Lithuanian groups promote ‘irresponsible’ procedure to ‘reverse’ abortions

openDemocracy and LRT reveal that unproven ‘abortion reversal treatment’, supported by US Christian Right organisations, has reached Lithuania

Jurga Bakaitė  Tatev Hovhannisyan
15 December 2021

Illustration: Inge Snip

A doctor and NGOs in Lithuania are promoting a controversial ‘treatment’ that claims to be able to ‘reverse’ medical abortions, a joint investigation by openDemocracy and Lithuanian public broadcaster LRT can reveal.

The doctor – who was willing to prescribe medication for so-called ‘abortion pill reversal’ and who described a medical abortion as a form of “poisoning” – is linked to US Christian Right group Heartbeat International.

‘Abortion pill reversal’ (APR) is an unproven procedure that prescribes large doses of the hormone progesterone, to be taken after the first of two pills used for a medical abortion.

But the only trial into APR, in the US in 2019, was halted after some participants ended up in hospital with severe bleeding.

Earlier this year, openDemocracy’s global investigation into ‘abortion pill reversal’ revealed how the ‘treatment’ is spreading globally, including in Lithuania.

Following our investigation, health experts and lawmakers called for action from regulators to protect women from the spread of this controversial method.
‘It’s a normal thing’

Georgijus Gaidukevičius, a doctor in Vilnius, Lithuania’s capital, who offered a prescription for APR to an undercover reporter from openDemocracy, attempted to play down its risks.

“Why is this illegal?” he said. “It’s a normal thing. If a person is poisoned, one takes drugs. If one takes an abortion pill, it’s also poisoning, so we can prescribe antidotes.”

Gaidukevičius was speaking after being caught on a private messaging service, apparently willing to prescribe progesterone to ‘reverse’ a medical abortion.

“We will try to help you, but you will need to take some drugs,” he told our undercover reporter. We were given his details by a 24-hour APR hotline run out of the US by Heartbeat International.

Gaidukevičius – who is also an Orthodox priest as well as the founder of the Christian Medical Centre in Vilnius, where he works as a family doctor – claimed the “treatment” was safe, and that hormones were “not harmful”.

“Today is Sunday. I am […] not in Vilnius. Tomorrow I’ll have access to my computer at work and will write the prescription,” he told our reporter. He agreed to email it so that she could get the hormones at her local pharmacy.

Later, when confronted by LRT, he denied prescribing any hormones himself, saying he only gave openDemocracy contact details for another doctor who could do so.
Advice from the KNC ‘crisis pregnancy centre’

Abortion has been legal in Lithuania since 1955. Surgical terminations are available on request until the 12th week of pregnancy, and up to 22 weeks in some cases (for instance, if the woman’s life or health is at risk).

However, medical abortions are illegal, despite being declared safe by the World Health Organization. That’s why some Lithuanian women choose to buy abortion pills online for home use, which can lead to health risks.

Lithuania’s Free Society Institute (Laisvosios Visuomenes Institutas, LVI) is the only group offering publicly available information on APR in Lithuanian. LVI is an NGO that advocates “human dignity and life from conception to natural death” and “the natural family based on marriage and/or family ties”. It claims that “11% of crisis pregnancy centres” in the US offer the procedure, which has “saved the lives of over 1,000 babies”.

LVI often collaborates with the Krizinio Nėštumo Centras (KNC – literally ‘crisis pregnancy centre’) in Vilnius, which “seeks to prevent abortion in Lithuania”.

A journalist from LRT called the KNC hotline, claiming to be a pregnant woman who had recently taken the first pill for a medical abortion, but had changed her mind and now wanted to keep the pregnancy.

The consultant she spoke to immediately suggested she try APR, then offered a consultation with a gynaecologist. “Since progesterone is not registered in Lithuania, it is not used officially. But there is such an option abroad,” the consultant said.

After the call, the reporter received a text message from the consultant: “Do not take other pills. If you understand English, read about the ‘abortion reversal pill’. I or a doctor will call you later.”

Later, the KNC consultant told the reporter she had read online that “24 hours is a safe period” in which to try reversing an abortion. “You took the pill 12 hours ago. So, there you go, it’s not all bad. There are no guarantees, as you understand, but you can take some steps to find out,” she said.

The KNC consultant did not mention any risks involved in taking APR. She conceded that “it’s illegal in Lithuania, but women are taking it.”
‘Irresponsible’, a ‘low-probability experiment’

Progesterone is not in itself a dangerous drug. However, its use in high doses in APR has been called “dangerous to women’s health” and based on “unproven, unethical research” by the American College of Obstetricians and Gynecologists.

Esmeralda Kuliešytė, head of Lithuania’s Family Planning and Sexual Health Association, said that progesterone could be prescribed in rare cases to preserve a pregnancy threatened by infection or hormonal imbalance.

“But offering APR ‘treatment’ to women is irresponsible,” she told LRT. She also said that KNC is not a medical institution: “They don’t know what they are talking about. A woman should only go to a healthcare establishment and professional doctors.”

Vytautas Klimas from the Lithuanian Society of Obstetricians and Gynaecologists said that progesterone ‘treatment’ to reverse abortions “is not backed up by any scientific research”.

"Every such treatment is a low-probability experiment on a patient," he said.

There is pressure on us, gynaecologists, to send everyone to KNC

There have long been questions about KNC’s transparency. The centre claims to provide help to all women, including those who have had an abortion, but its website contains mainly anti-abortion content and testimonials from women who condemn abortion.

Earlier this year, the LRT documentary Colours (Spalvos) revealed that KNC had been calling women who had contacted them and pressuring them to reconsider their decisions to terminate pregnancies.

“There is pressure on us, gynaecologists, to send everyone to KNC. This was sought through the health ministry and the [Lithuanian parliament’s] health committee,” Rūta Nadišauskienė, then head of obstetrics and gynaecology at Kaunas Clinics, said in the documentary.

KNC runs high-profile ads, including on TV, and is frequently in the limelight because of its connections to powerful people.

It is supported by several celebrities including TV host Rolandas Mackevicius. In October 2020, Diana Nausėdienė, wife of the Lithuanian president Gitanas Nausėda, hosted an event for KNC, LVI and a number of other NGOs at the presidential palace. Human rights organisations criticised the event for “politicising abortions”.

Last month, LVI organised another conference (this time online) with the first lady and an MP attending, funded by the labour ministry.
Progesterone not approved for use in pregnancy

Asked about offering unproven progesterone treatment, KNC told us, in a written response, that it simply provided information on “the APR method used in global practice”.

“There are women who buy [abortion] pills illegally and change their minds after taking them. In this case, the progesterone pill is used in some countries,” KNC said.

“We believe that a woman has the right to be informed about the various options and to make the most appropriate decision while consulting with her doctor.”

The Lithuanian health regulator allows for the prescription of drugs outside of their intended purpose only in exceptional cases. The decision must be taken by a panel of doctors and requires the patient’s written consent. Even then, the dosage and the course of treatment must be based on scientific evidence.

The regulator confirmed to LRT that progesterone is not included in the country’s register of medicinal products for use in pregnancy. It is prescribed to treat premenstrual syndrome, irregular periods and premenopausal or menopausal symptoms.

“To the health ministry’s knowledge, there are no clinical trials confirming that progesterone could help preserve pregnancy after the intake of drugs intended to terminate the pregnancy,” the ministry said.

Sunni Islamic jurisprudence, sex reassignment surgery and transgender rights

The Sunni religious establishment is resisting transgender demands by banning gender affirming surgery – while allowing “sex correction” for intersex people

Nora Noralla
13 December 2021, 12.00am

Modern Sunni Islamic scholarship started examining the issue of transgenderism in the 1980s |
Shaun Higson / Cairo / Alamy Stock Photo. All rights reserved

“Today we are seeing an obsession with unwarranted sex change, which not only goes against basic human nature but is unanimously rejected by all revealed religions.” Ahmed Al-Tayeb, the grand imam of Al-Azhar – Egypt’s highest religious authority – made this statement on his Facebook page just two days after the Transgender Day of Remembrance 2021. To understand his position, one must examine how Sunni Islam views what’s known as gender affirming surgery, or sex reassignment surgery.

In many countries, sex reassignment surgery refers to operations that some (but not all) transgender people undergo so that their body aligns with their gender identity. However, the term is used differently in several Sunni Muslim-majority countries including Morocco, Saudi Arabia, UAE, Egypt, Kuwait, Jordan and Oman.

Modern Sunni Islamic scholarship started examining the issue of transgenderism in the 1980s, when several fatwas (religious rulings) were issued, most notably from Al-Azhar in 1988 and the Islamic Fiqh Council of the Muslim World League in 1989. Both fatwas used problematic concepts that pathologise transgenderism to address the issue.

The Al-Azhar fatwa stated: “It is permissible to perform the operation for a biological need, to reveal any hidden male or female organs,” but not “at the mere wish to change one’s sex from woman to man, or vice versa”.

“Sex change” vs “sex correction”

Thus, for Sunni clerics, there is a distinction between “sex change”, referring to gender affirming surgeries for transgender people, whose gender differs from the sex they were assigned at birth, and what they term “sex reassignment” or “sex correction”, by which they mean surgeries conducted on intersex individuals, who are born with characteristics that vary from what is considered typical for female or male bodies. Only the latter is permitted according to this interpretation of Sharia.

Following these fatwas, policymakers and medical authorities began to adjust their positions to bring them in line with the religious decision. In 2003, the Egyptian medical syndicate was the first to officially ban its doctors from performing “sex change” surgeries in its code of ethics. At the same time, it introduced a new term called “tṣḥīḥ al-ǧns”, which translates as “sex correction”, to allow sex reassignment surgeries for intersex individuals.

Legal changes

Others soon followed in Egypt’s footsteps and amended or introduced new medical responsibility laws to ban “sex change” surgery and only allow “sex reassignment” (or “sex correction”) for intersex people. Legislative changes were made in the UAE in 2016, Jordan in 2019, Oman in 2019, and Morocco in 2021, while Saudi Arabia and Kuwait have de facto bans through medical guidelines and judicial opinions.

Yasser Jamal head of the sex correction surgical centre at King Abdulaziz University Hospital in Saudi Arabia stated in 2018: “Sharia has prohibited sex change for normal individuals, we only perform sex corrections here and not sex change and only for people who biologically need it.”

Religious authorities should reform their positions on transgender issues and stop their interference in medical matters

In 2017, a similar statement came from Amin Al Amiri, assistant undersecretary at the Ministry of Health in the UAE: “We want to clarify the difference between the terms ‘sex change’ and ‘sex correction surgery’, as sex change surgery remains illegal in the UAE.”

In Egypt, in 2020, Osama Abdel-Hay, head of the medical syndicate’s sex correction committee indicated that the committee only approved intersex cases for surgery. Meanwhile, Morocco amended its civil status law in 2021 to only allow surgery and legal gender recognition for individuals medically identified as intersex.

As a result, transgender people in these countries who seek surgery are faced with having to travel abroad to countries like Thailand or Turkey. Or they can have the surgery in underground, expensive and ill-equipped clinics at home. The surgeries can be risky and lead to medical complications that these clinics can’t cope with, as was the case with Ezz El-Din, a 26-year-old transgender man who died after botched surgery in an underground Egyptian clinic.

Legal recognition

Even those who are wealthy and privileged enough to find a way to have surgery are still faced with another major challenge – obtaining legal gender recognition (LGR). Because these Sunni Muslim-majority countries rely on principles of Sharia in their civil registration laws, judiciaries reject requests for new papers, citing Sharia as the reason.

In 2004, a Kuwaiti appeal court rejected a request from a transgender woman to be granted LGR; in 2016, an Egyptian administrative court refused the same request from a transgender man; and in 2019, the UAE’s Federal Supreme Court rejected a request from three transgender men.

These three judgements came from three different jurisdictions, but they all cited the same reason – that the plaintiffs underwent “sex change” surgeries and not “sex reassignment” surgeries. Therefore, they had violated Sharia and would not be granted LGR.

State persecution

Denying LGR often leaves transgender people marginalised and vulnerable, facing limits on their rights to access healthcare, employment, and housing. Furthermore, authorities in these countries often use laws regarding “public decency”, “crossdressing” and “sodomy” to arrest, harass and prosecute transgender people.

In 2017, two Pakistani transgender women were “tortured to death” by the police in Riyadh, after authorities raided a house and arrested 35 people for “cross-dressing”. In 2020, a transgender woman was sentenced to three years in prison in Egypt for “inciting debauchery” and in 2021, a Kuwaiti transgender woman was sentenced to two years in prison and a fine of 1,000 Kuwaiti dinars ($3,315) for “misusing phone communication” by “imitating the opposite sex”.

All these policies and practices violate transgender people’s fundamental rights, including the right to health, education, employment, housing, enjoyment of life, bodily integrity and equality before the law. Authorities in Egypt, Oman, UAE, Jordan, Saudi Arabia, Morocco, Kuwait and elsewhere should allow transgender people access to gender-affirming medical care, should drop the term “sex correction” or “gender correction” and should revise the definition of “sex reassignment” to include the transgender population.

These states should also establish clear and accessible legal gender recognition mechanisms modelled on an individual’s right to self-identification. Furthermore, religious authorities should reform their positions on transgender issues and stop their interference in medical matters.

Myanmar’s Spring Revolution: a history from below

Women factory workers took to the streets and catalysed

 a mass movement

Ko Maung
15 December 2021, 7.00am

Anti-coup protestors in Myanmar |
Kaung Zaw Hein/Sipa USA/Alamy Stock Photo. All rights reserved

A year before the February 2021 military coup in Myanmar, striking workers from the Tai Yi shoe factory protested in front of their workplace to demand an increase in their daily wages. To raise their spirits, the workers sang the revolutionary anthem, ‘Thway Thitsar’.

In Myanmar’s Spring Revolution, the mass movement against the 2021 coup, ‘Thway Thitsar’ could be heard all over the country. “The present is critical, brothers and sisters. We must have solidarity.” A regular feature of workers’ protests, the anthem had now become part of the revolutionary movement. I say this not to highlight the song itself, but to call attention to the history of worker organising and struggle in Myanmar – a history that laid the groundwork for the Spring Revolution. Simply put, had workers not previously organised unions inside their factories, the protests that catalysed the Spring Revolution would not have happened. The February 6 protests ignited the anger of people across the country and led to nation-wide protests in the days that followed.
A history of worker organising

In 2011, as part of a wider reform process, trade unions were legalised in Myanmar after close to 50 years of being prohibited. Labour rights organisations and union federations sought to inform workers of their legal right to association. But it was workers themselves who organised unions in their workplaces. In most cases, this occurred following a workplace dispute that coalesced into a collective struggle to better wages or working conditions. With support, at times, from outside activists, hundreds of thousands of workers in the industrial zones around Yangon, Myanmar’s largest city, established workplace unions in just 10 years.

Union drives in the factories often began with workers wearing union t-shirts and red headbands, or engaging in sit-down strikes. If the employer refused their demands, the workers would organise a protest inside the factory or picket to disrupt production. These steps are simple. The objectives are clear. But union organisers in the factories had to work hard to mobilise their fellow workers. Factory-level union leaders needed to reassure workers that if problems arose, union leaders would take responsibility. And by organising campaigns, factory union leaders risked being dismissed or attacked by thugs. There have been many such incidents over the past 10 years.

It has only been when workers have gone on strike that they have gained power to influence factory management.

Government mechanisms established to resolve workers’ grievances and address workplace abuse have been ineffective. Strikes have therefore been the most successful tactic for factory-level unions to achieve workers’ legal rights in the workplace. It has only been when workers have gone on strike that they have gained power to influence factory management. In this way, unionised workers have won the right to participate in workplace decision-making. Factory-level unions have put a stop to forced overtime and workplace harassment. And unionised workers have compelled managers to go through worker-controlled committees to resolve disputes.

In Myanmar, there are two trade union federations that privilege the strike as a tactic for advancing workers’ demands. These are the All Burma Federation of Trade Unions (ABFTU) and the Federation of General Workers Myanmar (FGWM). Twenty-one factory-level unions founded the second of these in the Hlaingtharyar industrial zone, on the outskirts of Yangon, in September 2019. Since then membership has steadily increased. It was FGWM workers who led the anti-coup protests in Yangon and catalysed the Spring Revolution. Thousands took to the streets. In response, people across the country were moved to support the protesting workers and to join the mass movement against military rule.

From the February coup to a mass movement

Military authorities shut down Myanmar’s internet soon after the coup d’état on 1 February. Recalling that first day, Ma*, a factory-level union leader, told me, “I couldn’t believe it when I heard. But later, I realised it was true. Our president and Daw Aung San Suu Kyi had been arrested.” Civil society organisations, including labour rights groups and unions, denounced the coup, issuing a joint statement demanding that political prisoners be released and that the results of the 2020 election be honoured.

FGWM issued its own, similar statement, and later joined with several groups to establish the Anti-Junta Mass Movement Committee. Other democratic forces were also organising against military rule. The day after the coup, doctors employed as civil servants in the Ministry of Health initiated a civil disobedience movement by refusing to work in government hospitals. And ordinary people across the country began hitting pots and pans each night at 8:00 pm in protest.

Factory workers faced violent retaliation because of their role in mobilising protestors.

Faced with this groundswell of anger, conservative social influencers and moderate politicians began spreading a rumour that street protests would give the military junta justification to hold onto power. The claim, which was untrue, was that the military could legally hold power for 72 hours under Myanmar law. During this time it would have to inform the United Nations of the reason for the coup and present the president’s signature accepting a transfer of power. Failure to do so, it was claimed, would nullify the coup and require a transfer of power back to civilian authorities. Street protests would thus ostensibly give the military justification for holding onto power. Even people opposed to the coup believed this erroneous claim, and some politicians in the ousted National League for Democracy urged to people to remain in their homes. The result was that, in the days after the coup, many people became wary of taking to the streets to protest.

Worker organisers and factory-level union leaders in FGWM still wanted to take action. First they initiated anti-coup campaigns inside the factories using the tactics they normally reserved for pressuring their employers: workers wore their union uniforms, issued statements denouncing the coup, and sang revolutionary songs during their lunch break. They then decided that, if at least 3000 members agreed, FGWM would mobilise a protest. “When we had all arrived at the factory to start our day, I called a meeting as chair of the factory union with union members to discuss opinions regarding a protest,” Ma recalled. “I explained that under a military dictatorship we would lose our rights and that there would not even be workers’ unions in the factories. All the workers agreed to participate in the protest.”

In the end, even non-union workers joined the protest. On the morning of 6 February, around 4000 workers rode factory trucks from the Hlaingtharyar industrial zone to three locations in downtown Yangon. The vast majority were women in their late teens and twenties. One participant told me she would never forget her experiences that day, and she was grateful to the union leaders who safely returned the workers to their dormitories that night. Chanting slogans in downtown Yangon with their lunchboxes in hand, these protestors made it clear that they had come on their own volition as oppressed and exploited workers from garment factories on Yangon’s industrial outskirts to take their stand against military rule.
A debt that must not be forgotten

Factory workers faced violent retaliation because of their role in mobilising protestors and in catalysing the mass movement against military rule. On 14 March, the military and police killed at least 58 people in the Hlaingtharyar industrial zone. Politicians in Myanmar must surely know the debt that they owe to the workers who led the protests against military rule and who sacrificed so much as a result.

However, some commentators have instead claimed that the 6 February protests were led by high-profile politicians and activists, as though workers could not organise themselves. This is a misrepresentation of history. It neglects not only the role of workers in organising the protests, but also the self-organised struggles of workers in the 10 years of Myanmar’s so-called democratic transition. During those years, workers had to organise and strike to secure their livelihoods and their legal rights. Since the coup, workers in Myanmar have risked their lives in the struggle for democracy. This must not be forgotten.

* Ma is a pseudonym to protect their anonymity.

This article is part of a series of articles resulting from an independent research project on worker organising in Myanmar and produced with financial support from the Livelihoods and Food Security Fund (LIFT). The views expressed herein should not be taken to reflect the official opinion of LIFT or LIFT donors. Additional editorial support, translation, and research assistance was provided by Brown University's Center for Human Rights and Humanitarian Studies and the Center for the Study of Slavery and Justice.

Workers’ rights in Myanmar: a decade of fragile progress comes under threat

Labour protections were insufficient before the coup. Now the junta is rolling them back

Benjamin Harkins
13 December 2021

Making gold leaf in Myanmar |
Matteo Cozzi/Alamy Stock Photo. All rights reserved

Since 1962, workers’ rights in Myanmar suffered decades of abuse and neglect under military rule, creating a labour market where basic protections were neither adequately established by law nor respected in practice. At the same time, underdevelopment caused by rampant cronyism, isolation from the international community, and a regime of strict economic sanctions meant that not enough jobs were available for the country’s 23 million workers.

Following the election of a nominally civilian government in 2010, a wide-ranging political and economic liberalisation process was initiated, including intensive efforts to reform Myanmar’s outdated, contradictory, and vague labour laws. Among the dozens of legislative changes were the legalisation of worker organisations, the establishment of dispute resolution mechanisms, the introduction of a minimum wage, the expansion of social security coverage, and stricter prohibitions on forced labour.

Because of government and private sector sensitivities about research on working conditions, few independent, large-scale studies were permitted since the reforms began more than 10 years ago. Just months before the military returned to power through a coup d’etat in February 2021, a United Nations survey was completed with more than 2,400 workers employed in low-wage jobs to help fill the knowledge gap – assessing how effective the improved labour governance framework has been in ensuring decent working conditions. The key findings of the research are outlined below.
Suppression of worker organising

Outlawed for over half a century, trade unions were only legalised in Myanmar in 2011 under the Labour Organisation Law. However, the trade union density rate in Myanmar remains very low in comparison to other countries, representing just 1% of the labour force. Major obstacles to registering worker organisations continue to deny many workers their right to freedom of association.

Joining a worker organisation continues to carry significant personal risk in Myanmar. Trade union activity in many of Myanmar’s industrial zones has encountered fierce resistance and reprisals from employers. Consequently, many workers are intimidated by the potential consequences of participating in a union despite their legal right to do so.

Suppression of industrial actions by employers and police, in some cases violently, has frequently prevented collective bargaining from taking place.

Collective bargaining is still at a nascent stage in Myanmar and most agreements have been reached reactively through dispute resolution. Workers must resort to strikes to assert their labour rights largely because the normal channels for negotiation with employers are non-existent or dysfunctional. Furthermore, suppression of industrial actions by employers and police, in some cases violently, has frequently prevented collective bargaining from taking place.

Entrenched gender inequality

The heavily gendered division of labour continues to pose a major obstacle to women’s empowerment in Myanmar. Women are disproportionately responsible for performing unpaid household work, resulting in time poverty which limits their ability to participate in the labour force. Women’s remunerated work is concentrated in lower-paid forms of employment, largely due to discriminatory social norms that restrict them to jobs considered ‘appropriate’ for women.

Many of these jobs are as sewing machine operators in the garment industry, which expanded dramatically after sanctions were lowered and Myanmar began to open its economy to international markets. The sector has become an important source of income for many women in Myanmar but has also been broadly associated with exploitative working conditions and sexual harassment. The competitiveness of the garment sector’s labour-intensive, export-oriented business model is based on keeping wages and operating expenses as low as possible rather than investing in the skills or welfare of its overwhelmingly female work force.

Due to the devaluing of jobs considered to be ‘women’s work’, the survey found domestic workers to be paid inequitably in comparison to sectors which employ a larger share of men. In addition, a considerable gender wage gap was identified within several industries, pointing to lingering problems with restrictions on upward mobility and discriminatory treatment of women. Despite many years of advocacy by women’s groups, Myanmar’s labour laws still do not prohibit gender-based discrimination or sexual harassment within the workplace.

A minimum wage of less than $3 per day

Myanmar introduced its first minimum wage requirements in 2015 and stipulated that a new rate will be set every two years. Although this represented an important step forward, the minimum wage is currently only applicable to workers in the formal sector. Myanmar’s labour market remains dominated by a large informal sector, where approximately 84% of all workers are employed.

Moreover, many workers have argued that the minimum wage rate of MMK 4,800 (US$2.70) per day is still far from a living wage, and needs to be doubled to support a family of four. The national minimum wage committee did not reach agreement on an increase in 2020, a delay which has taken money out of the pockets of many low-wage workers.

The practice of exacting forced labour from civilians was supported by British colonial laws that were not repealed until 2012.

Within the survey, the majority of workers were found to be earning at least the minimum wage. However, wage theft in the form of paying wages below the legal minimum, not providing overtime pay, and making illegal wage deductions were widespread. In particular, domestic workers and agricultural workers were much less likely to be paid the minimum wage as the law does not apply to their work.

Exclusions from social security coverage

There has been substantial progress in expanding the scope of social protection coverage for workers in recent years. The social security scheme increased its membership from 700,000 workers in 2014 to 1.4 million workers in 2020 after the enactment of the Social Security Law (2012).

Nevertheless, a substantial structural gap in social protection coverage for workers in the informal sector means the vast majority are not enrolled, leaving millions of households vulnerable to the shocks and stresses associated with a loss of income. There are major challenges to filling the gaps in coverage, including limitations in fiscal space, lack of clear and inclusive statutory requirements, obstacles to registration, and problems with legal compliance by employers.

The survey found that only a small fraction of workers are currently enrolled in social security benefits. Membership was limited almost entirely to factory workers in the industrial zones around Yangon. The findings suggest that considerable work remains in expanding the sectoral and geographic reach of the social security scheme to ensure inclusive coverage.

Indications of widespread forced labour

For many years, attention to issues of forced labour in Myanmar was focused on abuses committed by military and government officials. The practice of exacting forced labour from civilians was supported by British colonial laws that were not repealed until 2012. More recently, research has documented conditions of forced labour among workers employed within the private sector.

Indications of forced labour were frequently reported by the survey respondents. The majority of workers were found to have experienced at least one indicator of ‘involuntary work’ in the prior 12 months. Indications of a ‘threat or menace of penalty’ were reported by a smaller portion of workers but were still disturbingly common.

The overall prevalence of forced labour among the workers surveyed was estimated to be 16%. Though it should not be considered nationally representative, the finding that one out of every six low-wage workers may be in a situation of forced labour is an unsettlingly high rate. Workers in the construction, manufacturing, and fishing sectors were the most likely to be trapped in situations of forced labour.
Workers’ rights in retreat

The research findings suggest that although some progress has been made in increasing workers’ rights and reducing decent work deficits in Myanmar’s labour market during the last decade, the changes are still at an incipient and fragile stage of development.

Authoritarian tendencies have continued to haunt the development of rights-based labour governance even under civilian rule. During the formation of the National League of Democracy government in 2016, the key leadership positions within the Ministry of Labour, Immigration and Population were given to military officials as a form of appeasement. The labour portfolio was not considered to be of central importance to the party’s largely neo-liberal economic agenda.

What followed was a restricted and top-down reform process, with five years of half measures and many key policy areas never receiving adequate attention. Insufficient improvements and the perception that workers’ interests were being ignored led many of the more progressive worker organisations to field their own candidates in the 2020 election, seeking to amplify the voices of workers in the political process.

The policies of the junta since staging a coup d’etat earlier this year suggest the resumption of more openly exploitative employment practices and suppression of worker organising. The return to military rule has already rolled back many of the hard-fought gains made in expanding labour rights during recent years. It has also contributed to an estimated 1.2 million workers losing their jobs.

Decisive actions must be taken to ensure that workers’ rights are safeguarded during the military’s reign. As part of cracking down on popular resistance to its seizure of power, the junta declared 16 trade unions and civil society organisations to be “illegal labour organizations”, leaving only a handful of registered trade union federations remaining. This targeted persecution of grassroots organisations represents an existential threat to further progress on protection of labour rights in Myanmar and must be met by unwavering support for their organisational resilience.

This article is drawn from the larger research study, published by LIFT, From the Rice Paddy to the Industrial Park: Working Conditions and Forced Labour in Myanmar’s Rapidly Shifting Labour Market.

Redefining ‘women’s work’ in Kazakhstan

A Soviet-era law banning women from more than 200 jobs has finally been overturned in Kazakhstan. But the fight for gender parity is not over


Aigerim Kamidola
13 December 202

Kazakhstan's list of banned professions originally stemmed from 1930 Soviet legislation 
Illustration: Lena Nemik. Used with permission

In 2019, Almagul Kabylbekova found work as a heavy goods vehicle driver in Temirtau, an industrial town in central Kazakhstan. But this job didn’t last for long, because women were not allowed to be lorry drivers. Or railway wagon inspectors, or crane operators.

Under a Soviet-era provision carried over into Kazakhstani law, these and more than 200 other occupations were designated “banned jobs for women” – until a series of amendments to the country’s labour code lifted the ban in October.

Two years ago, Kabylbekova didn’t know that her employment was prohibited. Then, when she posted a motivational video on YouTube about her work routine, her employer asked her to remove it immediately and dismissed her. It was then that she discovered that her job had been listed as a “light vehicle driver”, because she was officially banned from working her actual job, as a heavy vehicle driver. So after four months, Kabylbekova was on the job market again, accepting work here and there until she found another lorry driver job abroad, where it was legal.

When COVID-19 hit and borders were sealed, Kabylbekova had to return to Kazakhstan. She then discovered that she could not apply for unemployment benefits for a job that she was not allowed to perform in the country.

With little other recourse, Kabylbekova decided to join the battle that advocates had been fighting for years to abolish the ban.

Almagul Kabylbekova | Source: Personal archive

This job is not for women

The ban was originally established in the 1930s, when Soviet legislators argued that to “ensure the protection of maternity and women’s reproductive health”, women should be banned from hundreds of jobs. At its height in 1978, the ban consisted of 431 prohibited occupations. As of this year, 229 occupations were included in the ban.

The ban was translated into the labour codes of independent Kazakhstan – as well as that of other new states – after the collapse of the Soviet Union. Today, there are still 446 banned jobs for women in Russia, 456 in Kyrgyzstan, 326 in Tajikistan, and 182 in Belarus. Only in Ukraine has the ban been fully lifted, ending in 2017.

In Kazakhstan, the list of banned jobs was occasionally revised with minor changes, usually ahead of a United Nations external review. In 2019, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Kazakhstani government repeal the list within two years. The deadline for the country’s report on its compliance with the recommendations was coming up in November, with CEDAW due to revise the process of the legislation in 2022.

Just in time for the CEDAW review, on 12 October 2021, Kazakhstani President Kassym-Jomart Tokayev signed amendments repealing the ban.
Reproductive rights and work

If it were not for the relentless advocacy by women in Kazakhstan, this blanket ban on women’s employment – based on the government’s ‘care’ for ‘safeguarding’ women’s reproductive functions – could have remained legal for another 90 years with sporadic reviews.

When I started working on the repeal of the ban in 2018, there was little public awareness about the existence of the ban and the list of prohibited occupations for women in Kazakhstan.

The author at the 74th UN CEDAW meeting, 2019 | Source: Personal archive

with a few exceptions, bringing the topic of banned jobs for women to the table was often met with surprise and disbelief among civil society advocates, women’s rights groups, and state authorities alike. Until recent years, this was a forgotten issue.

Yet, women had been working at banned jobs for years in Kazakhstan. Underground.

Indeed, women who trained and excelled at banned jobs were forced to operate in the informal grey zone: they had to settle for significantly lesser pay, with no social security benefits and labour protections, and were often left at the mercy of their employers and vulnerable to abuse.

After international pressure from CEDAW, the Human Rights Council, other UN bodies, the International Labour Organization, and the World Bank, the issue of banned jobs for women made it into the ruling party Nur Otan’s election programme at the end of 2020.

By May 2021, the infamous list was being discussed in Parliament, which ultimately decided to scrap the ban altogether.

Celebrate with caution

That the long-standing ban is now a matter of the past is definitely worth celebrating.

Lifting the blanket ban without reservations over ‘women’s reproductive function’ is a win against the framing of women exclusively as mothers and caregivers in Kazakhstan. It is an important milestone in challenging discrimination and gender stereotypes and has a potential for a trickle-down effect in the wider Central Asian region, where similar bans still exist. The grassroots mobilisation of women proved to be effective.

Yet, the extent of this success should be taken with a pinch of salt. The amendments that scrapped the list are not a recognition of decades-long discrimination in the country, or of women’s agency. Instead, the changes were included in an umbrella law emphasising the need for social protection (‘On Issues of Social Protection of Certain Categories of Citizens’), alongside provisions on social benefits for people and children with disabilities, their caregivers and families. Once again, women are regarded as objects of socio-economic measures.

Kazakhstani MP Zarina Kamasova, a member of the country’s parliamentary committee on social and cultural development, told openDemocracy that the amendments were pushed “onto the last train” – meaning they were included as the last item in a draft law at the end of the parliamentary year.

Ultimately, lifting the ban is largely a move to please Kazakhstan’s international partners. It was hastily passed because the government wanted to whitewash its failure to adopt a draft law on domestic violence

The ruling party presented the lifting of the ban as a favour from the top, to which everyone should rejoice, not as inalienable rights won by women after a long struggle of workers and advocates. During my meetings with MPs as the amendments were being discussed in Parliament, I was asked to avoid referring to ‘feminism’ in my arguments, because this kind of political association could have stirred public outcry.

Ultimately, lifting the ban is largely a move to please Kazakhstan’s international partners. It was hastily passed because the government wanted to whitewash its failure to adopt a draft law on domestic violence, which was shelved for revisions in January 2021 after yielding to demands of conservative groups.

Next year, the CEDAW review will assess Kazakhstan’s progress on four issues: the adoption of a law on domestic violence, the abolition of a mandatory pre-requisite of gender-reassignment surgery before a person can change their gender in official documents or ID, the criminalisation of forced sterilisation of women and abortion, and the repeal of the list of prohibited occupations for women. With the first three in a stalemate, lifting the ban on employment of women was ‘the lowest hanging fruit’. In essence, lifting the ban was deemed less dangerous and an easy way for the government to compensate for failures elsewhere.

Lia Nadaraia, a member of the CEDAW Committee, and its former Country Rapporteur on Kazakhstan, noted that “even the repeal of the ban and the list of prohibited occupations for women would not brighten Kazakhstan’s overall dismal record and would not help it to ‘score’ well at the review”.

A job not done

This year, Kazakhstan marked its 30th anniversary of independence from the Soviet Union. And while the repeal of the ban could have been a welcome celebration of this event, the Kazakhstani government’s continuing failure to pass domestic violence legislation and protect transgender people’s rights sadly puts the country it in line with the global trend of anti-gender backlash.

What’s more, women are still not being treated as equals at work. “I am happy that [the ban] has been revoked, but this has not affected my career and pay in any way,” Almagul Kabylbekova told me. She has found employers are still reluctant to hire women, while male colleagues remain hostile to women in formerly banned jobs.

Scrapping the ban is, arguably, only half the job. Kazakhstan must not, as the CEDAW further recommends, “facilitate access for women” to the occupations in question. The Kazakhstani’s state obligation does not end by deleting a paragraph in the labour code – as much as its government would like it to. Eliminating women’s remaining barriers to work are “even more urgent today”, says Tea Trumbic, manager of the World Bank’s Women, Business and the Law programme, in light of how the COVID-19 pandemic has “widened long standing gender inequalities around the world”.

Now, it is the task of the Kazakhstani government to properly inform women, employers and wider society that the ban has been abolished – and move the country away from outdated gender stereotypes. It is time that women are guaranteed equal access to professional education and employment at formerly prohibited occupations.

Update 13 December: standfirst image replaced with illustration by Lena Nemik.

Ten years after a brutal massacre, Kazakhstani oil workers’ fight continues

Oil workers are stepping up their battle for independent union organisation and better pay and conditions in the shadow of state repression and a 2011 massacre

Simon Pirani
16 December 2021

Thirteen demonstrators were convicted in the aftermath 

of the massacre at Zhanaozen |
(c) REUTERS / Alamy Stock Photo. All rights reserved

Ten years after police massacred striking oil workers in Zhanaozen, Kazakhstan, human rights organisations and trades unionists are demanding an international inquiry into the killings.

Even now, the true number of victims is unknown. State officials admit that 16 people were killed and 64 injured on 16 December 2011 – but campaigners say there were dozens, perhaps hundreds, more.

The initial killings – by Kazakhstani law enforcement who fired into a peaceful, unarmed crowd – were followed by a three-day reign of terror in Zhanaozen, a town in the oil-rich Mangistau province in western Kazakhstan, and nearby villages.

The torture and sexual violence used against detainees should also be investigated by an independent international commission, campaigners say

Although a handful of police officers were tried for “exceeding their powers”, and a detention centre boss briefly jailed, the Kazakh government has refused to say who ordered the shootings. Thirty-seven protestors stood trial in their aftermath, and 13 were convicted.
Eight-month strike

The Zhanaozen shootings ended an eight-month strike by the town’s oil workers, one of the largest industrial actions ever in Central Asia.

Oil workers and their families had demanded better pay and conditions, and the right to organise independent trade unions, at Ozenmunaigaz, a production subsidiary of the national oil company KazMunayGas, and contracting firms.

Zhanaozen has become a crucial strand in Kazakhstani working people’s collective memory. On the day of the killings, local residents risked arrest and worse to smuggle out video clips from the locked-down city, showing how demonstrators were executed in cold blood.

December 2011: Residents of Almaty, Kazakhstan, protest in reaction to police brutality in Zhanaozen |

 (c) ITAR-TASS News Agency / Alamy Stock Photo. All rights reserved

On Saturday 11 December this year, oil workers gathered in Zhanaozen, amidst a heavy police presence, to commemorate the victims. Tomorrow, ten years to the day after the tragedy, activists plan film screenings and other gatherings in Almaty, Kazakhstan’s largest city.

Today, some of the fear has faded, activists say: whole films – such as this one, made in 2013 – are shared on social media.

Who fired the shots?

An international investigation is needed because, even now, the Kazakhstani authorities are desperate to cover up the truth, according to two human rights activists who have investigated the massacre.

Evgeny Zhovtis, director of the Kazakhstan International Bureau for Human Rights and the Rule of Law, said that there were “three questions that have never been answered” about the events on the town’s central Alan Square, where the initial shootings took place:
Who were the provocateurs who caused trouble on the square?

Who exactly gave the order to send in armed police against an unarmed crowd?

Who fired the shots? The authorities have admitted to 15 killings on the square. In each case, under Kazakhstani law, an investigation should show either that the officer responsible had opened fire unlawfully, or that he opened fire because his life was threatened.

Zhovtis pointed out that two UN commissioners had called for an independent international commission to investigate the Zhanaozen events, but “this has not happened”.

Human rights defenders in Kazakhstan reject the Justice Ministry’s claim that an adequate investigation had been carried out, Zhovtis said.

“The leading Western governments are largely indifferent to what happens in central Asia,” he added. “Look at their response both to the Zhanaozen tragedy and the Andijan massacre [of hundreds of protesters in Uzbekistan in May 2005].”

Galym Ageleuov of human rights organisation Liberty has travelled regularly to Zhanaozen since the massacre to gather evidence. He said that, in addition to the events on Alan Square, any investigation should cover the use of torture against oil workers and their supporters detained during the three-day crackdown, sexual violence against women detainees and further alleged extrajudicial killings by security forces.

Kazakhstan’s labour movement is marking the Zhanaozen tragedy at a time when the right to form independent trade unions is again at issue in many workplace struggles

Detailed evidence of torture had already been made public, including at the trial of the 37 Zhanaozen protestors in 2012. “There is evidence that women and men prisoners were detained naked [in winter], were beaten, and had freezing water poured on them,” Ageleuov said.

Ageleuov also pointed to evidence of sexual violence against women detainees, including an oil workers’ trade union organiser and daughters of trade union activists.

Finally, he expressed dissatisfaction with the official death toll, referring to multiple reports of bodies being loaded into unmarked graves – including by Elena Kostyuchenko of Novaya Gazeta, Russia’s foremost opposition newspaper, one of the first journalists to get into Zhanaozen after the massacre.

“Any international commission should insist on the exhumation of these bodies,” Ageleuov said.

Long memories

Kazakhstan’s labour movement is marking the Zhanaozen tragedy at a time when the right to form independent trade unions, a key principle in the 2011 oil workers’ strike, is again at issue in many workplace struggles.

In June, national oil company KazMunayGas tried to scrap an agreement on wages and conditions with the independent Oil Construction Company Workers Union, seeking instead a sweetheart deal with a ‘union’ it had created itself. This followed an attempt by the authorities to deregister, and effectively put beyond the law, the independent Sectoral Union of Fuel and Energy Workers, a national-level umbrella of which the Oil Construction Company Workers Union is part.

Markhaba Khalmurzaeva, coordinator of the Central Asia Labour Rights Monitoring Mission, said: “There have been several strikes in which workers demanded the right to independent organisation, and in some cases, once a pay dispute was settled, employers even helped to register unions.”

But there is also a constant campaign of repression. “Quite often a strike will be settled, some demands are met, but activists who played a part in organising it are dismissed, and blacklisted,” Khalmurzaeva said.

These battles for the right to independent union organisation flared up earlier this year amidst a wave of strikes over pay and conditions. There were more strikes in the first half of 2021 than in the whole three years from 2018 to 2020. And this summer, the wave hit the western Kazakhstan oilfield, including Zhanaozen, where 11 firms were on strike simultaneously in July.

Worker at AMK Munai makes appeal to Kazakhstani president Kassym-Jomart Tokayev | Source: Instagram / EurasiaNet

In Zhanaozen, in the years after the massacre, the Ozenmunaigaz oil company was reorganised into 14 separate divisions. Many of the strikers were employed in the drilling services division, where pay was raised substantially and today is at more than twice the level of ten years ago.

In an attempt to smother the social discontent that exploded in 2011, the Kazakhstani government has invested in the town’s infrastructure, providing among other things round-the-clock water supply, where previously water only reached people’s homes for short periods twice a day.

Zhanaozen’s population has also expanded, but not everyone has benefited. Unemployment has grown rapidly, and in 2019 young people began to demonstrate at the local authorities’ offices, demanding work at Ozenmunaigaz. One man, Erzhan Elshibayev, who helped to organise these peaceful gatherings, was arrested and imprisoned for five years.

Ageleuov called the case against Elshibayev an instance of “political repression”, pointing to the fact that the organiser was convicted over a street fight that had happened two years before his arrest.

“Elshibayev has been in detention for two years. For the last three months he has been in solitary confinement and no one has heard from him,” he said.

Ten years after the Zhanaozen massacre, labour’s battles against capital continue in western Kazakhstan’s oilfields: for better pay and living conditions, for the right to organise independently at work, and for ways to live decently.

Exposing the truth about Kazakhstani state repression in 2011, about the chain of command, and about the barbaric use of murder and torture in the service of capital is part of this wider struggle.

A longer version of this article originally appeared at People and Nature.

COLD WAR 1.5

US charges ex-defense contractor with trying to pass secrets to Russia

63-year-old test engineer exchanged over 300 emails with FBI employee posing as Russian agent, says Justice Department

Jeyhun Aliyev |17.12.2021


ANKARA

An ex-defense contractor has been arrested in an FBI undercover operation and charged with attempted espionage, the US Justice Department announced on Thursday.

John Murray Rowe Jr., 63, was arrested in the Midwestern state of South Dakota on Wednesday for trying to provide "classified national defense information" to the government of Russia, said a department statement.

Rowe – originally from the northeastern state of Massachusetts – had been employed for nearly four decades for multiple defense contractors, according to the criminal complaint.

As part of his duties, Rowe held various national security clearances "from secret to Top Secret/Sensitive Compartmented Information," as well as worked on matters relating to US Air Force technology, among other things, the statement said.

"After committing a number of security violations and revealing a fervent interest in Russian affairs, including whether he could obtain a security clearance from the Russian government, Rowe was identified as a potential insider threat and terminated from employment," it added.

In an undercover operation, the FBI worked to "determine Rowe’s willingness" to communicate classified information to a foreign government.

Last March, the suspect met with an undercover FBI employee posing as an agent of Russia, and over the next eight months, he exchanged over 300 emails with the "purported Russian agent, confirming his willingness to work for the Russian government" and discussing his knowledge of classified information relating to US national security and military interests.

​​​​​​​"If I can’t get a job here then I’ll go work for the other team," meaning Russia, Rowe said in one of his emails.

In another email, he disclosed secret national defense information concerning specific operating details of electronic countermeasure systems used by US military fighter jets, the statement said

Charged with attempting to communicate national defense information to aid a foreign government, Rowe will make his initial court appearance on Friday. If convicted, the former defense contractor faces a maximum of life in prison.

USA

The Inflation-Fighting Bill You Don’t Know About

An overwhelmingly bipartisan effort would finally crack down on the ocean shipping cartel.

BY DAVID DAYEN
DECEMBER 13, 2021

STEPHEN B. MORTON/AP PHOTO
Container ship Ever Far, left, sails downriver past the Port of Savannah, September 29, 2021, in Savannah, Georgia.

Inflation is peaking at 6.8 percent. Real wages are falling, particularly among the middle class. Republicans smell blood, hoping to make rising prices the centerpiece of their midterm strategy. Democrats have pointed their own fingers, accusing the opposition of rooting against the economy for political gain rather than helping to fix the problems.

Given all this, you could have easily overlooked that the most focused legislation to alleviate a key driver of inflation passed the House last Wednesday with 364 votes.

The Ocean Shipping Reform Act of 2021 (OSRA 2021), the first update to ocean shipping rules in nearly 25 years, begins to reverse a punishing 1990s-era deregulation in the maritime portion of the supply chain. It’s unique in several ways: an anti-monopoly initiative from a federal government that has at best tolerated and at worst actively promoted monopolies for decades, a sharply bipartisan effort in a polarized and toxic Congress, and an expansion of regulatory power to structure markets that breaks with a federal bias toward self-regulation and laissez-faire posturing.

And “it all began in an almond orchard and a rice field,” its co-author told me.

Rep. John Garamendi (D-CA), who represents vast agricultural areas in Northern California, explained that exporters approached him earlier in the year with a problem. “They said, ‘We cannot get a container, and if we get one, we can’t afford it,’” Garamendi told me in an interview.

In parallel, Rep. Dusty Johnson (R-SD) was hearing the exact same thing from exporters in his home state. Valley Queen Cheese, a local supplier, has over two million pounds of lactose sold to interests in New Zealand that have been waiting for an empty container for six weeks. According to Johnson’s office, shipping times dock-to-dock have increased from 50–60 days to 120 days. And prices to secure a spot on a ship have increased as much as tenfold.

“We learned quickly that this was a market that is simply broken down,” Rep. John Garamendi said.

Importers were having similar problems. Garamendi told me about a company in his district that sells plastic Christmas decorations; their imported goods are stacked at the bottom of seven other containers at a port. The company is being charged millions of dollars in “demurrage and detention” fees, designed to clear goods from port terminals and get containers back to ships, even though that company has no way of getting its goods off the dock.

“We learned quickly that this was a market that is simply broken down,” Garamendi said. He teamed with Johnson to fix it, introducing OSRA 2021 in August. Within three months, it overwhelmingly passed the House. Sens. Amy Klobuchar (D-MN) and John Thune (R-SD) have indicated they would introduce a Senate companion, and a Senate hearing last week showed bipartisan interest in the issue. The White House has endorsed the bill.

To find the root causes, you have to go back to how ocean carriers have used their concentrated power to exploit anyone who wants to send cargo anywhere. As Matt Stoller laid out last month, for most of the 20th century the shipping industry was regulated as a public utility, which of course it is, as getting goods to markets swiftly benefits us all.

Under the old rules, ocean carriers could legally form alliances to set prices and manage routes, but all prices and fees had to be transparent; service had to be offered on equal terms with no individual rebates or volume discounts or geographic discrimination; and no exclusionary conduct, like promising slots to certain cargo, was permitted. Subsidies for the domestic shipbuilding industry ensured that U.S. carriers would play a vital role.

The goal was to expand commerce by allowing trade to flow reasonably, with affordable access for cargo shippers and a stable business for ocean carriers. That all was brought to an end with the passage of the Ocean Shipping Reform Act of 1998. Shipping contracts became proprietary and secret deals permitted, while the antitrust exemption for carrier alliances remained in place. Meanwhile, domestic shipbuilding subsidies vanished.

As a result, the top ten ocean carriers today control twice as much of the market, more than 80 percent, as they did in 1998. They are divvied up into three dominant carrier alliances, giving exporters even fewer choices. None of the major carriers are U.S.-based. As carriers consolidated, they built bigger ships, which couldn’t be docked at smaller ports, concentrating traffic at the larger ones (this is why the Ports of Los Angeles and Long Beach see 40 percent of all import traffic in the U.S.). They made volume discount deals with large retailers that guaranteed supply to them over smaller competitors.

With the Ocean Shipping Reform Act of 1998, shipping contracts became proprietary and secret deals permitted, while the antitrust exemption remained in place.

Moreover, as Garamendi pointed out, China entered the WTO 20 years ago this past week, rapidly becoming a dominant country for goods manufacturing. This extraordinary shift of production increased the global reliance on this narrow band of ocean carriers. “They’re able to collude, and plenty of them do,” Garamendi said.

The exploitation expanded during COVID, with profit taking precedence over access or fairness. Garamendi heard from constituents that containers with Chinese imports were brought to the U.S., unloaded, and then immediately sent back to Asia, bypassing ports where exports could be sent off. Though this seems like a lost opportunity, “we discovered that the ocean shippers could make far more money turning that container around than waiting for agricultural exporters to load it and return it to the ship,” Garamendi said.

These circumstances have been wildly lucrative for ocean carriers, while debilitating for exporters and consumers. Maersk, the world’s largest carrier, enjoyed its largest profits in 117 years last quarter. The record profits call into question whether the shipping industry is interested in solving the supply chain crisis, rather than profiting from it.

That’s where the updated Ocean Shipping Reform Act comes in. The bill is at once modest and pretty radical in scope. In 1998, the Federal Maritime Commission (FMC) was stripped of most of its ability to investigate and impose regulations on ocean carrier contracts. Under the new legislation, the FMC can initiate investigations of practices in the shipping industry, and set enforcement measures.

It can also apply minimum service standards to shipping contracts, and third parties could challenge contractual agreements if they find them to be anti-competitive. The bill also changes the FMC’s mission to one of reciprocal trade, and requires ocean carriers to accept cargo if it can be loaded into their containers, rather than just sailing off with empties.

While the FMC is currently investigating demurrage and detention fees, under OSRA 2021, these fees would be subject to regulation and would have to be reasonable, ending the practice of charging companies for failing to get cargo that they cannot access off the docks (a pervasive problem that predates the pandemic, as this 2018 FMC fact-finding demonstrates). Records of these fees would have to be kept as well, and a new process for challenging the fees would be established, with the FMC playing an active role.

“This supply chain crunch has laid bare many inefficiencies in the market today, and we have a chance to address those inefficiencies,” Johnson said in a floor speech last Wednesday.

Other legislators from both parties heard about the same problem from their constituents, which created the push for reform. Over 360 state and local groups endorsed OSRA 2021. It also helped, as it often does in Washington, that large special interests joined in the complaint, counterbalancing the large ocean carriers. “Just in the last week I got a call from Walmart,” Garamendi told me. “A few hours later it was Amazon.” This coalition was able to ward off the World Shipping Council’s opposition.

Overall, OSRA 2021 attempts, in a minor way, to shift the balance of power away from the ocean carrier cartel and back into the hands of democratically inclined interests, which have a role to play in structuring fair rules. The bill counts on the FMC being adequately aggressive and adequately funded; Garamendi said he would be watching next year’s budget closely to see if the agency has the resources necessary to do the job.

Moreover, the infrastructure legislation passed earlier this year provides funding to improve ports and the networks that carry goods off them. More broadly, competition policy to address such imbalances of power has to be on the government’s menu, too. “The market system cannot operate with a cartel or collusion,” Garamendi said. “We have had more than 30 years of neglect. Nobody has a right to the American market, but everyone ought to have a fair opportunity in the market.”

Anti-monopolists have been heartened by this legislation, because it actually intervenes in the public interest into markets that have obviously failed. Quietly, Congress is rediscovering its powers to actually operate in this fashion.

DAVID DAYEN is the Prospect’s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is ‘Monopolized: Life in the Age of Corporate Power.’

More from David Dayen

#FEDERALIZEUI LIKE CANADA

COVID-19 Relief Funds Fuel Employer Tax Breaks

Instead of helping workers, states steer pandemic emergency dollars to employers to help them pay down unemployment insurance debt.

BY ELLA FANGER
DECEMBER 9, 2021

RICH PEDRONCELLI/AP PHOTO
A runner passes the office of the California Employment Development Department in Sacramento. California’s Chamber of Commerce has pressured the state to use federal relief funds to pay off unemployment insurance debt.

The $350 billion in federal fiscal relief to state and local governments in the American Rescue Plan (ARP) gave states an unprecedented opportunity to provide emergency housing, nutrition, health services, and other programs and benefits designed to help workers and communities deal with the pandemic’s economic shocks. But some states chose a different route—a tax break for employers at the expense of workers.

As unemployment rates spiked during the pandemic, states turned to federal loans to fund their unemployment insurance programs. Researchers at the Economic Policy Institute (EPI) have found that 16 states have used ARP funds to pay off these debts, after 23 states had already used CARES Act funds to bolster their unemployment insurance trust funds. Overall, 33 states from Texas to Connecticut have used federal COVID relief funds to pay off unemployment insurance trust fund debts.

More from Ella Fanger

When state revenues are insufficient to cover unemployment insurance demand, states can borrow from the federal Unemployment Trust Fund, but they must repay these debts within a few years. Historically, states have paid off these debts by increasing the state unemployment insurance tax rate on employers, so using COVID relief funds to pay off these debts effectively gives businesses a tax break.

“The spirit of this legislation was to be as broad as possible to really allow states to directly spend on people in a variety of ways,” says Asha Banerjee, an EPI economic analyst who worked on the findings. “This is not even direct aid to small businesses or something that businesses could use to invest in physical capital or hiring: This is just a future tax cut.” Banerjee also noted that some states with solvent trust funds instead cut benefits severely to avoid federal borrowing.

States have now spent a combined $15.7 billion of ARP funds that could have been used to make unemployment insurance more sustainable before the next crisis.

The unemployment insurance system was designed to be supported by state and federal taxes on employers. But in many states, these employer taxes are extremely low. In 2020, employers paid an average of just $267 per employee (down 4 percent from 2019), and 75 percent of employers paid no more than 50 cents for every $100 paid in employee wages.

The federal unemployment tax rate is 6 percent on the first $7,000 of wages per employee, but many employers do not even pay that full amount. Employers can get a tax cut of up to 5.4 percentage points, leaving them with a federal unemployment tax rate of just 0.6 percent. But employers cannot receive this tax cut if their state has outstanding debts to the federal government for their unemployment insurance programs, giving employers another incentive to push state officials to pay back these loans.

Chambers of commerce have been lobbying state governments to use COVID relief funds to pay off unemployment insurance debts. For instance, even after California pledged $1.1 billion of its federal relief funding package to pay off unemployment insurance loans, the California Chamber of Commerce pressured the state to use even more funds to pay off the entire debt. Business groups argue that unemployment taxes burden employers, especially small businesses, but the report’s authors pointed to the extremely low existing tax rates. “One could assume that money going towards unemployment insurance must be to the benefit of workers, but that unfortunately is not the case,” says Marokey Sawo, an EPI state economic analyst who also contributed to the research.

There are a number of other ways states could use these relief funds to help workers weather the pandemic. Firstly, states could use the funds to expand unemployment insurance benefits. (Some states did exactly the opposite earlier this year and returned federal unemployment benefits months before the end of the program in a misguided effort to force people to find jobs.) The federal unemployment expansion expired at the beginning of September, immediately cutting off benefits for 7.5 million people. Research from the Century Foundation and the University of Minnesota’s Aaron Sojourner estimates that 5.75 million workers whose benefits expired remain unemployed.

COVID relief funds also could be used to update antiquated state unemployment insurance administration operations. Many states rely on older computer systems and other outdated technologies that keep people waiting months for their benefits. These monies could be used to modernize and streamline unemployment application processes that are often complex and burdensome. Rehiring state government workers to fill the nearly one million jobs cut from state and local agencies would go a long way to help departments still trying to deal with unemployment application backlogs.

States have now spent a combined $15.7 billion of ARP funds to pay off unemployment insurance debts that could have been used to make unemployment insurance more sustainable before the next crisis and make substantial investments in social programs to help the most vulnerable workers. The researchers propose a number of alternative uses for the pandemic relief funds including improving access to broadband, education, housing, and workforce development. “This is a chance for states to really look at long-term investments,” Banerjee says, “But paying off unemployment insurance debt is not one of them.”

ELLA FANGER is an editorial intern at the Prospect.

Gillibrand Slams ‘Four Men’ for Watering Down Military Sexual Assault Reform

The New York senator worked for a decade and assembled two-thirds of the Senate to support her reform, only to see it wither in a closed-door conference.


BY DAVID DAYEN
DECEMBER 8, 2021

MICHAEL BROCHSTEIN/SIPA USA VIA AP IMAGES
Sen. Kirsten Gillibrand (D-NY) speaking at a press conference to introduce the Military Justice Improvement and Increasing Prevention Act, June 23, 2021

In a blistering statement, Sen. Kirsten Gillibrand (D-NY) excoriated leadership on the House and Senate Armed Services Committees for “doing a disservice to our service members and our democracy” by severely weakening a bipartisan military justice reform she spent nearly a decade cultivating.

The reform, which was folded into the annual defense policy bill, fails to take the prosecution of felonies out of the military chain of command, as two-thirds of the Senate and President Biden favor. Some press reports and activists have characterized the reform that made it into the bill as broader and more significant than expected, but there’s one critical sticking point. While it empowers an independent “Special Victim Prosecutor” for certain crimes—including sexual assault, rape, murder, and domestic violence—military commanders would still retain court martial convening authority on these cases. Commanders would also select jury members in court martial cases resulting from these crimes, approve witnesses, and manage the trials.

House Armed Services Committee leaders maintain that the special prosecutor’s charging decisions would still be “binding” and that commanders would face discipline if they didn’t follow those decisions. But Gillibrand and reform supporters doubt that special prosecutors would maintain that level of authority.

“Such influence erodes the independence of the Special Victims Prosecutor and fails to address the concerns of the survivor community that conflicted commanders still have too much influence over the military justice process,” said Col. Don Christensen, former chief prosecutor of the Air Force and president of the pro-reform group Protect Our Defenders, in an otherwise fairly positive statement.

Gillibrand characterized convening authority as critical to the process. Even the Defense Department’s Independent Review Commission (IRC) on Sexual Assault in the Military stated explicitly that any reform “that retained commanders as disposition authorities in sexual harassment, sexual assault, and related cases would fail to offer the change required to restore confidence in the system.”

The retention of convening authority by military commanders in the reform provision reflects a resistance to change, said Sen. Gillibrand.

The reform otherwise does enable victims to know what actions have been taken against their offenders, makes sexual harassment a crime under the Uniform Code of Military Justice (while excluding it from the special prosecutor framework), establishes independent investigations of sexual harassment complaints, and requires tracking of any retaliation against victims for coming forward. But it narrows the crimes eligible for special prosecution, something reformers anticipated.

The fate of the military justice reform has been uncertain for months. Gillibrand and her Republican co-sponsor, Sen. Joni Ernst (R-IA), were able to assemble 66 Senate votes for their version, a rare filibuster-proof majority in a divided Congress. But Sen. Jack Reed (D-RI), chair of the Senate Armed Services Committee and a close confidant of the Pentagon, fought to fold the bill into the National Defense Authorization Act (NDAA), to keep any changes within his committee and under his control.

In July, Reed placed the entire Gillibrand-Ernst Military Justice Improvement Act into the Senate version of the NDAA. But in an eerily prescient statement, a Gillibrand aide told the Prospect’s Amelia Pollard in June, “Our preference would be a stand-alone vote on the floor because that way it can’t get killed in conference, which seems apparent is their plan,” noting that “[i]t won’t come out of conference until … December, and then it’s bumping up against the holidays.”

That’s precisely what happened. The conference report reconciling the House and Senate versions of the NDAA, released on Tuesday, was the product of Reed, his Republican counterpart Sen. James Inhofe (R-OK), House Armed Services Committee chair Adam Smith (D-WA), and ranking member Mike Rogers (R-AL). These four men, as Gillibrand described them, overrode the desires of a supermajority in the Senate and at least a majority in the House.

In doing so, they ceded to a long tradition of delay from the Pentagon on these issues. As the Prospect reported last month, the Defense Department blocked a 2016 staff report that recommended fixes to the military’s sexual assault database, which was inaccurate and unable to track trends in real time. Five years later, there have been no improvements to the database. A Government Accountability Office report from February highlighted the failure to track cases.

The IRC report identified a number of failings in the military’s approach to sexual assault and harassment, and Defense Secretary Lloyd Austin laid out an implementation timeline in September. But some of the key elements are not scheduled to be completed until 2030, a fact that drew an angry letter from Gillibrand and her colleagues condemning the military’s “vague approach and lax timeline.” The New York Times reported that Austin called members of Congress to lobby against stronger reforms.

The retention of convening authority by military commanders in the reform provision reflects this resistance to change, Gillibrand says in her statement on the NDAA. “Committee leadership has ignored the will of a filibuster-proof majority in the Senate and a majority of the House in order to do the bidding of the Pentagon,” Gillibrand wrote.

While campaigning for president in April 2020, Joe Biden said he would “order the Defense Department to take urgent and aggressive action to make sure survivors are in fact supported and abusers are held accountable for their crimes.” The White House Statement of Administration Policy on the Senate version of the NDAA said that it “welcomes efforts by Congress to enact legislation that supports core aspects of the IRC’s recommendations for accountability.” There has been no statement from the White House on military commanders retaining convening authority.

Gillibrand said she would continue to seek an up-or-down vote on her version of the reform. The only amendment scheduled in the House concerned whether to include a bipartisan bill that would allow marijuana-based businesses access to banking services.


DAVID DAYEN is the Prospect’s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is ‘Monopolized: Life in the Age of Corporate Power.’

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