HOW FAR CAN LAW TAKE US?

Máiríde Woods considers the possibilities and limitations of legislation in advancing the cause of people with disabilities.

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Change through legislation and constitutional challenge is the road that the disability movement has taken in many countries. With the publication of the Commission Report Strategy for Equality in 1996, Ireland started on the same track. But how effective is legislation in advancing the cause of people with disabilities? In an Irish context, is it a full-scale motorway to inclusion, or has it lots of sharp turns and dead ends?

Towards Equal Citizenship (1999), the progress report on Strategy for Equality, details disability-related legislation introduced since 1996. As a government document, it aims to put the brightest gloss on events to date. But even though the laws so far introduced fall short of the hopes of people with disabilities, it is no longer true to say that Ireland has no anti-discrimination legislation. The Employment Equality Act and the Equal Status Act give disabled people a place among the groups which are protected from discrimination. If the Human Rights Commission Bill is passed (as required by the Northern peace agreement and as advocated in Strategy for Equality), this may give added strength to anti-discrimination measures. The new Mental Health Bill should deal with some of the issues surrounding involuntary detention. The setting up of the National Disability Authority (NDA) and Comhairle should give some statutory base to services for people with disabilities. A ‘rights not charity’ road has at least been charted.

So much for the good news. However, as recent tribunals attest, the gap between law and reality can be deep. Often, a typically Irish solution to a problem is to put in place first-rate legislation without adequate means of enforcement. It is too early to say whether the Employment Equality Agency will police job discrimination effectively, and it is not clear whether there will be a separate enforcement agency for discrimination in the provision of goods and services under the Equal Status Act. The reluctance of the NDA to take on the role of arbiter on complaints against agencies is disappointing, as is the fact that little specific support has been given to the provision of advocates–this is left to ‘voluntary groups’. Without advocacy, the most disadvantaged people with disabilities may never get as far as making a complaint.

People often become disillusioned with the law because they expect it to do things which it ain’t in the nature of the beast to do. New laws cannot do away with years of inequality; anti-discrimination legislation cannot guarantee equality of participation, nor can the rights approach kill off the spectre of charity overnight. Fersh and Thomas (1993) wrote about the ADA: ‘The ADA is not a mandate for quotas… is not an affirmative action law …does not provide for preferential treatment in the hiring of people with disabilities. The ADA does not guarantee a person with disabilities a job.’

The same–and stronger–could be said about the Employment Equality Act. All it can do is create a small patch of equal opportunities. In an unequal society (such as ours) this will first benefit ‘well-heeled articulate’ disabled people (to transpose the terms used about the first wave of women to profit from anti-discrimination legislation). And although this is important for the individuals concerned and as a symbol of a new openness, extra measures will be needed if the average member of this minority is to benefit.

Law cannot of itself confer equality on members of marginalised groups, but it does set the bottom line in ruling out blatant discrimination, spelling out basic rights for citizens, and allowing individuals to pursue justice through the courts. The fact that individuals from such groups are deemed worthy of legislation or the trappings of a court case sends an important message to society as a whole. As Caroline Gooding (1994) puts it: ‘The law provides the framework within which groups and individuals interpret the nature of their interests and conflicts… It has a symbolic function as a forum for articulating alternative visions….’

Anti-discrimination law can insist on ‘similar treatment for the similarly situated’, can outlaw overt prejudice, can sometimes close substandard institutions. But what of those who are not ‘similarly situated’? Those who need more than an on-off ramp to participate on anything like equal terms? Those who in fact need ‘special’ rights? This is sometimes seen as the weakness of the rights-based approach–it can overturn discriminatory exceptions, but can it make good exceptions for those who need them? Yet rights-based law as it developed in the US through cases fought on behalf of people with learning disabilities (for example Pennhurst) won a ‘right to habilitation’ which was in fact founded on a person’s difference. This allowance for difference was the basis for ‘reasonable accommodation’, that lynchpin of the ADA approach. One of the major disappointments of the Irish legal journey has been the lack of understanding of this concept evinced by the Supreme Court judgement on the 1997 Employment Equality Act. In the US ‘reasonable accommodation’ was balanced by the notion of ‘undue hardship’, thus allowing commercial concerns to be considered by the courts; and accessibility expenses attracted tax breaks. Here, the spectre of a lift in every corner-shop obscured the fact that fewer than ten per cent of disabled people need a lift, and that experience in other countries has shown that most reasonable accommodations are mundane and cheap (US JAN Network quotes an average cost of less than $200).

Only in allowing for difference will law properly cater for minorities; and yet the paradox is that allowing for difference can lead to creeping segregation and substandard services. This essential tension is well expressed by Martha Minow (1987): ‘Rights founded on sameness could support deinstitutionalisation for mentally retarded people but not new community services and programs. Rights founded on difference risk merging into the kind of rationale that produced the problem in the first place: the rationale of fundamental difference justifying exclusion from society.’

The challenge is to provide similar treatment wherever possible, and special treatment only where similar treatment is clearly insufficient. This demands a flexibility and an awareness of the power relations which sometimes make it convenient for the categorisers to corral the poor, the sick and the disabled in a ‘special’ group. Another paradox exists in the fact that law depends on hard and fast definitions–a person has to ‘qualify’ as a disabled person under the ADA, and this means that he/she has to ’embrace the label of a socially discredited group … in order to qualify for protection’ (Bickenbeck 1999).

Bickenbeck, although he acclaims the achievements of the rights approach, feels that there are problems with the proliferation of minority groups–people have to play up their disadvantage to compete with other minorities. Disability does not always fit easily into the minority model. Zola (1989) was the first to remark that the boundaries between people with disabilities and the temporarily able-bodied are not fixed, and that the commonality of experience between people with different disabilities is sometimes small. People with learning and mental health difficulties remain at the bottom of the disability heap. ‘More universal policies that recognise that the entire population is at risk for the concomitants of chronic illness and disability’ are needed (Zola 1989), with the issue defined more in terms of redistributive justice than of minority rights.

However, the perceived impartiality of the law is a trump card for minorities. As Gooding puts it:

‘Law’s claim to be apart from and above politics, economics and culture, to offer an objective quasi-scientific analysis which results in fairness and justice is key to its legitimacy and symbolic power.’ But law’s impartiality is not absolute, because it is administered by people who belong to their own culture and share its blind spots.

Aristotle and the architects of the American Constitution who wrote so inspiringly about equality both came from slave-owning societies, and found no difficulty in accommodating their principles to this exception. Recent happenings in Irish legal circles would indicate that similar paradoxes exist here. Law is fairly impartial–but it does have hidden biases; it both influences and is influenced by the climate of opinion of the day. Would we have got the O’Donoghue judgement on the right to education of all children thirty years ago? Would we have got it without the influence of legislation in other countries?

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