt disdain for Africa, disregard for Black migrants, and hostility towards immigrant rights activists. Who gets to be human in crisis?  All migrants have a right to be treated with dignity. The disproportionate treatment of Black migrants and Haitians must come to an end and the U.S. should stop deportations to Haiti.

¹Gabrielle Thomas is a rising 3L student at the University of Miami School of Law. She served as a Human Rights Clinic law intern as a 2L.

UN experts call for new approaches to policing in the United States following deaths of Keenan Anderson and Tyre Nichols

On Friday, February 10, 2023, experts from the United Nations expressed grave concern over the January 3, 2023, death of Keenan Anderson at the hands of the Los Angeles Police Department and the death of Tyre Nichols on January 10, 2023, three days after he was beaten by police in Memphis, Tennessee.

“The brutal deaths of Keenan Anderson and Tyre Nichols are more reminders of the urgency to act,” said Yvonne Mokgoro, Chairperson of the UN International Independent Expert Mechanism to Advance Racial Justice and Equality in the context of Law Enforcement.

The experts have sought detailed information on both the Anderson and Nichols incidents from the Government of the United States, on the ongoing investigations and regulations applicable to the use of less-lethal weapons vis-à-vis applicable human rights standards.

In both cases, the experts stressed that the force used appears to have violated international norms protecting the right to life and prohibiting torture or other cruel, inhumane or degrading treatment or punishment. It is also not in line with standards set out under the United Nations Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

A full press statement regarding the Committee’s findings can be found here.

Event 11/1: Can the United Nations Solve Racism? Symposium on the Global Anti-Racism Architecture of the UN

On Tuesday, November 1, 2022, from 5:30 – 7:30pm EST, join Fordham University School of Law’s Center on Race, Law, & Justice and Leitner Center for International Law and Justice for a discussion and reflection on the United Nations General Assembly’s session addressing racial discrimination, which will take place the day before. This event will be moderated by Gay McDougall, and the distinguished panelists include E. Tendayi Achiume, Gaynell Curry, Dominique Day, Justin Hansford, Justice Yvonne Mogkoro, and Verene Shepherd. The panelists will discuss anti-racism mechanisms of the UN and reflect on the new anti-racism architecture of the UN human rights system. Attendance for the event is available both in-person in Fordham Law’s McNally Amphitheater and online via Zoom Webinar.

To register for this event, click here.

Event: 7/23-7/25 Decriminalizing Neighborhoods Virtual Conference

From July 23-25, 2021, a multi-faceted virtual conference will be held to bring together advocates, community organizers, academics, practicing lawyers, community leaders, and others to discuss the policing and criminalization of neighborhoods.  The Conveners of the conference include =the Earl B. Gilliam Bar Association, Pillars of the Community, Community Advocates for Just and Moral Governance (MoGo), The UC Irvine Law School Criminal Justice Clinic, and Detours Mentoring Group, Inc., San Diegans for Justice, and the Peace and Justice Law Center.

Scheduled presenters include:

• Alex S. Vitale, Policing and Social Justice Project, Brooklyn College
• Alex Scott, University of California, Riverside
• Babe Howell, CUNY School of Law
• Blinky Rodriguez, Communities in Schools
• Dave Smith
• David Brotherton, John Jay College of Criminal Justice
• David Pyrooz, University of Colorado Boulder
• Fareed Hayat, CUNY School of Law
• Francisco Romero, CORE
• Gaby Hernandez, Chicanxs Unidxs
• James Nelson, Dignity and Power Now
• James Spady, Soka University of America
• Jose Valle, Silicon Valley De-Bug
• Kevin “Twin” Orange, Advocates for Peace & Urban Unity
• Kimberly Howard
• Lex Stepling, Dignity and Power Now
• Melvyn Hayward, Chicago CRED
• Meredith Manchester Esq.
• Michael Saavedra, Youth Justice Coalition
• MK Kaishian, Brooklyn Defender Services
• Nalya Rodriguez, University of California, Irvine
• Robert Weide, Cal State Univ. Los Angeles
• Sean Garcia-Leys, Peace and Justice Law Center
• Skipp Townsend, 2nd Call
• Taylonn Murphy Sr., Tashana Chicken Murphy Foundation
• Tina Padilla, Breaking Through Barriers to Success
• Urban Peace Institute

For more information and to register for this conference, visit https://decriminalizingneighborhoods.org/

The early bird conference pricing ends July 5th.

New Article: Transnational Racial (In)Justice in Liberal Democratic Empire

E. Tendayi Achiume, Transnational Racial (In)Justice in Liberal Democratic Empire, 134 Harv. L. Rev. F. 378 (2021). Introduction excerpt below.

"On June 17, 2020, Philonise Floyd addressed the United Nations Human Rights Council, the United Nations’ paramount human rights body, demanding justice for the murder of his brother and the many other Black people who have been subject to the regime of racial extrajudicial killings endemic in the United States. His testimony was part of a remarkable “Urgent Debate” — an emergency special session of the Human Rights Council reserved for extreme human rights situations. We might think of this Urgent Debate as marking a pivotal global moment in the transnational racial justice uprising that coalesced under the banner “Black Lives Matter” during the northern hemisphere summer of 2020. This Urgent Debate was unprecedented for a number of reasons. It was the first triggered by a human rights situation in a, if not the, global hegemon of our time, the United States. It was also the first and only to date concerning a human rights crisis in a country widely considered a liberal democratic paragon, for which the global human rights receivership processes, implicitly associated with U.N. intervention, could not possibly be intended or appropriate, at least from the perspective of other liberal democratic countries and observers. And finally, it was the first and only explicitly framed as concerning systemic racial injustice and anti-Black racism in a First World nation-state."

 

 

The Role of Local Governments in Treaty Body Reporting

By Mary Hansel, UC Irvine School of Law 

As this blog has highlighted, the U.S. recently submitted its country report to the U.N. Committee on the Elimination of Racial Discrimination (CERD). Notably, the report contains scattered references to county and city governments and their activities related to racial justice. The report mentions the role of these governments in addressing issues such as hate crimes, maternal mortality, environmental justice and police use of force—indeed, local governments are often on the front lines of such issues. Yet there is no meaningful assessment of their human rights records, nor any indication that they submitted information or analysis for the current reporting cycle. This absence is not surprising given that local governments in the U.S. have rarely engaged with treaty body reviews.

Several international and domestic sources, however, lend support for the idea that local governments should be active participants in these reviews. The texts of the core human rights treaties ratified by the U.S., including the International Convention on the Elimination of All Forms of Racial Discrimination, make clear that each treaty’s obligations apply throughout all levels of government. In their Concluding Observations, treaty bodies have underscored the pervasive reach of these obligations; for example, CERD has emphasized that the U.S. “is bound to apply the Convention throughout its territory and to ensure its effective application at all levels, federal, state, and local.” Meanwhile, the so-called “federalism understanding,” which the U.S. has attached to treaties upon ratification, demonstrates Congress’ intent to carve out distinct roles for local governments in treaty implementation.

Additionally, in 2019, the U.N. High Commissioner for Human Rights issued a report on the importance of local governments in protecting and promoting human rights. The report concludes that “more sustained engagement by local governments is required, particularly with the United Nations human rights protection system.” To this end, the report explicitly calls for local governments to be “more engaged in both State preparations for and State delegations attending the sessions of . . . the treaty bodies” and to supply information “for inclusion in national reports submitted to the human rights mechanisms.”

Moreover, at least one U.S. state has passed legislation laying the foundation for local reporting to treaty bodies. In California, the legislature passed a 2010 Concurrent Resolution urging local governments within the state to report on their human rights efforts. The Resolution acknowledges that the ratified treaties require reports from all levels of government and, thus, treaty bodies “expect to receive information at the local level in all future United States reports.” Accordingly, the Resolution directs the California Attorney General to distribute templates for use by counties and cities in preparing their reports.

These sources provide a basis for local governments to step into their roles of front-line human rights actors and actively participate in treaty body reviews (as well as the Universal Periodic Review). Their participation could yield substantial benefits, including: giving treaty bodies a more complete understanding of the human rights landscape across jurisdictions, promoting human rights transparency and accountability within local governments and helping to foster a robust and widespread human rights culture in the U.S. In light of such benefits, human rights advocates might consider exploring ways in which they can encourage local governments to engage with treaty body reviews and support them in doing so.

The Uneasy Detente of Fulton v. City of Philadelphia

By Shirley Lin, Co-Editor

On Thursday June 17, 2021, the Supreme Court issued its ruling in Fulton vs. City of Philadelphia, extending a temporary legal detente as religious groups seek to advance counter-rights in response to widespread recognition of the rights of LGBTQIA+ communities.  The City had ceased to contract with a Catholic agency, Catholic Social Services, once CSS acknowledged that it discriminates against same-sex couples when certifying families for foster-care children.  Philadelphia justified the refusal on the non-discrimination provisions in its contracts and its own anti-discrimination law.  CSS challenged this decision as a violation of the Free Exercise Clause of the First Amendment.  

In a unanimous decision the Court agreed with CSS, but on narrow grounds specific to the contract's inclusion of exceptions and the City's denial of an exception to CSS.  Yet the Justices also signaled that the City "discriminate[d] against religion," in a turn reminiscent of Masterpiece Cakeshop.  Put less acerbically, of course, the City declined to contract with an agency that discriminated in violation of civil rights law.  The Court avoided weighing in on this central question, as it declined CSS's invitation to overrule precedent that generally upholds anti-discrimination laws that may conflict with religious practice if the law is generally applicable (Employment Div., Dep't of Hum. Res. of Ore. v. Smith).  Fulton leaves civil rights susceptible to future attack, as its splintered concurrences hint at the fragile compromise of the final opinion.

At least five Justices (Barrett, Kavanaugh, Alito, Thomas, and Gorsuch) would overrule Smith, although two (Justices Barrett and Kavanagh) would reject the categorical approach of applying the precedent that existed before Smith deferential to religion.  Justice Breyer declined to join the portion of Justice Barrett's concurrence that argues that the Free Exercise Clause should not be limited to a negative freedom from discrimination, but concurred in her discussion of the difficulty of replacing Smith.  

Also concerning is that, by upholding the ability of this religious agency to access government contracts to vital social services, Fulton does not prevent future religious entities from discriminating on the basis of race, disability, and other grounds.  It requires no stretch of the imagination to consider a locality where (unlike Philadelphia) religious social service contractors predominate in delivering vital social services.  Fulton leaves the Court in the dubious position of deciding the acceptability of social harm, at a time when it has openly shifted its baseline for neutrality.

Seen and Heard Beyond The Covid-19 Hate Crimes Act

By Jeremiah A. Ho | 何嘉霖 | 副教授

In one of my last Zoom office hours session following this pandemic year of teaching, a Korean-American student in my contracts course signed off by giving me a warning wrapped in sincere advice—and it wasn’t about being safe from Covid during this part of the pandemic. “Professor,” she said after we were done discussing how to calculate expectation damages, “When you go outside this summer, will you please remember to carry some pepper spray with you?”

I had been expecting to wish her a safe and happy summer after her finals.  Instead, she was reminding me to defend myself from an anti-Asian attack in public.  The irony that this exchange came about during Asian American Pacific Islander Heritage Month doesn’t escape me.  In a previous year, I suspect we might have been less pensive. 

Last week—while again during the same AAPI Heritage Month—Congress and the White House cleared through the Covid-19 Hate Crimes Act.  The Act was a direct response to the rise in anti-AAPI hate incidents in the last year.  As President Biden signed the bill into law, he remarked: “My message to all of those who are hurting is:  We see you and the Congress has said, we see you.  And we are committed to stop the hatred and the bias.”

In substance, the Act itself reflects a lot of what has gotten us to this point over the last year.  In its Findings section, Congress acknowledges the statistical increase in anti-AAPI hate crimes and violence perpetrated against AAPI individuals since the start of the last year’s pandemic.  It also recognizes that one of the most vulnerable segments toward racial violence and bias has been the elderly members of the AAPI community—those who are the least able to socially and political integrate into American society because of immigrant status and language barriers.  And by listing the incident itself and the names of all victims, the Act also recalls the recent Georgia shootings that resulted in the death of six women of Asian descent. 

The Act doesn’t change the nature of identifying or prosecuting hate crimes.  But in operation the Act tries to do several things.  First, it sets up more resources for law enforcement, including the DOJ, for addressing reported incidents of hate.  Secondly, it also funds educational programs for law enforcement to better recognize hate crimes and better systems for reporting hate crimes.

In essence, the Act tries to address two issues that AAPI organizations have highlighted with anti-Asian hate incidents in the last year—that such incidents are often underreported or never reported when they happen and also law enforcement agencies have a hard time classifying such incidents as hate crimes. 

Is the Covid-19 Hate Crimes Act the proverbial pepper spray that AAPI individuals can now carry in their pockets to rely on against incidents of hate?  Probably not.  The Act embodies a lot of good, but it also has its limits.  But those limits may reflect the constraints of law and our legal system, rather than the swift legislative actions of certain AAPI members of Congress.  We can’t overstate what our laws can do.  That will just make us bitter about the legislative process—and legisprudence—as a means of change.  And in this last year, there’s already been a lot to be bitter about.  So, I’d stress not to think that way.

Instead, I look at the Act optimistically because it is a moment for the AAPI community to be seen and heard.  But I accept its limitations as well and use them as motivation to continue to be seen and heard—and much of being seen and heard in the wake of the Act’s signing cannot merely involve legislation alone. 

We need to address the underlying ways AAPI individuals are perceived by American society—false narratives and stereotypes that have led so easily to the scapegoating of folks who look like my student and me during this pandemic.  Otherwise, the end goals of efforts that got us the Covid-19 Hate Crimes Act will be short lived.  Just as laws and norms go together, so do changes in law and norms as well.  Progress on societal issues may seem hollow or short-lived if they happen by fiat without underlying shifts in norms and values that gird those societal issues originally. 

Recently, on a Vox podcast featuring Olivia Laing on her new book on bodies and political autonomy, she laments that in terms of reproductive rights, the conversation that occurred around the right to abortion that surfaced in the last century seems to have continually resurfaced to stunt prior legal progress—or in my view, even threatening that progress given some developments at the Supreme Court and in Texas in the last few days.  Some of this is likely attributed to existing misogyny and gender oppression that was never completely dealt with after Roe.   

Similarly, when Jonathan Metzl writes about gun control, he has pointed out that despite legal efforts to curb gun violence, the underlying ideas about gun ownership—such as how ownership plays into and reifies a sense of racial identity and American masculinity—cannot be ignored when we address societal changes on that topic. 

In his Prejudicial Appearances: The Logic of American Antidiscrimination Law, Professor Robert Post posits on a similar faithful overreliance on the judicial system to address inequality, stating that there’s a certain “logic” in post-World War II liberal thinking that “has led judges to craft legal rules as though antidiscrimination law could liberate individuals from the thrall of social ‘stereotypes,’ when in fact that law can intervene instead only to reshape the nature and content of social stereotypes.”  As someone who writes about anti-stereotyping theory in law, I always read this passage to remind myself what else beyond law can be used to address stereotypes and normative values—because whether I agree with Post or not about law’s anti-stereotyping potential, he is right to point out that the law has limits when it comes to advancing justice and equality. 

The Covid-19 Hate Crimes Act is a necessary step, but in order for individuals in the AAPI community to be seen and heard effectively—to not avoid being stereotyped—we also need our lived experiences to be actively and authentically reproduced, sincerely internalized by the American public, and finally understood with respect and dignity.  Lived experiences matter for challenging existing norms that marginalize individuals and groups in this society. This sentiment is especially so when AAPI individuals have been marginalized in ways that flatten their diversity and humanity—as model minorities, perpetual foreigners, or white-adjacent and invisible people.  Education ought not just be for law enforcement to better address or hear about hate crimes.  Education must extend to the rest of the public to understand how AAPIs live, move, and are constrained within this society.  One great example that I recently came across involves AAPI dance artists and choreographers who are trying to get major ballet companies to eliminate offensive representations in ballet productions.  We need to be seen and heard beyond the Covid-19 Hate Crimes Act.  I hope we claim this time and opportunity to do so.   

So, to that end, I urge readers here to get to know or even get involved in AAPI organizations.  I list two here:

• StopAAPI Hate: https://stopaapihate.org/
• AAAJ (Asian Americans Advancing Justice): https://www.advancingjustice-aajc.org/.

Or to become familiar with AAPI issues, visit resources or events available from the UCLA Asian American Studies Center:  http://www.aasc.ucla.edu/events/default.aspx.

For summer reading lists, one recent non-fiction book on AAPI experiences that I’d recommend is Cathy Hong Park’s Minor Feelings (2020): http://www.cathyparkhong.com/.  One recent work of fiction is Charles Yu’s Interior Chinatown (2020): https://www.charlesyuauthor.com/.  

And lastly, one resource for all of us to become more empowered allies for each other is the free bystander training at Hollaback!:  https://www.ihollaback.org/.

Let’s make sure that Asian American Pacific Islanders matter beyond the month of May. Pepper spray or not, let’s take care of ourselves and each other as we move back into public spaces and back into the world.   

Statement by UN High Commissioner for Human Rights Michelle Bachelet on guilty verdict in George Floyd case

Geneva, 21 April 2021

“This is a momentous verdict. It is also a testament to the courage and perseverance of George Floyd’s family and many others in calling for justice. As the jury recognised, the evidence in this case was crystal clear. Any other result would have been a travesty of justice.

But for countless other victims of African descent and their families, in the United States and throughout the world, the fight for justice goes on. The battle to get cases of excessive force or killings by police before the courts, let alone win them, is far from over.

Impunity for crimes and human rights violations by law enforcement officers must end, and we need to see robust measures to prevent further arbitrary killings.  As we have painfully witnessed in recent days and weeks, reforms to policing departments across the US continue to be insufficient to stop people of African descent from being killed.  It is time to move on from talk of reform to truly rethinking policing as currently practised in the US and elsewhere.

This case has also helped reveal, perhaps more clearly than ever before, how much remains to be done to reverse the tide of systemic racism that permeates the lives of people of African descent. We need to move to whole-of-government and whole-of-society approaches that dismantle systemic racism.

I recognize that in the US important steps are being put in place with that end in mind. These efforts must accelerate and expand, and must not be diluted when the public focus moves elsewhere.

Now is also the time to critically examine the context in which George Floyd’s killing took place by revisiting the past, and examining its toxic traces in today’s society. The redesign of our future can only be through the full and equal participation of people of African descent, and in ways which transform their interactions with law enforcement, and, more broadly, in all aspects of their lives.

The entrenched legacy of discriminatory policies and systems, including the legacies of enslavement and transatlantic trade and the impact of colonialism, must be decisively uprooted in order to achieve racial justice and equality. If they are not, the verdict in this case will just be a passing moment when the stars aligned for justice, rather than a true turning point.”

Link to statement here.

The Language Barriers to Overcoming Anti-Asian Bias

By Jeremiah Ho

My first “formal” lesson about American racism was in the second grade when Ms. Wildermuth taught us about the life and death of Martin Luther King, Jr. in tandem with his birthday holiday.  This was January 1984, a little over a year after my family and I had immigrated to Orange County, California from Taipei, Taiwan.  My fluency in English was deepening.  After a year in ESL, I was more frequently forming my thoughts in English (thus, abandoning my thinking in Mandarin) and often called upon at school to interpret for my older cousins who had also just moved to the U.S. and attended the same elementary school.  In Ms. Wildermuth’s classroom, I sat next to Melanie, the only African-American girl in our class.  As we listened to Ms. Wildermuth trace Dr. King’s heroism to the history of enslaved peoples and followed along with the lesson packet that she had given us, I had a strangely comforting thought that perhaps this hatred and prejudice that white people held against outsiders were exclusively directed toward African-Americans and that perhaps people like me were spared because we weren’t Black.  I hoped that this were true.  It seemed logical—after all, Ms. Wildermuth’s lesson about American racial prejudice didn’t mention any Chinese people.  I’m sorry, Melanie, I thought turning to her on my left.  Tag, and you’re it.

This idea, of course, was naïve thinking.  Separate from this formal lesson on racism, I had already garnered a few informal ones so far in my short time here.  In the prior year, during those early months of first grade, when I had to guess what schoolteachers were saying to me and when simple words in the English language were still escapable, had I not been made to feel like an outsider?  The first time classmates used their index fingers to pull up their eyes at me, I had no clue of their intentions.  But by the third or the fourth time, when I realized the gesture was to mark me as different and foreign, a feeling of threat and loneliness then calcified.   In response, wasn’t that why had I suddenly taken up an American first name and insisted that everyone from the school-bus driver to the cafeteria ladies stop calling me by the phonetically-translated Chinese name on my official documents?  Wasn’t that the reason why I consciously imitated the way the American kids spoke English so that I could flatten out my accent?  Wasn’t that exactly why I was thinking in English so that perhaps American was something I could become?   Didn’t these incidents also amount to lessons on racism—however informal, and self-taught?

That night, not only did I relay to my parents what we had learned about MLK, Jr. but also my thoughts that we were safe because we weren’t Black.  I assumed I was delivering good news, in the way I had, as the interpreter in the family, been able to sometimes unlock confusion.  Perhaps this was a moment I could translate America for my parents, give them a lesson for once.  Because they were definitely foreigners compared to me and my burgeoning assimilation.  To my surprise, my parents rejected my logic.  They chuckled nervously and then the weighted seriousness in their voices relayed how far I had misperceived the entire predicament of racialized America.  White people can still hate us because we are outsiders to them, they said.  Let us tell you about the story of a Chinese man in Detroit who was beaten to death by some Americans who hated Japanese people and had mistaken him for being Japanese.  This was the recent story of Vincent Chin—my second lesson of the same day about another person who was killed for what the color of their skin signified.  The feelings of safety that had trailed me home after school were suddenly swept gone.  “So just keep your head down,” my father concluded with a solution, a verbal, solemn pat on my head.  My mother, the usually more feisty parent, disagreed at first but eventually thought pacifying was best.  “Just make sure you tell us if someone treats you badly.”

I never did, nor would.  A few weeks later when an older white boy at school insisted that I ate cats and should go back home to China, I pretended not to understand what he had said—even though I probably had the exact English words to tell him that China was really not my home.  Instead, I pretended not to comprehend.  English, after all, was just my second language.  I was only starting to learn it.

Because representations of Asian-American and Pacific Islanders are so scant in popular culture and media, I always notice and fixate when there’s an Asian character in film or television or when news items focus on Asian-American experiences in some way.  (I do this similarly with queer representations too.)  In the last several weeks, I’ve never seen more media and cultural focus on the AAPI community.  And I’ve been consuming as much of it as I can find—reading, watching, listening between my online Zoom classes for my law school and office hours; while waiting for responses to an article submission on Scholastica; between conference calls with colleagues during this socially-distanced time.  It’s profoundly sad, however, that all of the focus stem not from something positive, but from, first, the horrific shooting at three Asian-owned Atlanta spas by 21-year old Robert Aaron Long, and then more broadly, from the 149% rise in hate incidents against AAPI individuals since the pandemic started.  Now it’s the continuing incidents of anti-Asian violence being reported on the news.  This week, the video from Manhattan of sixty-five year-old, Vilma Kari, who was beaten outside a luxury apartment complex while the complex’s security guards and workers ignoring the whole situation is just another example of this alarming trend. 

On the whole, two-thirds of such hate incidents have occurred against women of Asian descent.  Many have connected both the Atlanta shootings, in which 6 of the 8 victims were Asian-American women, and this rising trend of hate and violence directly to the Asian scapegoating and spreading of anti-Asian sentiments during the pandemic—particularly the racist “China-virus” rhetoric widely perpetuated by Donald Trump and his supporters.  Two weeks ago, Asian-American congressional legislators reignited urgency to pass the COVID-19 Hate Crimes Act, and the House held a three-hour hearing on anti-Asian hate and xenophobia, the first time for such a hearing in decades.  Yesterday, the White House revealed a half-dozen new actions to respond to these increasing recent attacks and harassment on AAPI individuals and communities.  Protests and demonstrates have taken place across the country.  It’s been incredibly profound to witness all of this.  In thinking about the recent shootings more specifically, I know that Atlanta, Georgia is thousands of miles away from where I am currently in Southern California, but the Asian-American experience is also one that tracks across coasts and connects my family’s lived experiences with these incidents in some broader historical context.  We metabolize media news so quickly these days, but for one moment, it seems like we are lingering to acknowledge that the lived experiences of Asian-Americans matter.       

My hope is that the loved ones and families of the 8 victims in Atlanta will find healing and peace.  And for the sake of the victims’ memories, I also hope that the incident is ultimately understood as being more complex than the reverberations of someone’s “bad day” and that the cultural scapegoating we place on people of color are called out for its deadly perniciousness.  The racist rhetoric disseminated during this pandemic and the sexualization of Asian women are both part of the same systemic, marginalizing stroke that the dominant status quo, motivated by white supremacy, has exerted continually against Asian-Americans to “other” us—to keep us wearing the perpetual foreigner hat on our heads.  In response, we Asian-Americans have often resorted to “keeping our heads down” and being model citizens, so that they can’t get us or maybe they’ll move onto someone else.  Out of caution, we let the racial narrative take its Black-versus-white binary and stay out of harm’s way.  Or else, tag, you’re it.  The easiest thing is to pick up an Anglo first name; it’s admittedly harder to lose the accent, but not impossible if you try.  You just have to have an ear for it.  And when they do go after you, just be quiet.  Pretend you didn’t hear them; pretend English is a foreign language.  Feign ignorance.  But know that if you force yourself to stay quiet too long, they’ll put a narrative on you, too—they’ll fill in their version of you in the blanks.  Or put words in your mouth and tell you to perform.  Usually for their advantage.  You’ll be the good perpetual foreigner.  You’re the smart Asian.  The dependable one.  Harmless.  The emasculated male.  Fu-Manchu.  The submissive but hyper-sexualized vamp with a heart of gold.  Suzy Wong, Cio-Cio San, Miss Saigon—take your pick.  The one with not enough personality for an Ivy League education.  Math nerd.  Invisible.  The good POC.  The model.  Crazy rich and also crazy poor.  Yellow Peril.  The Virus.  Very easily our lived experiences are erased, replaced with convenient cultural scripts. 

So the surprise that Asian-Americans have suffered within the larger racial discord in this country is unfortunate.  The rest of the country is waking up to something that’s always been there for us.  I got good enough trying to “be American” that a law school classmate later said to me, “But Jerry, you’re not like those Asians.”  So good, so invisible that years later when I was employed at a predominately white place of work, a co-worker lamented during a group diversity training session that the problem with race at our workplace was that “We didn’t have any people of color.”  I pretended not to have heard that.  Later when another colleague approached me about it, asking whether I had felt marginalized, I lied to her, saying that I hadn’t been paying attention.  A white lie to a white colleague, because my instinct was to not rock the boat.  Last summer, when I was trying to convey to the dean of my law school that I was hesitant to fly back to the Northeast if the university reverted to in-person teaching, I stuck to the public health script rather than bring up my fears of safety as an Asian-American living alone in New England, away from family and community.  Have you seen the videos of people like me being taunted in the subway?  Being blamed for the virus?  Being told to go back home to China?  I felt too ashamed to go there, even though I knew my dean would have understood.  It wouldn’t matter anyway, I thought then.  I’ll just keep my head down and nothing will happen.  Naïve thinking.  

The reluctance of law enforcement to see anti-Asian racism in the Atlanta shootings is another attempt to fill in the blanks for us—the plausible deniability that comes from deliberately not seeing color.  But the lived experiences of AAPIs do matter.  We are not your model minority one second and then invisible the next.  The moment for AAPI individuals to be interpreters of this tragedy and this bias is now upon us.  We know that language well.  This time, I hope we won’t be silenced.  

Disparate Treatment of COVID-19

By Khala Turner, 2L at St. Louis University School of Law

Amongst a unification of chaos and denial, society has been able to parse through the racial disparities that should be considered a violation of basic human rights in the aftermath of COVID-19. Human rights that are noted in the Universal Declaration of Human Rights, such as the rights to life, liberty and security of person; just and favorable conditions to work; and a standard of living adequate for the health and wellbeing. These human rights should not only be protected during COVID-19, but also should have been well established protections beforehand. As the number of people in Black communities across the globe who are diagnosed with COVID-19 continues to rise, the acts of disparity towards people of African descents grew rapidly. The ease and comfort of disparate treatment shows that racial inequity has unsuccessfully been challenged.

The risks for contracting COVID for racial and ethnic minority groups are higher due to factors such as occupation, housing, and discrimination as listed by the CDC. Growing and disproportionate unemployment rates for some racial and ethnic minority groups due to COVID-19 may lead to greater risk of eviction and homelessness, as well. When studies show disparities among racial and ethnic minority groups in COVID-19 testing, government officials and institutions should take responsibility to ensure no possible additional disparate treatment will occur. 

Racial and ethnic minorities should be concerned with the current approach to vaccine testing as well, considering historical events. During the search for medical knowledge, minorities have been historically exploited to get answers and used as Guinea pigs for testing purposes repeatedly. Consider the cases of Henrietta Lacks and the Tuskegee Syphilis Experiment. Research on Lacks’ cells led to the development of the polio vaccine, cloning, gene mapping, and in vitro fertilization. Unfortunately Lacks never knew that her cells were taken for research purposes and her family wasn’t informed until twenty-five years after her death. Similarly, in the Tuskegee Syphilis Experiment, there was no evidence that researchers informed the subjects of the study or its real purpose. The men were misled and not been given all of the facts required to provide informed consent. Throughout these experiments when consent and transparency were disconnected from subjects, authorities have displayed that all citizens do not have a right to life, liberty and security of person when medical research is involved.

Comparable to HeLa Cells and the Tuskegee Experiment research, COVID-19 has already exploited minority communities by allowing employees to expose themselves by performing essential work and destroying the right to a just and favorable condition to work. In the midst of COVID-19, authorities have released scarce means of financial support; institutions have exposed their foundational contributions to systemic racism as they do not place moratoriums on expenses and plan to send children back to educational facilities and as time progresses, many more issues that highlight racial disparities continue to unravel. While unemployment rates continue to rise, those that are forced to work to ensure that they are not evicted, means for electricity or water are not eliminated and money for food is constant then the exploitation begins to increase.

As minority communities are exploited, lives are lost, families are broken, and diseases run rampant causing more harm than good, and we must consider the generational issues that are the result of future “beneficial” medical research. Black communities have cried for help when it comes to medical treatment due to authorities dismantling trust with the lack of transparency. While looking for a COVID-19 vaccine, there should have been a shift whereas the right to life, liberty and security of person are protected with consent and transparency. The best method to protect minority and low-income communities is to allow community members similar opportunities to actively participate in medical facilities. A portion of the underrepresentation problem stems from the under-supply of minority students from public schools who are academically prepared to succeed as undergraduates and thus are able to apply successfully to medical schools.

The fundamental human rights that need protection are those that are feared by many, such as losing their adequate living standards for health and wellbeing or the possibility of being incarcerated due to truancy laws being broken by not sending their children to mandatory schooling. The fear of survival in communities where many are living paycheck to paycheck should not outweigh the fear of contracting a life-threatening disease that destroys communities much faster due to underlying systemic racist conditions. These human rights efforts should no longer begin when disparate deaths in minority communities and exposure to the virus continue to rise but should begin immediately. Authorities should be willing to review statistics and take proactive steps to ensure that exposure is low, transparency is available, and financial resources are provided.

To eliminate fears and protect society, months ago, governments should have immediately re-implemented mandatory lockdowns, expanded federal and state support for the unemployed to cover living expenses, and eliminated all non-essential travel, business and extracurricular activities. As we have seen in the last few weeks, the Biden Administration has taken small steps towards victory by passing the American Rescue Plan Act. These implementations are all important to the Black family, the minority and low-income communities. In the interim, authorities must work to ensure that healthcare costs, medical needs in all states and expenses related to alleviate COVID-19 through vaccination plans in medical facilitates are affordable or free. The initial perception behind the COVID-19 vaccination was to ensure minority communities were given the opportunity to receive the vaccine as the media questioned the lack of excitement from Black communities to sign up for it. Sadly, the socioeconomic disparities continue across the country as wealthier communities are gaining access to opportunities to vaccinate quicker than others. As people continue to travel from city to city to gain access to the vaccine, the hopes for the Biden Administration’s plan to have every consenting adult vaccinated by May 1^st are high. It is imperative that regulations are set in place to guide the actions of all State governments and vaccine locations.

In short, it is now time to continue overseeing actions and implement laws that will protect the human rights of minority communities such as being free from unfair treatment in housing and medical opportunities, and discrimination in education as children return to school. While these laws and policies may be perceived as infringing upon some people’s rights, this has never been the crux of the argument when infringing upon the rights of minorities or any low-income persons. If there is any time to continue to see a positive change in society, now is the time.

23 UN Human Rights Experts Issue Statement on Policing and Systemic Racism in the US

On Friday February 26, 2021, 23 UN human rights experts issued a very strong statement on policing and systemic racism in the United States. The statement calls out police use of excessive force against protesters, highlighting the Philadelphia Police Department’s violent crackdown on Black Lives Matter protesters last June. The statement is also the first time international human rights experts have echoed the Black Lives Matter Movement and allied groups in calling to shift resources from police departments to social and economic resources to support communities of color.

This is also very significant because the last time the UN addressed the issue there was outrage after the UN Human Rights Council watered down a resolution on police brutality and racism after George Floyd's murder, removing the language condemning the US and calling for an investigation. 

This statement would not have been possible but for the incredible advocacy of Professors Rachel Lopez and Lauren Katz Smith and their students at Drexel's Kline School of Law, as well as the ACLU of Pennsylvania. 

Ongoing Pain From 9/11 Bias

A portion of the discourse on the anniversary of 9/11 addressed the ongoing suffering of Muslims and those of Middle Eastern heritage. Immigrants are particularly vulnerable but bias against those of Middle Eastern ethnicity continues against all generations of Muslim Americans.  In 2017 Pew Research Center reported that assaults against Muslims exceeded 2001 levels.  Intimidation and property damage are two of the most common assaults on Muslims, along with all forms of discrimination.  Ignored are Middle Eastern and Muslim families who also lost friends and love ones in the 9/11 attacks.  The government is a major perpetrator of this discrimination. 

This week a U.S. district court judge, Alison Nathan, who this week "castigated federal prosecutors in the Southern District of New York for repeatedly withholding exculpatory evidence in the case of an   Iranian businessman who was convicted of  funneling more than $115 million through the American financial system."  Prosecutors agreed to vacate the judgment after their improprieties came to light, including misrepresentations around discovery in the case.  Judge Nathan commented that "serious and pervasive issues related to disclosure failures and misleading statements to the court."

Judge Nathan was appalled that the federal ethics overseers declined to investigate the case. "The cost of such government misconduct is high.  With each misstep, the public faith in the criminal -justice system further erodes. With each document wrongfully withheld, an innocent person face the chance of wrongful conviction."   

 

 

A Victory For Equality and The Rule of Law

Guest Blogger Professor John Rice, UMass Law School, shares his thoughts on Bostock v Clayton County, Ga.

On June 15, 2020, the Supreme Court announced its opinion in the Title VII trifecta—Bostock v. Clayton County., Ga.; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At the outset, I acknowledge the roles that Aimee Stevens and Donald Zarda played in this litigation. Both litigants passed away prior to the Court’s ruling in their cases. I thank both of these individuals for their courage and veracity in bring these suits, and I offer warm wishes of peace and comfort to their loved ones.

 This opinion has been hailed—rightly—by many as a significant civil rights victory, particularly regarding equality for the LGBTQIA+ community. Captioned Bostock (Bostock was the first of the three cases docketed), the Court considered whether the prohibition of “discrimination on the basis of . . . sex” set forth in Title VII of the Civil Rights Act of 1964 extended to prohibit discrimination of the basis of sexual orientation or gender identity. The Court presented what it characterized as a simple answer to a simple question: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]” Thus, an employer who engages in such discrimination violates Title VII.

I receive this victory with cautious optimism. Much should, can, and will be written about the “next” issues arising and the inherent limits of the moment. The Court was construing Title VII, which only applies to employers who have more than 15 employees and from which religious organizations are exempt. Relatedly, it’s hard to avoid noticing that Justice Gorsuch allocated almost two pages (out of thirty-three) discussing what issues are not before the Court, including any purported tension between non-discrimination and an employer’s religious convictions. Indeed, a case in the Court’s pipeline—Fulton v. City of Philadelphia—will soon explore that precise issue. Additionally, Bostock only addressed the term “sex” in the context of a single statute; it remains unseen whether the term “sex” likewise encompasses sexual orientation and gender identity for purposes of heightened constitutional scrutiny. Likewise, across the country, the federal executive and state governments are engaged in a barrage of attacks against the LGBTQIA+ community, including rolling back healthcare protections and permitting adoption discrimination. Without doubt, the fight continues. But for now, let us take a moment to celebrate and breathe a sigh of relief.  

I join with those who offer praise for the Court’s ruling. While, for most, the jubilation is over the victory for the equality movement, we should also celebrate this opinion as significant in advancing the rule of law and promoting public confidence in the judiciary. The principles underlying the rule of law can generally be framed as three core values: first, that no one is above the law and no one is beneath it; second, that law is formed through a public and transparent process—there is no such thing as “secret” law; and finally, that the institutions that make, interpret, and enforce our laws are consistent and predictable. In Bostock, the Court fulfilled each of these promises.

Most notably, Bostock is about statutory interpretation. Here, the Court engaged in one of its most foundational duties and employed familiar canons of statutory construction to arrive at its conclusion. While acknowledging that the statute’s drafters may not have anticipated this particular application of the law, the letter of the law still necessitated the conclusion. In fact, the majority reasoned that adoption of the employers’ positions would be a deviation from the plain language of the statute. Despite sharp criticism from the dissents that the Court was expanding the plain language of the statue, “legislating from the bench,” the majority made it clear: “homosexuality and transgender status are inextricably bound up with sex.” Thus, discrimination based on sexual orientation or gender identity is discrimination based on sex, which is prohibited by Title VII.

            Next, Bostock was consistent with the Court’s precedent and offered an analytical framework for moving forward. The Court primarily relied on three of its past Title VII rulings: Phillips v. Martin Marietta Corp., L.A. Dept. of Water & Power v. Manhart, and Oncale v. Sundower Offshore Services, Inc. Each of these cases involved “sex plus” discrimination—that is, discrimination on the basis of sex “plus” something else (e.g., having young children, a longer life expectancy, or being of the same sex as one’s harasser). Although the discrimination may have been primarily motivated by the non-sex factor, each instance nevertheless still involved sex, and was therefore prohibited under Title VII.

            Similarly, Bostock offered a framework for legal analysis in future cases. Unlike some of the Court’s past monumental opinions, Bostock did not rely on evasive principles such as “dignity,” “intimate association,” “[safeguarding] children and families,” or “the Obergefell v. Hodges, 576 U.S. 644 (2015), or United States v. Windsor. Of course, this may be attributable to Bostock’s presentation of a different sort of legal issue, one that is more technical and separate and apart from issues of fundamental rights under the Constitution. But still, Bostock offers sound insight into how courts may in the future analyze other prohibitions of discrimination based on sex, such as in the context of healthcare, education, or adoption.

            Finally, the Court soundly rejected the notion of “secret” law or the idea that a legislature’s subjective intent—or perhaps even just the subjective intent of a few legislators—could supersede the plain language of a statute. Certainly not. In a line that sent chills up my spine, the majority reminded us: “Only the written word is the law, and all persons are entitled to its benefit.”

Indeed, your Honors. Indeed.

SCOTUS’ Landmark Reading of Title VII “Sex” As Encompassing Sexual Orientation and Gender Identity

Parallel to our symposium on Mr Floyd's death and the aftermath, we are running posts on this term's Supreme Court decisions having human rights and civil rights implications.  Prof. Shirley Lin of NYU Law School discusses an unexpected result.

In a historic opinion that reenvisions Title VII as “sweeping” and “expansive,” the Supreme Court ruled that hostility against an individual for “being homosexual or transgender” is sex discrimination in Bostock v. Clayton County, Ga.  One of the broadest readings of Title VII in decades, the 6-3 opinion implicitly honored the courage and perseverance of plaintiffs Aimee Stephens and Donald Zarda, whose cases were consolidated with Gerald Bostock's but who unfortunately passed away before hearing the opinion issued.  The Court recognized their dedication to their employers and, using accessible language, acknowledged their gender identity and sexual orientation with dignity.

The cases hinged upon Title VII’s statutory language, which states simply that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1).  Relying upon reasoning that alternated between textual, plain meaning, and a concerning debut of “ordinary public meaning” as to a remedial civil rights statute, Justice Gorsuch wrote:

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids."

Bostock represents a major shift in how courts analyze discriminatory intent in Title VII cases.  By providing a categorical rule that one’s status, “trait or actions” related to sexual orientation or gender identity, is “sex”-based, the opinion is a landmark victory for LGBTQIA+ communities that further eases the burden judicial interpretations had until now made very difficult in proving claims that raise the social traits of race, color, national origin, and religion.  The opinion acknowledges that but-for causation “can be a sweeping standard” that “often [includes] multiple but-for causes,” but the sea change lies in the following passage:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Among the remarkable aspects of Bostock is its elevation of multiple motives in its broadened description of but-for causation while ignoring the less-preferred alternative called “motivating factor.”  It implicitly responds to a doctrinal correction as to causation instigated by lower courts that read the statute’s plain text to include any subordination of a worker beyond the Court’s gratuitously narrowed articulation of but-for causation over the last two decades.  Those courts read the protected trait of “sex” through social construction evidence, which the Court did in the above passage through a comparative argument.

Notably, because the circumstances of all three plaintiffs did not involve non-binary gender presentation the Court sidestepped having to define “sex” conclusively and left the question for a future case in stating that it “proceed[ed] on the assumption that 'sex' [in 1964] signified what the employers suggest, referring only to biological distinctions between male and female.”  The majority acknowledged “nothing in [its] approach to these cases turns on the outcome of the parties’ debate” over whether sex’s meaning includes “norms concerning gender identity and sexual orientation.”  But implicitly, the Court for now viewed both statuses as a “plus” in the vein of its sex-plus precedent, rather than as subsets of “sex.”  It also reserved for another day the application of religion objections brought by both religious employers, exceptions for ministerial employees, and claims under the Religious Freedom Restoration Act, as none of those issues were raised on appeal.

Not content with the majority’s imputed meaning of sex “in 1964,” in a dissent joined by Justice Thomas, Justice Alito accused the majority of judicial legislating, and Justice Kavanaugh separately wrote: “Seneca Falls was not Stonewall . . . . [T]o think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

Particularly in light of the Trump Administration’s relentless assault on the legal rights of LGBTQIA+ communities, the decision has potent implications for Title IX, which is viewed as analytically identical to Title VII and yielded equally momentous public-school student victories that propelled public support for communities nationwide to affirm transgender students’ gender identity.  Today’s decision indeed marked a euphoric moment for the triumph of principle over ends-driven interpretation.

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.

Allies Along The Way

By Prof. Justine Dunlap

In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.

I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.

In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.

Romney, in a Facebook post, declared that Trump’s words “caused racists to rejoice, minorities to weep, and the vast heart of America to mourn."   I mourn with you, Mitt.

Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.

Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.

Other conservatives have spoken out, too.  Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.

But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda.  But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.

“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr.   Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.

The Continuing Campaign to Make America White Again

Two opinion pieces were published this week that underscore the foundation of racism upon which the Trump Administration policies are built.  Both pieces follow the "leak" this week of a memo outlining the Department of Justice's plans to pursue dismantling of affirmative actions programs.  Both pieces point out the absurdity of portraying US whites as victims.   Prof. Carol Anderson , is the author of White Rage, the Unspoken Truth of Our Racial Divide. She reminds us in her NYT opinion, white men benefit from flexible undergraduate admissions programs.  If objective scores and grades were the predominant selection method, white males would be a distinct minority on campus.  Flexible admissions policies that consider gender as a bona fide admissions factor, benefit white males as much as anyone else.  But it is race of which whites most complain.

 In his New Yorker piece, Jelani Cobb focuses on the heart of racist thinking.  Whites view their economic status comparatively.  One African American succeeding financially is an affront to less affluent whites.  The underlying assumption that whites deserve to be successful in every way before any person of color "succeeds", (however that is defined), is the source of white resentment.  Whiteness as the ideal standard is what Trump and many followers look to preserve. 

Mr. Trump may not be a seasoned politician.  He may be unable to deliver on his major campaign promises. But he knows how to stoke his base. Through feeding anger and irrationality, Mr. Trump has begun his re-election campaign.