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Rights Archives: Rights to water and sanitation

John Doe et al. v. Regional School Unit 26, No. 7455/2001, Decision 2014 ME 11

On 30/01/2014 in

Year: 2014 (Date of Decision: 30 January, 2014)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Rights to water and sanitation; LGBTI

Summary Background: Susan Doe is a transgender girl. Her identity as a girl is accepted by all parties and the diagnosis of her gender dysphoria is not disputed. The issue of her use of communal girl’s bathroom was not raised until September 2007, her fifth-grade year, when pressure started to come from other students and their families. As a response to this pressure, the school terminated Susan’s use of the girls’ bathroom and required her to use the single-stall, unisex staff bathroom. In her sixth-grade year at Orono Middle School, she was also denied use of the girl’s bathroom and instead required to use a separate, single-stall bathroom.

Holding: This case is an appeal by John and Jane Doe, the parents of Susan Doe, of a summary judgement from the Superior Court that was in favour of the Regional School Unit 26 against the Doe family. The family argued that the school’s decision to discontinue Susan’s use of a communal bathroom consistent with her gender identity was a violation of the prohibition of discrimination on the ground of sexual orientation and gender identity under the Maine Human Rights Act (MHRA) as amended in 2005. The Regional School Unit 26, for its part, argued that the nondiscrimination provision of the MHRA conflicts with the provisions regulating sanitary facilities in schools entailed in the Maine Revised Statute (20-A M.R.S. section 6501).

The Maine Supreme Judicial Court thus considered two issues: whether there was a conflict between the provisions of the two statutes; and whether the exclusion of Susan Doe from communal girl’s bathroom violated the Maine Human Rights Act.

In particular, the Court looked into the Public Accommodation section in the Maine Human Rights Act (section

The opportunity for every individual to have equal access to places of public accommodation without discrimination because of race, color, sex, sexual orientation, physical or mental disability, religion, ancestry or national origin is recognized as and declared to be a civil right.
and the Sanitary Facilities provision in Maine Revised Statute (20-A M.R.S. §6501). The former prohibited discrimination based on sexual orientation in public accommodations. The Court held that an elementary school is a place of public accommodation. The latter required a “school administrative unit shall provide clean toilets in all school buildings, which shall be…separated according to sex and accessible only by separate entrances and exits.” [paras. 14, 16 and 17 ].

The Court held that these statutes served different purposes and they were reconcilable by adopting a consistent reading. The public-accommodations and educational-opportunities provisions of the MHRA aimed to prohibit discrimination based on sexual orientation and to ensure equal enjoyment of and access to educational opportunities and public accommodations and facilities. The sanitary facilities provision on the other hand aimed to establish cleanliness and maintenance requirements for school bathrooms. It did not purport to establish guidelines for the use of school bathrooms and offered no guidance concerning how gender identity relates to the use of sex-separated facilities. It was the responsibility of each school to make its own policies concerning how to use these public accommodations and to ensure such policies comply with the MHRA [para. 19].

The Court held that the ban on Susan’s use of the girls’ bathroom constituted discrimination based on her sexual orientation. The Court refuted the defence of the School that it had to comply with the provision for sex segregation in sanitary facilities under the M.R.S. The Court asserted that the decision of the school to discontinue the use by Susan of the girl’s bathroom was not based on a change of her status, but solely on complaints by others. The decision was adversely affecting Susan’s psychological wellbeing and educational success. The Court established that this discrimination based on Susan’s sexual orientation violated the MHRA [para. 22].

Link to Full Case: http://www.maine.gov/mhrc/doe.pdf

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Amparo No. 631/2012 (Independencia Aqueduct)

On 08/05/2013 in

Year: 2013 (Date of Decision: 8 May, 2013)

Forum, Country: Supreme Court; Mexico

Standards, Rights: Right to adequate housing; Rights to water and sanitation; Right to free, prior and informed consent; Right to an adequate standard of living; Indigenous people

Summary Background: The Mexican Government approved a large-scale water supply and construction project involving the transmission of around 60 million cubic metres of water from the “El Novillo” dam to the Sonora river basin to supply the city of Hermosillo. The Yaqui tribe (the initial appellants) claimed the project was in violation of their rights to territory, consultation and to a safe environment and sought a writ for the protection of their constitutional rights (an “amparo”). The group argued the river is a source of both economic and cultural sustenance and that they were, by law, holders of 50 per cent of the water, as provided for in a presidential decree.

The Fourth District Court found in favour of the Yaqui tribe. SEMARNAT (the federal environmental agency) appealed to the Supreme Court of Justice.

Holding: The Supreme Court upheld the Fourth District Court’s decision in favour of the Yaqui tribe and maintained that the State of Mexico had erred in failing to inform or consult the tribe at first instance [p. 88]. Upon request for further clarification from the appellants, the Supreme Court issued a decision expressly outlining the conditions to be met by the State; namely, the project was to be halted until proper consultation was effected between the State and the Yaqui tribe [p. 86].

The Supreme Court ordered that such consultation be prompted in accordance with the appropriate tribe customs, that it outline any irreversible damage caused by the project, and that a finding of any violations may result in the project being stopped [p. 83].

Additional Comments: Since this decision was issued, it has been noted that enforcement of the judgement has been poor and consultations with the Yaqui tribe are yet to take place. This was the first time the Inter-American standards on the right to consultation with indigenous communities was acknowledged in Mexico.

Link to Full Case: http://www.escr-net.org/es/node/365316, English translation accessible at http://www.escr-net.org/node/365312

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South Fork Band Council and others v. United States Department of the Interior

On 03/12/2009 in

Year: 2009 (Date of Decision: 3 December, 2009)

Forum, Country: Court of Appeals, United States of America

Standards, Rights: Right to free exercise of religion; Rights to water and sanitation; Right to adequate housing; Right to health; Indigenous people

Summary Background: The plaintiff appellants comprised the South Fork Band Council of Western Shoshone Nevada and other tribes and organizations (“the Tribes”). The Tribes sought an emergency injunction regarding the approval of a gold mining project by the US Department of Interior and its Bureau of Land Management (“BLM”) located in a sacred site. The project involved ten years of mining and up to three years of ore processing, and would allegedly create a “substantial burden to the exercise of religion.” Domestic law prohibits governmental entities from imposing such burdens unless the government can show that the practice is in furtherance of a “compelling governmental interest” and is the “least restrictive means” of furthering that interest (US Code §2000bb-1). The injunction was denied by the Federal District Court. The appellants alleged violations of the Federal Land Policy Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) and sought an injunction to be granted on appeal.

Holding: To be granted injunctive relief, the Court required that the appellants demonstrate they were likely to “suffer irreparable harm” if a preliminary injunction were denied, that the balance of equities tipped in their favour and that an injunction was in the public interest [para. 14]. In addition, it was necessary to show the BLM’s actions were either arbitrary and capricious or contrary to law [p. 15828].

While the Court declined to find that the appellants had demonstrated the likelihood of success for their FLPMA claims given the in-depth Environmental Impact Statement undertaken by the respondents in consultation with the Tribes and public over a two-year period, it did grant an injunction regarding the NEPA actions to allow a study that adequately considered the environmental impact of “millions of tons of refractory ore,” the adverse impact on local springs and streams, and the extent of fine particulate emissions [pp. 15828 and 15831-15840].

Additional Comments: This case is relevant to the broader framework of issues raised by international human rights bodies condemning the failure of US federal policy to protect Indian land rights and environmental law (see, for instance, the western Shoshone petition to the UN Committee on the Elimination of Racial Discrimination (2006) and the Inter-American Commission on Human Rights (2002).)

Link to Full Case: http://cdn.ca9.uscourts.gov/datastore/opinions/2009/12/03/09-15230.pdf

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Lindiwe Mazibuko & Others v. City of Johannesburg & Others, Case CCT 39/09, [2009] ZACC 28

On 08/10/2009 in

Year: 2009 (Date of Decision: 8 October, 2009)

Forum,Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Rights to water and sanitation

Summary Background: This case considers the lawfulness of a project the City of Johannesburg piloted in Phiri in early 2004 that involved re-laying water pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the six kiloliters per household monthly free basic water allowance.

Holding: The Court held that the right of access to adequate water protected under the Constitution did not require the State to provide upon demand every person with sufficient water, but rather required the State to take reasonable legislative and other measures to realize achievement of the right within available resources [para. 50].

In the Court’s estimation, the free basic water policy established by the City of Johannesburg, which charged consumers for use of water in excess of the free basic water allowance of six kiloliters, fell within the bounds of reasonableness [para. 9]. In elaborating on the reasonableness test and delineating the court’s role as regards the State’s positive obligations, the decision states, “the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways. If government takes no steps to realize the rights, the courts will require government to take steps. If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness…. Finally, the obligation of progressive realization imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realized” [para. 67]. The Court affirmed the democratic value of litigation on social and economic rights. It noted that the applicants’ case required the City to account comprehensively for the policies it has adopted and establish that they are reasonable [paras. 160-163].

On the issue of minimum core protection of the right to water, the Constitutional Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes “sufficient water”, as this is a matter best addressed in the first place by the government [paras. 56 and 61-68].

Additional Comments: This case reflects a deferential approach by the Court and in particular, a reluctance to interfere in matters it deems as falling within the executive and legislative spheres.

Link to Full Case: http://www.saflii.org/za/cases/ZACC/2009/28.html

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Mendoza Beatriz Silva et al v. State of Argentina et al, File M. 1569. XL

On 08/07/2008 in

Year: 2008 (Date of Decision: 8 July, 2008)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Right to life; Rights to water and sanitation; Right to health

Summary Background: This case was filed by residents of the Matanza/Riachuelo basin against the national Government of Argentina, the Province of Buenos Aires, the City of Buenos Aires and several private companies. The suit sought compensation and a remedy for the environmental damage stemming from pollution of the basin. The petitioners further demanded the halting of contaminating activities.

Holding: The Court decided in favour of the petitioners and ordered the Government respondents to take affirmative measures to improve the residents’ quality of life, remedy the environmental damage and prevent future damage.

In its decision, while the Court did not explicitly frame the analysis within human rights law, it focused on issues that have dramatic impact on and relevance for human rights, including the rights to life, health, water, sanitation and a healthy environment.

The Court established an action plan mandating the Government agency responsible for the Matanza/Riachuelo basin to undertake the following: facilitating better information flow to the public [para. 17. II]; containing and cleaning up industrial pollution [para. 17. III]; expanding water supply as well as sewer and drainage facilities [para. 17, VI-VIII]; creating an emergency health plan [para. 17, IX]; and adopting an international monitoring framework as a yardstick to assess compliance with the plan’s goals. The Court directed the goal should primarily be to improve the quality of life for residents [para. 17, I].

Additional Comments: Although the case did not adopt an explicit human rights approach, it clearly highlighted the State’s duty to respect, protect and fulfil rights. The remedies ordered are particularly comprehensive and a mechanism for monitoring compliance and enforcement is included.

Link to Full Case: Accessible at: http://www.escr-net.org/docs/i/1469153. English translation accessible at: http://www.escr-net.org/docs/i/1469150

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Case of the Sawhoyamaxa Indigenous Community

On 29/03/2006 in

Year: 2006 (Date of Decision: 29 March, 2006)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Indigenous people

Summary Background: The Sawhoyamaxa Community has historically lived in the lands of the Paraguayan Chaco, which since the 1930s have been transferred to private owners and gradually divided. This increased the restrictions for the indigenous population to access their traditional lands, thus bringing about significant changes in the Community’s subsistence activities and finally caused their displacement.

Holding: The Court found various violations of the ACHR, such as of article 8 and 25 (right to a fair trial and judicial protection), article 21 (right to property), article 4(1) (right to life), and article 3 (right to recognition as a Person before the Law), all of them in relation to article 1(1) (the obligation to respect rights) [paras. 112, 144, 178 and 194]. The Court ordered the Paraguayan government to adopt measures for returning the ancestral lands to the Community within three years [para. 215], to provide basic goods and services and implement an emergency communication system until they recovered their land [para. 230]. Moreover, a development fund for the Community in the amount of one million US dollars had to be created [para. 224], compensation in the amount of 20,000 US dollars was to be paid to the families of the 17 persons who died as the result of the forced displacement of the Community [para. 226] as well as for non-pecuniary damages, costs and expenses [para. 239].

Additional Comments: However, in the years following the judgement no progress was made toward the implementation of the judgements and the communities decided to unite their efforts and to ask Amnesty International to help them set up an international campaign designed to put pressure on the government.

The fact that the two communities were in the exact situation and undertook joint actions may have been an important factor in the enforcement process.

Link to Full Case: http://www.corteidh.or.cr/docs/casos/articulos/seriec_146_ing.pdf

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