A/HRC/49/46/Add.1 serving as State Supreme Court judges is only 15 per cent nationwide, even though they represent nearly 40 per cent of the national population.7 16. Minorities are also more likely to be used as scapegoats for conspiracists and xenophobes – providing simple answers to complex issues. Unfortunately, in recent years there has been a phenomenal growth in hate speech on social media, poisoning individual minds and proving toxic to social cohesion in the country. Many interlocutors told the Special Rapporteur about a growing feeling that the United States is becoming a darker, nastier and more divided society, moving away from being, to borrow from the United States Constitution, “a more perfect union”. 17. On the positive side, however, the Special Rapporteur was impressed by the significant changes taking shape in the United States in 2021 following the 2020 federal elections. The Biden administration has expressed its commitment to respect international human rights and to reconnect with the international community in this regard. There is also recognition on the part of the administration that its international credibility in terms of human rights is directly related to upholding human rights at home. The United States was recently elected as a member of the Human Rights Council and has issued a standing invitation to special procedures mandate holders of the Council. 18. The current administration has undertaken a number of positive steps to improve the situation and protect the rights of minorities, including the adoption of: (a) Executive Order 13985, setting out a comprehensive approach to advancing equity for all, including people of colour and others who have been historically underserved and marginalized; 8 (b) Executive Order 1403, advancing equity, justice and opportunities for Asian Americans, native Hawaiians and Pacific Islanders, including efforts to strengthen regular, meaningful and robust consultations with tribal nations; (c) Executive Order 13995 on ensuring equitable pandemic response and recovery legislation; (d) the Juneteenth National Independence Day Act, recognizing 16 June as a federal holiday commemorating the end of slavery in the United States; and (e) the COVID-19 Hate Crimes Act. Some States, including California, have recently adopted more robust human rights legislation and innovative policies and programmes to address hate speech and hate crimes targeting minorities more actively. It has also put into place specific measures for the use of minority languages in education and in accessing public and health services. The above-mentioned orders and other legislation and initiatives provide important additional protections for minorities beyond those found in federal civil rights laws such as Title VI of the Civil Rights Act of 1965 and the Equal Educational Opportunities Act of 1973. However, many States within the country do not have additional protections. 19. Existing civil rights legislation, mostly crafted nearly 60 years ago during the civil rights movement of the 1960s, is often more restrictive than international human rights law, particularly in relation to the prohibition of discrimination. In some cases, there must be evidence of a form of “intent to discriminate”, which can be difficult to demonstrate in order to determine what constitutes discrimination.9 Such approaches can be too narrow compared to international obligations, and can therefore lead to situations where legislation, policies or practices are deemed not discriminatory under United States law yet breach international human rights obligations. 20. There is an urgent need both to adopt comprehensive national legislation and to revamp existing piecemeal and narrow civil rights laws to conform more closely to universal human rights obligations. The Special Rapporteur is of the view that while the civil rights laws of the 1960s were important, essential and well suited to that particular social and political context, more than half a century later there needs to be a legislative update to handle 7 8 9 Alicia Bannon and others, “State Supreme Court diversity”, Brennan Center for Justice, New York University, 23 July 2019 (see https://www.brennancenter.org/our-work/research-reports/statesupreme-court-diversity). See https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-orderadvancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/. The Supreme Court ruled in Alexander v. Sandoval (532 U.S. 275 (2001)) that a private citizen cannot pursue a case under Title VI of the Civil Rights Act of 1964 based on discriminatory effects (what is known as “disparate impact”), although United States federal agencies can. 5