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Blog: Gerald Neuman

June 9, 2021

Harvard Human Rights Journal on Indirect Discrimination and Religion

Grounded in an April 2020 symposium hosted by the Human Rights Program at Harvard Law School, the latest issue of the Harvard Human Rights Journal focuses on indirect discrimination on the basis of religion. HHRJ’s Volume 34, Issue 2 (Summer 2021) invited scholars who attended the private workshop to explore the concept in more detail, exploring issues in a comparative and international manner. The April event was hosted by Gerald Neuman, HRP Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, who also contributed an essay to the journal on the “normative background to prohibitions on indirect discrimination” and “the current state of indirect discrimination law domestically and internationally.”

Other essays in the series explore the nuances between indirect discrimination and reasonable accommodation, the inclusion of religion in public education to promote tolerance, and the difference between the right to freedom of religion and the right against religious discrimination. Expert contributors included Tarun Khaitan, Professor of Public Law and Legal Theory at Wadham College, Oxford University; Rashad Ibadov, Assistant Professor of Law at the School of Public and International Affairs, ADA University, and a former HRP Visiting Fellow; and Sarah Cleveland, Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School; among others.

Two commentaries round out the issue. Victor Madrigal-Borloz, Eleanor Roosevelt Senior Visiting Researcher and Independent Expert on Sexual Orientation and Gender Identity, spoke to how the theory of indirect discrimination might be applied to the lived realities of lesbian, gay, bisexual, trans, and other gender diverse (LGBT) persons; and Yuval Shany, Hersch Lauterpacht Chair in Public International Law at Hebrew University, wrote about the choices made by national and international human rights bodies in employing guarantees of religious freedom and prohibitions of indirect discrimination as alternative bases of protection.

Read the full issue on the HHRJ website.

For the last two years, HRP has hosted three private workshops focused on indirect discrimination and other factors. Most recently, workshops explored indirect discrimination on the basis of sexual orientation or gender identity (SOGI) and indirect discrimination arising from the pandemic, with a discrete focus on SOGI.

Learn more about the 2020-2021 workshops here.

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June 3, 2021

Human Rights Workshops Explore Indirect Discrimination

Posted by Dana Walters

In Panama, Peru, and Colombia, gender-based quarantine schedules created a culture of fear and risk for transgender individuals. With men allowed out of the house on certain days of the week and women others, gender-diverse persons faced an increased threat of persecution and discrimination by the state and the public. Human Rights Watch and the Inter-American Commission on Human Rights were but some of the groups to note alarm. Just a few months after they were enacted, many of these laws were wiped from the books.   

These gendered pandemic measures were an example of the practices and laws up for discussion at a February workshop hosted by the Human Rights Program (HRP) at Harvard Law School. The event, which focused on indirect discrimination resulting from the pandemic, with a particular emphasis on sexual orientation and gender identity, was one in a series of indirect discrimination workshops HRP has convened in the last year. In spring 2020, HRP hosted a virtual convening exploring indirect discrimination on the basis of religion with several former and current members of the UN Human Rights Committee. During the 2020-2021 academic year, HRP hosted two additional workshops drawing on other categories of indirect discrimination. Convened with Columbia Law School’s Human Rights Institute, the October 2020 workshop addressed indirect discrimination on the basis of sexual orientation and gender identity, laying the foundation for February’s discussion on the pandemic.

“One way to think about the purpose of indirect discrimination norms,” said one expert at the October convening, “is that they compel government, or other actors subject to the norms, to actively think about or know about the lives of people who are not like themselves.”

Indirect discrimination is a term that encompasses rules or laws whose intent may not be to discriminate against one group “on the face of it” but has the effect of doing so. In the workplace, for instance, a policy that requires employees to work on Saturdays may have severe effects for those of the Jewish faith, who observe Saturday as a holy day of rest. Indirect discrimination affects a range of protected groups on the basis of race, religion, and other factors.

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January 13, 2021

Impeachment Can Vindicate Human Rights

Posted by Gerald L. Neuman

Impeachment is an extraordinary procedure for responding to abuse of power by government. Is legislative trial of elected officials consistent with human rights? It depends. Groundless political trial, or arbitrary and irregular proceedings, may violate the rights of the officials, and more importantly the political rights of the voters who elected them. But procedurally regular and substantively justified impeachments, with appropriate sanctions, may be consistent with the rights of the officials and essential for preventing future violations of the rights of others and protecting democracy.

We are facing such a moment in the United States. The U.S. Constitution provides that, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Article II, sec. 4.) It gives the House sole power to impeach, and it gives the Senate sole power to try impeachments. (Article I, sec 2, cl. 5; sec. 3, cl. 6.) The Constitution provides that the consequences of impeachment and conviction “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” while leaving the person impeached subject to other ordinary legal proceedings. (Article I, sec. 3, cl. 7.) Although impeachment uses some of the vocabulary of criminal law, the only sanctions that the Senate may impose are job-related – removal and future disqualification, not imprisonment, and not even a fine.

The UN Human Rights Committee, the treaty body that oversees compliance with the International Covenant on Civil and Political Rights, examined the consequences of impeachment from a human rights perspective in 2014. (Paksas v. Lithuania, UN Doc. CCPR/C/110/D/2155/2012 (2014).)  The impeached Lithuanian president Rolandas Paksas, who had been impeached after conferring Lithuanian citizenship on a suspicious Russian donor to his campaign, complained that barring him from future re-election violated his rights of political participation under article 25 of the International Covenant on Civil and Political Rights.  The majority of the Human Rights Committee concluded that under the particular circumstances of the case, in which the consequences of impeachment were not clearly specified by law and the Constitutional Court developed its interpretation as an outgrowth of the Paksas proceedings, permanent disqualification from being President, Prime Minister or Minister “lacked the necessary foreseeability and objectivity and thus amount[ed] to an unreasonable restriction” violating article 25. (Id. para. 8.4.)

I wrote a partly dissenting opinion in that case, emphasizing that presidential impeachments are rare and difficult.  (Id. p. 17.)  They are not merely a vote of no confidence, as in a parliamentary system that contemplates renewed elections to test a leader’s political support, but a more severe recognition of abuse of power.   Some democracies limit the number of times that a president who has served honorably can be reelected, in order to ensure a healthy and competitive political system.  It is foreseeable and appropriate that a president who corrupts or attacks the democratic system should be permanently barred from seeking additional opportunities to do so again.  That sanction does more to protect political rights than it does to limit them.

In the United States, unlike Lithuania, it has been clear for centuries that a foreseeable outcome of impeachment is permanent disqualification.  When attempts to subvert the electoral process by baseless allegations and intimidation culminate in incitement to interfere by force with the congressional confirmation of the election results, disqualification would be a vindication of human rights.

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December 9, 2020

Coming to grips with populism after Trump


Gerald L. Neuman, Human Rights Program Co-Director, reflected on populism and human rights in a post-Trump landscape for Open Global Rights today, Dec. 9, 2020. Neuman, who is also and the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, describes some of the ideas first presented in his recent edited collection, Human Rights in a Time of Populism (Cambridge University Press, 2020) while expounding on what comes next for the U.S. government to overcome the damage the outgoing Trump administration has done domestically and internationally.

Neuman writes:

“Returning to the rule of law and fortifying democracy in the United States will best be accomplished by reemphasizing the country’s own democratic and egalitarian values, and by vindicating truthfulness after four years of Trumpian fraud. The U.S. needs both candor going forward and full disclosure of the actions of the prior regime and their consequences. Although there may be some benefit in showing how regression has undermined U.S. respect and influence in the world, international human rights discourse and external criticism are unlikely to reclaim the opinions of voters under the sway of aggressive nationalism.”

Neuman’s post comes on the heels of a Nov. 18 panel with the Harvard Law School Library further reflecting on the book’s themes. At that event, Neuman was joined by panelists: César Rodríguez-Garavito, Director of the Center for Human Rights and Global Justice, NYU School of Law; Richard Javad Heydarian, an academic, columnist, and policy adviser in the Philippines; and Ruth Okediji. Jeremiah Smith. Jr, Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center. You can watch the HLS Library book talk below:

Learn more about Human Rights in a Time of Populism in a Q&A from Harvard Law Today.

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September 21, 2020

Mourning the Passing of Justice Ruth Bader Ginsburg

Posted by Gerald Neuman

Photo Credit: Tony Rinaldo.

With the passing of Justice Ruth Bader Ginsburg, the nation and the world have lost a champion of human equality. At the Human Rights Program, we must mourn and remember while we persist.

Justice Ginsburg was a tireless defender of universal human rights. She initially gained fame as the strategist of constitutional reform for women’s equality, fighting legalized stereotypes and making clear the harm they imposed on everyone. As a judge of the D.C. Circuit (where I first met her) and as a Supreme Court Justice she kept attention on the rights of all – including women, racial minorities, religious minorities, LGBT persons, immigrants, the poor, prisoners. She sought to ensure the efficacy of antidiscrimination law and to preserve access to the courts. 

Justice Ginsburg expressed her openness to the world in such ways as her refusal to confine constitutional rights within the nation’s formal borders, her willingness to learn from foreign constitutional experience, and her acceptance of self-executing treaty provisions.  

Alas, as the Supreme Court shifted during her decades of service, her fidelity to a better constitutional understanding was increasingly shown in her eloquent dissenting opinions. Throughout her career, Justice Ginsburg’s dedication, skill and fortitude offered, and continue to offer, an inspiring example to all good lawyers, and especially so to human rights lawyers.

Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, and the Co-Director of the Human Rights Program at HLS. He teaches human rights, constitutional law, and immigration and nationality law.

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August 27, 2020

The Supreme Court’s Attack on Habeas Corpus in DHS v. Thuraissigiam


Gerald L. Neuman, Human Rights Program Co-Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, contributed a piece to the Just Security blog this week to discuss the recent Supreme Court decision in DHS v. Thuraissigiam. Neuman previously filed an amicus brief to the Supreme Court on the case, which involves a Tamil individual who tried to claim asylum in the United States after fleeing Sri Lanka in fear of persecution.

Neuman writes:

“At a time when the rule of law is under threat and xenophobic incitement has become a central government policy, a five-Justice majority of the Supreme Court has called into question the Constitution’s fundamental guarantee against executive detention. Refugees are the primary target of the Court’s decision in Department of Homeland Security v. Thuraissigiam, but the immediate implications of Justice Samuel Alito’s opinion are much wider, and the opinion endangers everyone – U.S. citizens included – by reopening settled questions about the Habeas Corpus Suspension Clause of the Constitution.

This important case has gotten less public attention than it deserves.   The opinions may be hard for non-experts to follow, because they arise in a technically complex area of immigration law, and because Alito mischaracterizes some of the issues. The case arose when Vijayakumar Thuraissigiam fled Sri Lanka in the hope of being protected by the United States and was arrested by immigration officials in 2017 at a short distance from the southern border. He was placed in rudimentary “expedited removal” proceedings, where his claims for protection were quickly rejected. The statutory provisions on expedited removal clearly preclude anyone in his position from obtaining judicial review, including by habeas corpus, of the legality of the removal decision. The central issue raised by the case was whether this total preclusion of habeas corpus for a refugee within the United States violated the Suspension Clause.

Once the Supreme Court granted certiorari, it was likely that five Justices would rule against the refugee’s right to have his particular claims reviewed; the more urgent question was how broadly they would uphold preclusion of judicial review.”

Read the full article at Just Security.

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December 13, 2016

Gerald Neuman, Co-Director of HRP, Intervenes as Amicus in U.S. Supreme Court Cross-Border Shooting Case

Posted by Emily Nagisa Keehn

Last week Professor Gerald Neuman, Co-Director of the Human Rights Program, filed an amicus curiae brief in the United States Supreme Court, arguing that the Fourth and Fifth Amendments to the U.S. Constitution protected the right to life of a Mexican teenager killed by a Border Patrol agent firing across the border between El Paso, Texas and Ciudad Juarez.  Neuman was the principal author of the brief in Hernandez v Mesa, written on behalf of a dozen prominent scholars of constitutional law.

The brief explains how the Supreme Court’s “functional approach” to the extraterritoriality of constitutional rights, articulated in the Guantanamo detainee case Boumediene v. Bush (2008), should apply in these cross-border shooting situations. It also invokes international human rights principles restricting the use of lethal force. The brief reflects Neuman’s longstanding advocacy on the rights of foreign nationals in U.S. law.

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October 27, 2015

TONIGHT: “Refugees and Crisis in Europe and the Americas”


October 27, 2015


“Refugees and Crisis in Europe and the Americas”


5:30- 7:00 p.m.
Milstein East A

As refugee flows out of the Middle East, Africa and Central America grab our attention, this panel explores the legal and normative frameworks that apply to refugees and their reception, and the inadequate government responses to the current crises. Panelists: Prof. Deborah Anker, Clinical Professor of Law and Director of the Harvard Law School Immigration and Refugee Clinical Program; Prof. Dr. Iris Goldner Lang, Fulbright Scholar and Visiting Professor at Harvard Law School; Prof. Gerald Neuman, the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law Co-Director, Human Rights Program at Harvard Law School.

Sponsored by the Human Rights Program and the Harvard Immigration and Refugee Clinic

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March 6, 2015

March 9-10: “The Role of African Women in the Post 2015 Development Agenda and +20 Beijing”


March 9-10, 2015


“The Role of African Women in the Post 2015 Development Agenda &  +20 Beijing”


9:00 a.m.- 6:00 p.m.
Austin Hall (on March 9)
Wasserstein Milstein AB (on March 10)

Please join the Human Rights Program, Urgent Action Fund–Africa, and the Ford Foundation-East Africa Office for a two-day round table discussion on the role of African Women in the Post 2015 Development Agenda and the Beijing +20. Review the program here.The meeting brings together approximately 50 African women leaders from across socio-economic and political arenas. They, and their US-based counterparts, include women’s rights advocates, femocrats, academics, United Nations representatives, corporate and media professionals. Together they will share success stories, challenges, innovations, knowledge, and history to advance and cement women’s leadership as part of the 2015 global agenda for integration, development and social change.

ALSO on March 9, a rescheduled event:


“Gender (Re)assignment: Legal, Ethical and Conceptual Issues”


12:00 p.m.
Pound Hall 102

Lunch will be served

Trans and intersex individuals face a series of legal, medical, and social challenges. This panel explores these overlapping issues, including: healthcare coverage of treatments such as gender reassignment therapy, the legal recognition of trans identities, intersexuality, and asexuality. Join us for a wide-ranging panel discussion with panelists Noa Ben-Asher, Visiting Associate Professor of Law, Harvard Law School; Elizabeth F. Emens, Isidor and Seville Sulzbacher Professor of Law, Columbia Law School; Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School; Matthew J.B. Lawrence, Academic Fellow, Petrie-Flom Center; with moderator I. Glenn Cohen, Professor of Law, Harvard Law School, and Faculty Director, Petrie-Flom Center.

February 12, 2015

Today, Feb. 12: “Law School Matters: Reassessing Legal Education Post-Ferguson” and other events


Today is packed with powerful events, starting at noon with Harvard Students for Inclusion’s two-day symposium, “Law School Matters: Reassessing Legal Education Post-Ferguson,” with a retrospective of race and social movements at HLS. In the early evening, starting at 5:15 p.m., there will be a teach-in on contextualization in legal education.

Finally, at 7:30 p.m., join the Muslim Law Students Association for dinner and a panel discussion on “The Role of Lawyers in Enabling and Justifying Torture,” featuring clinical instructor Deborah Popowski, professor of practice Alex Whiting and Center for Constitutional Rights’ Wells Dixon.

ENJOY.

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