Human Rights

Derechos Humanos / Human Rights

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South Africa court declares display of apartheid-era flag hate speech

Source: Jurist

August 22, 2019

South Africa’s Equality Court ruled Wednesday that the gratuitous display of the apartheid-era national flag constitutes hate speech.

The Nelson Mandela Foundation (NMF) sought “an order declaring that any display of the Old Flag that does not serve any genuine journalistic, academic or artistic purpose in the public interest” constitutes hate speech, unfair discrimination, and harassment of black people under the Equality Act.

This case was brought following Black Monday, on October 30, 2017, where public demonstrations against farm murders and violence against farmers took place and the Old Flag was displayed. These demonstrations sparked a debate about the use of the Old Flag, which led to the NMF filing the complaint in the present case.

The case focuses on two things: the Old Flag, and hate speech and freedom of expression.

Judge Phineas Mojapelo discussed each of the issues in turn, first stating that: “The Old Flag must be interpreted against its history and meaning in order to ascertain its objective meaning(s) and thus to asses the effect of its display on the rights to dignity and equality.”

The adoption of the Old Flag in 1927 served the purpose of severing ties with imperial Britain, and as a symbol of unity between English and Afrikaans speakers. Africans and other people of color were excluded from the discussion and subsequent adoption of the Old Flag. “The Flag Act was part of a scheme of statutes that … [entrenched] racialized segregation and white supremacy.” The Old Flag was replaced in 1994 as part of the republic’s transitional constitution and the end of apartheid.

In determining whether the display of the Old Flag legally constitutes hate speech under the Equality Act, Mojapelo said that section 10 of the Act “should be interpreted in a manner that prohibits all expressions of ideas, verbal and otherwise (including the displaying of a flag), that amount to hate speech.”

It is determined that the display of the old national flag of South Africa, introduced from 31 May 1928, and used throughout apartheid until it was abolished on 27 April 1994, at the “Black Monday” demonstrations on 30 October 2017 constituted: hate speech, unfair discrimination on the basis of race, and harassment. Further, it is determined that any display of the Old Flag constitutes hate speech, unfair discrimination on the basis of race, and harassment.

The Nelson Mandela Foundation issued a statement following the judgement, calling the Old Flag a “globally recognized symbol of white supremacy, exclusion and hatred,” and celebrating the ruling as an affirmation of South Africans’ rights to dignity and meaningful freedom of speech.

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Derechos Humanos / Human Rights

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Council of Europe condemns Hungary for human rights abuses              

Source: Jurist

May 21, 2019

Council of Europe Commissioner for Human Rights, Dunja Mijatović released a report Tuesday detailing the abuses by the Hungarian government towards asylum-seekers following her visit in February.

The report finds that Hungarian Prime Minister Viktor Orbán has continued to promote xenophobic policies under the guise of addressing an immigration crisis. Refugees held at transit zones have been allegedly deprived food and face extremely higher rates of rejection of their asylum applications. According to a statement, the Commissioner believes that the Hungarian “government’s stance against immigration and asylum seekers has resulted in a legislative framework which undermines the reception of asylum seekers and the integration of recognized refugees.”

The report also addresses other areas of concern such as recent legislation targeting and criminalizing certain NGOs’ activities and its impact on civil society. There also have been reforms to the judiciary that have undermined the balance between the judiciary and self-governance. Finally, Mijatović believes that Hungary is “backsliding” on gender equality through legislation that reinforces gender stereotypes while calling for greater protections for violence against women

Derecho Ambiental / Environmental Law

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Torres Strait Islanders to file UN human rights claim against Australia over climate change                     

Source: Jurist

May 15, 2019

Residents from Australia’s Torres Strait Islands plan to file a human rights complaint against the Australia government for failing to address the impacts of climate change.

The residents will be represented by a UK environmental non-profit organization, ClientEarth who issued a press release Sunday detailing the complaint to be lodged with the UN Human Rights Committee. The allegation is that the Australia government’s failure to mitigate the impacts of climate change violates legal obligations to the Torres Strait Islanders who are rising sea levels impacting burial grounds and cultural sites. The First Nations people who live on the island believe this impact on cultural heritage is a violation of on the UN’s International Covenant on Civil and Political Rights. The residents are requesting for additional funding to protect against climate change impacts like seawalls to protect sacred sites and physical property, a phasing out of coal use, and commitment to reducing emissions.

This is the first legal complaint brought against the government of Australia for human rights violations related to climate change. The committee’s decision is non-binding on sovereign nations, but could place pressure on the Australian government to take action.

Derechos Humanos / Human Rights

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New York Senate approves bill requiring health insurers to cover eating disorders       

Source: Jurist

May 8, 2019

 The New York state Senate on Monday approved a bill closing a gap in healthcare coverage for people with eating disorders by a vote of 53-8. It requires health insurers in the state to “provide coverage for inpatient hospital care and physician services for eating disorders.”

The bill defines eating disorder as: “pica, rumination disorder, avoidant/restrictive food intake disorder, anorexia nervosa, bulimia nervosa, binge eating disorder,” or any other eating disorder described in the Diagnostic and Statistical Manual (DSM). The DSM is used by mental health professionals to aid in the recognition and diagnosis of mental disorders.

The bill also covers “schizophrenia/psychotic disorders, major depression, bipolar disorder, delusional disorders, panic disorder, [and] obsessive compulsive disorders.”

The bill awaits the signature of the governor and will become effective 90 days after it becomes law.

Derechos Humanos / Human Rights

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Indian Court Decides In Favor of Informed Consent Rights for Intersex People

Source: Human Rights Watch

April 29, 2019

-India-

A court in the Indian state of Tamil Nadu has ordered the local government to prohibit medically unnecessary “normalizing” surgeries on children born with intersex variations until the patients themselves can consent.

“Intersex” refers to the estimated 1.7% of the population born with bodily traits that do not fit conventional expectations of female or male. Their sex characteristics – such as chromosomes, gonads, or genitals – differ from social expectations. Except in very rare cases when the child cannot urinate or internal organs are exposed, these variations are medically benign, natural variations of human anatomy.

Yet in the 1960s surgeons in the United States popularized “normalizing” cosmetic operations, such as procedures to reduce the size of the clitoris. This approach has been effectively exported globally.

These procedures are not designed to treat a medical problem and there is no evidence that such operations help children “fit in” or “function in society,” which some surgeons say is their aim. The operations do, however, carry high risks of scarring, loss of sexual sensation, incontinence, sterilization, and psychological trauma

For decades, intersex patients and their advocates have asked governments and the medical community to develop standards to defer elective procedures until patients can decide for themselves – exactly what Justice GR Swaminathan delivered in his judgment on April 22.

The judgment cites India’s landmark 2014 Supreme Court decision upholding the rights of transgender and gender-diverse people. It also refers to Malta’s 2015 gender identity and sex characteristics law, which enshrined rights-based legal recognition for transgender people and banned unnecessary surgery on intersex children, the World Health Organization, which has urged an end to these operations, and the Indian intersex advocate Gopi Shankar.

Shankar wrote to India’s National Human Rights Commission and received a response from the Ministry of Health in 2017, which the judgment cites in full.

The ministry’s response features a subtle but important obfuscation. Officials deny Shankar’s claim that non-consensual medically unnecessary surgeries are being carried out, claiming that “any kind of invasive medical procedure, including sex reassignment surgeries, are done only after thorough assessment of the patient,” and “only after taking a written consent of the patient/guardian.”

But as I documented in my research for Human Rights Watch on the issue in the US, parents sometimes give their consent based on only limited or biased information from doctors. And a parent’s consent to medically unnecessary major surgery on a child too young to speak is hardly sufficient for protecting children from the risks of these surgeries. Scholarly research on the issue has found, similarly, that medical teams often coerce consent from parents by presenting “normalizing” surgeries as the preferred option, or using scare tactics such as suicide fears based on irrelevant data.

In recent years, national, regional, and international health and human rights bodies have increasingly called for the protection of intersex children’s informed consent rights. “The consent of the parent cannot be considered as the consent of the child,” Justice Swaminathan’s ruling stated plainly.

In recent years, national, regional, and international health and human rights bodies have increasingly called for the protection of intersex children’s informed consent rights. In 2015, 12 United Nations agencies released a joint statement referencing “unnecessary surgery and treatment on intersex children without their consent.” In 2017 the Parliamentary Assembly of the Council of Europe passed a resolution calling for protecting intersex children from unnecessary and irreversible surgery without their consent, and in 2019 the European Parliament complemented that call with its own resolution.

Physicians for Human RightsAmnesty International, and intersex-led organizations worldwide have called for legal protections to ensure that such surgery is conducted only when the patients themselves consent. UN human rights committees, which oversee international treaties, have condemned the practice of non-consensual “normalizing” operations on intersex children 40 times since 2011.

Justice Swaminathan’s words will ring true for intersex activists, patient advocate physicians, and parents around the world who have shown through their own experience that peer support and honest conversations are the best form of care. And as he said, “The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame.”

The Health and Family Welfare Department of Tamil Nadu has eight weeks to respond with its policy protecting the informed consent rights of children born with intersex traits. They would do right to consult with intersex advocacy groups and follow international human rights standards in crafting their policy and set an example the rest of India should follow. Everyone has the right to informed consent – even those who were born with bodies that are slightly different.

Derechos Humanos / Human Rights

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India court upholds transgender marriage rights            

Source: Jurist

April 24, 2019

A court in the Indian state of Tamil Nadu ruled Monday that a marriage between a cisgender man and a transgender woman is valid. The Madurai-based bench of the Madras High Court held the term “bride,” as used in Section 5 of India’s Hindu Marriage Act, to be inclusive of transgender women.

State registration authorities had refused to recognize and register the marriage of a cisgender man and a transgender woman, arguing that a transgender woman cannot be a “bride” under the Hindu Marriage Act. The couple approached the Madras High Court, claiming a violation of fundamental rights guaranteed by Article 14 of the Constitution of India.

Judge G R Swaminathan, while allowing the couple’s writ petition, observed that transgender rights are a part of the Indian constitution. Reaffirming the constitutional principles recognized by the Supreme Court of India in National Legal Services Authority (NALSA) v. Union of India, he said, “Sex and gender are not one and the same. A person’s sex is biologically determined at the time of birth. Not so in the case of gender. The Supreme Court has held that Article 14 of the Constitution of India which affirms that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India would apply to transgender individuals.”

“Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India,” the judgment adds. The court was also of the view that Article 19(1)(a) and Article 21 of the Constitution should be expansively interpreted to encompass gender identity. Article 19(1)(a) aims to ensure the freedom of speech and expression while Article 21 guarantees the “protection of life and personal liberty.”

The court ruled that authorities could not question an individual’s “personal autonomy” to “express her gender identity.” “It is not for the State authorities to question this self-determination,” it said.

General

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Call for Papers: Hope in International Law and Human Rights  

Source: International Law Reporter

March 01, 2019

 The International Law and Human Rights Unit of the School of Law and Social Justice at the University of Liverpool has issued a call for papers for its Third Postgraduate Conference in International Law and Human Rights, to take place June 17-18, 2019. The theme is: “Hope in International Law and Human Rights.” The call is here.