Yuvraj Joshi
Yuvraj Joshi is an Assistant Professor at Brooklyn Law School, where he teaches constitutional law and writes on issues of equality. He is also a Faculty Affiliate at the UCLA Promise Institute for Human Rights and a Research Scholar at the UC Berkeley Miller Institute for Global Challenges and the Law.
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The Supreme Court recently departed from this approach in Students for Fair Admissions (SFFA) v. Harvard, where it struck down longstanding race-conscious admissions programs. The plaintiff in SFFA leveraged resentments among white and Asian American communities to oppose affirmative action and the Court rewarded legal tactics that exploited such resentment. Rather than emphasizing diversity’s universal benefits, as previous rulings had done to reduce resentment, the Court endorsed a “zero-sum” perspective that saw the success of Black and Latinx students as an acceptable basis for others’ resentment. The Court also promoted a “colorblind” ideology that catered to white resentment while sustaining inequities, which could further provoke minority groups’ resentment.
While legal scholars have emphasized the seismic shift in equal protection law marked by SFFA v. Harvard, comparatively little attention has been paid to the accompanying shift in the Court’s responses to resentment. This Article helps readers understand this shift by introducing a novel framework categorizing past judicial postures toward racial resentment: (1) Vindication, in which justices endorsed resentment by highlighting the perceived cost of racial justice measures on white people; (2) Mitigation, where justices downplayed the role of race and racial justice to assuage resentment against affirmative action; and (3) Resilience, in which justices resisted and actively contested such resentment.
Viewing SFFA v. Harvard through the lens of this tripartite framework yields several insights. First, labeling the Court’s unabashed validation of resentment as “vindication” makes clear that in this case, the Court departed from decades of attempts to mitigate racial resentment through doctrine. This shift is particularly worrisome because of the threat that such racial resentment poses to a multiracial democracy. Recognizing the disadvantages of vindicating resentment, legal scholars may be tempted to call for a return to the status quo of the past half-century: “mitigation” of resentment. However, mitigating approaches have failed to foster social cohesion and perversely incentivized continued opposition to racial justice policies. Identifying an alternate “resilience” approach demonstrates that reflexively accepting resentment as legitimate and embedding it into law are not the only paths forward. Instead, justices, advocates, scholars, and others can strive to safeguard inclusive laws against backlash rooted in racial grievances.
Using unpublished archival documents, the Article examines how Black advocates throughout history approached compromises on equal rights. It examines how figures like Booker T. Washington, W. E. B. Du Bois, Martin Luther King, Jr., Bayard Rustin, and Fannie Lou Hamer conceived of historic compromises, what kinds of compromises they were willing and unwilling to make, and when they were prepared to sacrifice more ambitious goals for modest gains. This historical account shows that even “compromising” figures distinguished between principled and unprincipled compromises, and how pressures from “uncompromising” Black activists sometimes facilitated more just and effective outcomes—findings that prove useful for modern-day equality debates.
The Article then examines court decisions that have been central to making and breaking America’s racial equality compromises. This legal analysis reveals that American society is currently constrained by previous judicial compromises that have both failed to secure equality and curtailed society’s ability to battle inequality. Competing forces—from a Black Lives Matter movement demanding racial justice to a Roberts Court ready to unravel longstanding equality precedent—are now driving the United States to reconsider these earlier compromises. Unfortunately, the problematic features from the racial equality compromises of the past are recurring in those proposed for the present.
Ultimately, this Article investigates how past compromises might help us approach present and future ones. It describes common democracy-constraining features of compromises, including their disregard for fundamental humanity, drawing of false equivalences, exclusion of subordinated groups, emboldening of dominant groups, and endangerment of long-term change. The Article applies this framework to current debates over policing, voting rights, the Senate filibuster, and Supreme Court reform, and, using lessons from history, cautions against accepting democracy-constraining features in these contexts. This Article thus reconsiders the value of compromise by learning from Black advocates who lived through the consequences of past equality compromises.
This Article surfaces legal claims—here called “peace–justice claims”—that address the relationship between ameliorating racial inequality and achieving peace. Using unpublished archival documents, it tells the story of how Americans embroiled in early desegregation debates sought competing visions of peace that either included or excluded justice. Furthermore, it demonstrates how the Supreme Court’s landmark decision in Cooper v. Aaron arbitrated those claims in favor of integration. This Article also traces how those claims have evolved and how the Court has used peace and justice considerations to limit rather than advance minority rights. This analysis shows that intertwined arguments about justice and peace lie at the heart of equal protection doctrine.
Using sources of both legal and social history to identify peace–justice claims, this Article contributes to a “new civil rights history,” expanding the scope of legal actors beyond lawyers and judges to include policymakers, social activists, and lay people. Juxtaposing minority claims with court-developed legal doctrine highlights the Supreme Court’s inadequate recognition of the peace–justice interests at stake. Proposing “No Justice! No Peace!” as a corrective to the law, this Article argues that courts should recognize the exclusion and estrangement of Black people as a basis for minority-protective interpretations of the Constitution.
This attention to peace–justice claims is enriched by insights from transitional justice, a field that aims to help societies to overcome conflict and oppression. Although societies require both peace and justice, these values sometimes appear in tension, leading to what is internationally known as the “peace versus justice dilemma.” Viewing American legal cases as sites of this dilemma draws attention to whether courts seek a “negative peace” based on the suppression of social conflict or a “positive peace” grounded in the pursuit of social justice. This Article demonstrates why and how American law should strive for positive peace by addressing structural inequalities.
This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While earlier decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized “distancing” the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. By analyzing opinions concerning school desegregation, voting rights, affirmative action, and disparate impact in terms of reckoning and distancing, this Article provides key insights into racial equality law’s history as well as a glimpse into its likely future under the Roberts Court.
Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis highlights how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited the United States’ racial transition. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase.
As protestors demand a reckoning with America’s legacies of racism, the Roberts Court appears poised to leave the past behind. A distancing jurisprudence limits not just what the Court sees as constitutionally required, but what it sees as constitutionally permissible in the pursuit of transition. This Article considers how advocates can seek to reorient race jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.
(This article received an honorable mention for the 2021 Association of American Law Schools Mark Tushnet Prize in Comparative Law.)
Justice Kennedy’s measurability requirement is the single most important feature of his opinion. The constitutionality of race-conscious admissions going forward will depend on how universities measure diversity. No wonder critics of affirmative action are clamoring for disclosure of ever more data. The dilemma facing the nation’s universities is how to measure diversity while knowing that opponents of race-conscious admissions will utilize those metrics in litigation to challenge affirmative action programs.
In seeking to address this dilemma, university administrators reading Fisher may believe that they are required to measure diversity in more precise and even numerical terms. However, this Piece cautions against following that misguided impulse in the context of race-conscious admissions based on three primary observations. First, diversity-based affirmative action programs have survived past constitutional challenges in part because they are imprecise as to which individuals benefit from them and how much benefit those individuals receive. Second, this lack of precision may minimize some of the social divisiveness associated with race-conscious admissions policies, which may help diffuse political opposition to affirmative action and diminish the constitutional harms perceived by some Justices and potential litigants. Finally, Fisher does not actually require universities to measure diversity in more precise or numerical terms than previous affirmative action decisions. Given the current political climate, universities’ ability to maintain affirmative action programs under Fisher will depend on their ability to grasp and apply these principles.
To demonstrate the merits of imprecision in measuring diversity, this Piece proceeds in three parts. Part I surveys some key cases on affirmative action to show how and why the Court has been concerned with numerical considerations of race in college admissions. Part II examines two uses of numbers that have received scrutiny in cases leading up to Fisher: (1) the gathering of data on minority enrollment and student body diversity and (2) the use of metrics to describe diversity goals, especially the concept of “critical mass.” Part III studies scrutiny of the University of Texas’s admissions program in Fisher and teases out lessons for how universities should structure their admissions programs in light of Fisher. The Piece concludes that a degree of imprecision remains a requirement of constitutionally permissible affirmative action after Fisher, and universities interested in enrolling a diverse student body should therefore measure diversity using educational values rather than numerical metrics.
No wonder. Until Fisher, Justice Kennedy had never voted to uphold race- conscious affirmative action. In his 2003 dissent in Grutter v. Bollinger, he derided the majority for accepting the University of Michigan Law School’s use of the term “critical mass” to justify race-based affirmative action in admissions. No one would have predicted then that he would go on to deliver an opinion upholding affirmative action that invokes Grutter no less than a dozen times. How did Justice Kennedy go from affirmative action dissenter to defender?
Bakke is the key to understanding Justice Kennedy’s supposed reversal in Fisher. Commentators have missed this point, likely because Justice Kennedy’s Fisher opinion does not directly cite Bakke even once. But Justice Kennedy’s Grutter dissent adhered to Justice Powell’s opinion in the 1978 decision Regents of the University of California v. Bakke. In Bakke, Justice Powell allowed limited use of racial preferences in admissions decisions in the pursuit of a diverse student body so long as it satisfied strict scrutiny. “The opinion by Justice Powell, in my view, states the correct rule for resolving this case,” Kennedy wrote.
Justice Kennedy admired Justice Powell’s rule in Bakke yet detested its application in Grutter. He cautioned that Grutter diverged from Bakke in ways that would “perpetuate the hostilities that proper consideration of race is designed to avoid.” Fisher presented him with an opportunity to reset the shape and trajectory of affirmative action in line with Bakke.
This Essay demonstrates that we cannot understand the ruling in Fisher without looking at Bakke. Part I surveys the Bakke-Grutter-Fisher line of cases to explain how Grutter diverged from Bakke and why this bothered Justice Kennedy. Part II demonstrates how Fisher aims to preserve an understanding of affirmative action that is informed by Bakke and untainted by Grutter. Not only does Fisher describe affirmative action programs and precedent in ways that maintain fidelity to Bakke, but it also disregards aspects of Grutter that diverged from Bakke, including the use of critical mass as the measure of diversity. Part III identifies the concerns of social cohesion animating Justice Kennedy’s return to Bakke and traces the evolution of those concerns since Bakke. While Bakke’s concern for social cohesion focused on resentment among whites likely to arise from any use of racial preferences, Fisher is not limited in this way. Part IV concludes that universities interested in enrolling a diverse student body would do well to read Justice Powell’s opinion in Bakke, reconsider the use of critical mass to justify race-based affirmative action, and recognize how concerns of social cohesion shape the form of constitutionally permissible affirmative action.
This Essay demonstrates how Obergefell shifts dignity’s focus from respect for the freedom to choose toward the respectability of choices and choice makers. Obergefell’s dignity is respectable in three ways. It depends on same-sex couples (1) choosing the heterosexual norm of marriage; (2) being and showing themselves to be worthy of marriage; and (3) being socially acceptable and accepted. As importantly, I show that Obergefell’s reasoning inflicts its own dignitary harms. It affirms the dignity of married relationships, while dismissing the dignitary and material harms suffered by unmarried families. It demands that same-sex couples demonstrate the same love and commitment that are taken for granted in the case of heterosexual couples. And, it implies that legal protection of dignity depends on the prior social acceptance of gay persons and relationships. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.
Based on interviews with 61 lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in four Sri Lankan cities, “All Five Fingers Are Not the Same” examines abuses against transgender people and others who do not conform to social expectations of gender and sexuality. Transgender people experience arbitrary detention, police mistreatment, and discrimination accessing health care, employment, and housing. These violations take place in a legal landscape that fails to recognize the gender identity of transgender people without abusive requirements and makes same-sex relations between consenting adults a criminal offense.
As the government implements security sector reform and adopts a new constitution, it should take steps to protect the human rights of LGBTI people. Sri Lanka should recognize all citizens according to the gender with which they identify and issue documents that reflect that gender, without requiring medical diagnosis or treatment. And it should eliminate laws and practices that discriminate on the basis of gender identity and sexual orientation so LGBTI people can live free of abuse.
As historian Jeanne Theoharis writes, some Americans invoke King to hold up “the civil rights movement as the ‘right’ way to do [activism] and Black Lives Matter as the ‘wrong’ way.” Some of them interpret chants of “no justice, no peace” in the Black Lives Matter protests as violent departures from King’s legacy. Yet, that kind of contrast does not bear out in reality.
King may not have uttered the phrase “no justice, no peace,” which emerged as a rallying cry for racial justice decades after his assassination. Yet, he believed in the meaning of those words in his lifetime.
The Supreme Court recently departed from this approach in Students for Fair Admissions (SFFA) v. Harvard, where it struck down longstanding race-conscious admissions programs. The plaintiff in SFFA leveraged resentments among white and Asian American communities to oppose affirmative action and the Court rewarded legal tactics that exploited such resentment. Rather than emphasizing diversity’s universal benefits, as previous rulings had done to reduce resentment, the Court endorsed a “zero-sum” perspective that saw the success of Black and Latinx students as an acceptable basis for others’ resentment. The Court also promoted a “colorblind” ideology that catered to white resentment while sustaining inequities, which could further provoke minority groups’ resentment.
While legal scholars have emphasized the seismic shift in equal protection law marked by SFFA v. Harvard, comparatively little attention has been paid to the accompanying shift in the Court’s responses to resentment. This Article helps readers understand this shift by introducing a novel framework categorizing past judicial postures toward racial resentment: (1) Vindication, in which justices endorsed resentment by highlighting the perceived cost of racial justice measures on white people; (2) Mitigation, where justices downplayed the role of race and racial justice to assuage resentment against affirmative action; and (3) Resilience, in which justices resisted and actively contested such resentment.
Viewing SFFA v. Harvard through the lens of this tripartite framework yields several insights. First, labeling the Court’s unabashed validation of resentment as “vindication” makes clear that in this case, the Court departed from decades of attempts to mitigate racial resentment through doctrine. This shift is particularly worrisome because of the threat that such racial resentment poses to a multiracial democracy. Recognizing the disadvantages of vindicating resentment, legal scholars may be tempted to call for a return to the status quo of the past half-century: “mitigation” of resentment. However, mitigating approaches have failed to foster social cohesion and perversely incentivized continued opposition to racial justice policies. Identifying an alternate “resilience” approach demonstrates that reflexively accepting resentment as legitimate and embedding it into law are not the only paths forward. Instead, justices, advocates, scholars, and others can strive to safeguard inclusive laws against backlash rooted in racial grievances.
Using unpublished archival documents, the Article examines how Black advocates throughout history approached compromises on equal rights. It examines how figures like Booker T. Washington, W. E. B. Du Bois, Martin Luther King, Jr., Bayard Rustin, and Fannie Lou Hamer conceived of historic compromises, what kinds of compromises they were willing and unwilling to make, and when they were prepared to sacrifice more ambitious goals for modest gains. This historical account shows that even “compromising” figures distinguished between principled and unprincipled compromises, and how pressures from “uncompromising” Black activists sometimes facilitated more just and effective outcomes—findings that prove useful for modern-day equality debates.
The Article then examines court decisions that have been central to making and breaking America’s racial equality compromises. This legal analysis reveals that American society is currently constrained by previous judicial compromises that have both failed to secure equality and curtailed society’s ability to battle inequality. Competing forces—from a Black Lives Matter movement demanding racial justice to a Roberts Court ready to unravel longstanding equality precedent—are now driving the United States to reconsider these earlier compromises. Unfortunately, the problematic features from the racial equality compromises of the past are recurring in those proposed for the present.
Ultimately, this Article investigates how past compromises might help us approach present and future ones. It describes common democracy-constraining features of compromises, including their disregard for fundamental humanity, drawing of false equivalences, exclusion of subordinated groups, emboldening of dominant groups, and endangerment of long-term change. The Article applies this framework to current debates over policing, voting rights, the Senate filibuster, and Supreme Court reform, and, using lessons from history, cautions against accepting democracy-constraining features in these contexts. This Article thus reconsiders the value of compromise by learning from Black advocates who lived through the consequences of past equality compromises.
This Article surfaces legal claims—here called “peace–justice claims”—that address the relationship between ameliorating racial inequality and achieving peace. Using unpublished archival documents, it tells the story of how Americans embroiled in early desegregation debates sought competing visions of peace that either included or excluded justice. Furthermore, it demonstrates how the Supreme Court’s landmark decision in Cooper v. Aaron arbitrated those claims in favor of integration. This Article also traces how those claims have evolved and how the Court has used peace and justice considerations to limit rather than advance minority rights. This analysis shows that intertwined arguments about justice and peace lie at the heart of equal protection doctrine.
Using sources of both legal and social history to identify peace–justice claims, this Article contributes to a “new civil rights history,” expanding the scope of legal actors beyond lawyers and judges to include policymakers, social activists, and lay people. Juxtaposing minority claims with court-developed legal doctrine highlights the Supreme Court’s inadequate recognition of the peace–justice interests at stake. Proposing “No Justice! No Peace!” as a corrective to the law, this Article argues that courts should recognize the exclusion and estrangement of Black people as a basis for minority-protective interpretations of the Constitution.
This attention to peace–justice claims is enriched by insights from transitional justice, a field that aims to help societies to overcome conflict and oppression. Although societies require both peace and justice, these values sometimes appear in tension, leading to what is internationally known as the “peace versus justice dilemma.” Viewing American legal cases as sites of this dilemma draws attention to whether courts seek a “negative peace” based on the suppression of social conflict or a “positive peace” grounded in the pursuit of social justice. This Article demonstrates why and how American law should strive for positive peace by addressing structural inequalities.
This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While earlier decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized “distancing” the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. By analyzing opinions concerning school desegregation, voting rights, affirmative action, and disparate impact in terms of reckoning and distancing, this Article provides key insights into racial equality law’s history as well as a glimpse into its likely future under the Roberts Court.
Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis highlights how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited the United States’ racial transition. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase.
As protestors demand a reckoning with America’s legacies of racism, the Roberts Court appears poised to leave the past behind. A distancing jurisprudence limits not just what the Court sees as constitutionally required, but what it sees as constitutionally permissible in the pursuit of transition. This Article considers how advocates can seek to reorient race jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.
(This article received an honorable mention for the 2021 Association of American Law Schools Mark Tushnet Prize in Comparative Law.)
Justice Kennedy’s measurability requirement is the single most important feature of his opinion. The constitutionality of race-conscious admissions going forward will depend on how universities measure diversity. No wonder critics of affirmative action are clamoring for disclosure of ever more data. The dilemma facing the nation’s universities is how to measure diversity while knowing that opponents of race-conscious admissions will utilize those metrics in litigation to challenge affirmative action programs.
In seeking to address this dilemma, university administrators reading Fisher may believe that they are required to measure diversity in more precise and even numerical terms. However, this Piece cautions against following that misguided impulse in the context of race-conscious admissions based on three primary observations. First, diversity-based affirmative action programs have survived past constitutional challenges in part because they are imprecise as to which individuals benefit from them and how much benefit those individuals receive. Second, this lack of precision may minimize some of the social divisiveness associated with race-conscious admissions policies, which may help diffuse political opposition to affirmative action and diminish the constitutional harms perceived by some Justices and potential litigants. Finally, Fisher does not actually require universities to measure diversity in more precise or numerical terms than previous affirmative action decisions. Given the current political climate, universities’ ability to maintain affirmative action programs under Fisher will depend on their ability to grasp and apply these principles.
To demonstrate the merits of imprecision in measuring diversity, this Piece proceeds in three parts. Part I surveys some key cases on affirmative action to show how and why the Court has been concerned with numerical considerations of race in college admissions. Part II examines two uses of numbers that have received scrutiny in cases leading up to Fisher: (1) the gathering of data on minority enrollment and student body diversity and (2) the use of metrics to describe diversity goals, especially the concept of “critical mass.” Part III studies scrutiny of the University of Texas’s admissions program in Fisher and teases out lessons for how universities should structure their admissions programs in light of Fisher. The Piece concludes that a degree of imprecision remains a requirement of constitutionally permissible affirmative action after Fisher, and universities interested in enrolling a diverse student body should therefore measure diversity using educational values rather than numerical metrics.
No wonder. Until Fisher, Justice Kennedy had never voted to uphold race- conscious affirmative action. In his 2003 dissent in Grutter v. Bollinger, he derided the majority for accepting the University of Michigan Law School’s use of the term “critical mass” to justify race-based affirmative action in admissions. No one would have predicted then that he would go on to deliver an opinion upholding affirmative action that invokes Grutter no less than a dozen times. How did Justice Kennedy go from affirmative action dissenter to defender?
Bakke is the key to understanding Justice Kennedy’s supposed reversal in Fisher. Commentators have missed this point, likely because Justice Kennedy’s Fisher opinion does not directly cite Bakke even once. But Justice Kennedy’s Grutter dissent adhered to Justice Powell’s opinion in the 1978 decision Regents of the University of California v. Bakke. In Bakke, Justice Powell allowed limited use of racial preferences in admissions decisions in the pursuit of a diverse student body so long as it satisfied strict scrutiny. “The opinion by Justice Powell, in my view, states the correct rule for resolving this case,” Kennedy wrote.
Justice Kennedy admired Justice Powell’s rule in Bakke yet detested its application in Grutter. He cautioned that Grutter diverged from Bakke in ways that would “perpetuate the hostilities that proper consideration of race is designed to avoid.” Fisher presented him with an opportunity to reset the shape and trajectory of affirmative action in line with Bakke.
This Essay demonstrates that we cannot understand the ruling in Fisher without looking at Bakke. Part I surveys the Bakke-Grutter-Fisher line of cases to explain how Grutter diverged from Bakke and why this bothered Justice Kennedy. Part II demonstrates how Fisher aims to preserve an understanding of affirmative action that is informed by Bakke and untainted by Grutter. Not only does Fisher describe affirmative action programs and precedent in ways that maintain fidelity to Bakke, but it also disregards aspects of Grutter that diverged from Bakke, including the use of critical mass as the measure of diversity. Part III identifies the concerns of social cohesion animating Justice Kennedy’s return to Bakke and traces the evolution of those concerns since Bakke. While Bakke’s concern for social cohesion focused on resentment among whites likely to arise from any use of racial preferences, Fisher is not limited in this way. Part IV concludes that universities interested in enrolling a diverse student body would do well to read Justice Powell’s opinion in Bakke, reconsider the use of critical mass to justify race-based affirmative action, and recognize how concerns of social cohesion shape the form of constitutionally permissible affirmative action.
This Essay demonstrates how Obergefell shifts dignity’s focus from respect for the freedom to choose toward the respectability of choices and choice makers. Obergefell’s dignity is respectable in three ways. It depends on same-sex couples (1) choosing the heterosexual norm of marriage; (2) being and showing themselves to be worthy of marriage; and (3) being socially acceptable and accepted. As importantly, I show that Obergefell’s reasoning inflicts its own dignitary harms. It affirms the dignity of married relationships, while dismissing the dignitary and material harms suffered by unmarried families. It demands that same-sex couples demonstrate the same love and commitment that are taken for granted in the case of heterosexual couples. And, it implies that legal protection of dignity depends on the prior social acceptance of gay persons and relationships. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.
Based on interviews with 61 lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in four Sri Lankan cities, “All Five Fingers Are Not the Same” examines abuses against transgender people and others who do not conform to social expectations of gender and sexuality. Transgender people experience arbitrary detention, police mistreatment, and discrimination accessing health care, employment, and housing. These violations take place in a legal landscape that fails to recognize the gender identity of transgender people without abusive requirements and makes same-sex relations between consenting adults a criminal offense.
As the government implements security sector reform and adopts a new constitution, it should take steps to protect the human rights of LGBTI people. Sri Lanka should recognize all citizens according to the gender with which they identify and issue documents that reflect that gender, without requiring medical diagnosis or treatment. And it should eliminate laws and practices that discriminate on the basis of gender identity and sexual orientation so LGBTI people can live free of abuse.
As historian Jeanne Theoharis writes, some Americans invoke King to hold up “the civil rights movement as the ‘right’ way to do [activism] and Black Lives Matter as the ‘wrong’ way.” Some of them interpret chants of “no justice, no peace” in the Black Lives Matter protests as violent departures from King’s legacy. Yet, that kind of contrast does not bear out in reality.
King may not have uttered the phrase “no justice, no peace,” which emerged as a rallying cry for racial justice decades after his assassination. Yet, he believed in the meaning of those words in his lifetime.
Although squabbling over statistics has become routine in affirmative action cases, it acquires new significance with a deeply divided Supreme Court.