Interesting Article on the Construction of Disability in China

New on SSRN: Yee-Fui Ng, Disability Rights v. Quality Birth Rhetoric: The Construction of Disability in China, (2012) LAWASIA Journal 1.  The abstract doesn't really tell you much, but here's an excerpt from the paper:

This article explores the tension between China’s strong engagement in the area of disability, and the widespread acceptance in China of the importance of ‘quality birth’ (or suzhi) and the resultant perceived need to reduce the number of disabled babies being born.5 This article aims to explore this tension by critically analysing the laws and government rhetoric on disability rights, against the ‘quality birth’ laws and rhetoric, which include laws sanctioning sterilisation of disabled couples. At a broader level, the article examines the strategic way in which the Chinese government uses the language of disability in the two separate strands of disability discourse. In doing this, the article also sheds light on how the disabled are defined, administered, policed and governed in postsocialist China.

I argue that although at face value the Chinese government’s emphasis on disability rights and the simultaneous focus on ‘quality births’ seem to be diametrically opposed, these separate rhetorical strands work harmoniously with each other due to the pervasive influence of suzhi or ‘quality’ on the government and the Chinese population. My contention is that the combined effect of government policy in the area of disability is that there will be fewer people born with disabilities in Chinese society, as pre-birth disabilities are to be prevented through abortion to increase the ‘quality’ of the population, while those disabled post-birth are rehabilitated under the Chinese government’s disability rights efforts to contribute to the socialist regime. I also argue that as the concept of ‘quality’ strongly permeates contemporary Chinese society, where the Chinese public self-regulate, their behaviour and goals are aligned with the government to reduce perceived ‘low quality’ births; thus disabled foetuses are more likely to be aborted.

The Guardian on Prisoners with Disabilities in South Africa

Maybe the Pistorius case will raise awareness of this problem.  Worse than Goodman v. Georgia!

European Disability Forum Proposes European Accessibility Act

See this package, which includes a position paper and other information.  The introduction:

In the framework of the EDF Top Campaign on the theme of “Freedom of Movement”, one of our objectives has been to promote the adoption of an ambitious and legally binding European Accessibility Act. In these terms, EDF welcomes the European Commission’s initiative to issue an Act and presents the views of the disability movement on this upcoming European Accessibility Act.

The accessibility of goods and services is a key factor for the quality of life of persons with disabilities and a lot of work still remains to be done in order to achieve it. Persons with disabilities cannot fully enjoy their rights to free movement as they face major obstacles preventing them from accessing mainstream goods and services as easily as any other EU citizen. In this respect,EDF published a Freedom Guide, which contains examples of obstacles faced by persons with disabilities, as well as reactions from policy makers and the industry. Initiatives of the European Commission are necessary as it is unacceptable that freedom of movement, a fundamental principle of the EU, is undermined by a lack of accessible goods and services. Equality between men and women should also be one of the guiding principles of the Act, which implies the mainstreaming of gender in the future legislation and supporting measures. 

The Act represents an opportunity for the Commission to implement the UN Convention on the Rights of Persons with Disabilities (UN CRPD), which has been signed by all Member States and ratified by a majority of EU countries and by the EU itself. The political will and ambition of the European Commission and subsequently of the European Parliament and the Council will be a test of the real commitment of the EU to the implementation of the UN CRPD. We consider that only an ambitious and legally binding Act based on the principles stated in the UN CRPD and covering as many services and goods as possible could be a first step to implement the accessibility provisions of the UN CRPD.

Supreme Court of Canada Decides Important Learning Disability Education/Budget Cuts Case

Today, the Supreme Court of Canada issued its judgment in Moore v. British Columbia, a case that presented the question of a province's obligation to provide special education services to students with learning disabilities.  Although I'd like to hear reactions from my Canadian readers, and the court did not endorse the systemic remedy that the plaintiff had sought, the case seems, overall, like a big win for students with disabilities, and it includes some choice pull quotes, including (emphasis added):

The preamble to the School Act,[1] the operative legislation when Jeffrey was in school, stated that “the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. This declaration of purpose is an acknowledgment by the government that the reason all children are entitled to an education, is because a healthy democracy and economy require their educated contribution. Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.

And (with the awesome cite to Brown v. Board):

A central issue throughout these proceedings was what the relevant “service . . . customarily available to the public” was. While the Tribunal and the dissenting judge in the Court of Appeal defined it as “general” education, the reviewing judge and the majority defined it as “special” education. 

I agree with Rowles J.A. that for students with learning disabilities like Jeffrey’s, special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students:

It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all. . . . In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved. Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education. [Emphasis added; para. 103.] 

The answer, to me, is that the ‘service’ is education generally. Defining the service only as ‘special education’ would relieve the Province and District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability.

To define ‘special education’ as the service at issue also risks descending into the kind of “separate but equal” approach which was majestically discarded in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination. It is not a question of who else is or is not experiencing similar barriers. This formalism was one of the potential dangers of comparator groups identified in Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396. 

If Jeffrey is compared only to other special needs students, full consideration cannot be given to whether he had genuine access to the education that all students in British Columbia are entitled to. This, as Rowles J.A. noted, “risks perpetuating the very disadvantage and exclusion from mainstream society theCode is intended to remedy” (see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at p. 1237; Gwen Brodsky, Shelagh Day and Yvonne Peters, Accommodation in the 21st Century (2012) (online), at p. 41).

And the nub of the court's conclusion:

It was therefore the combination of the clear recognition by the District, its employees and the experts that Jeffrey required intensive remediation in order to have meaningful access to education, the closing of the Diagnostic Centre, and the fact that the Moores were told that these services could not otherwise be provided by the District, that justified the Tribunal’s conclusion that the failure of the District to meet Jeffrey’s educational needs constituted prima facie discrimination. In my view, this conclusion is amply supported by the record.

And this discussion of budget cuts (which has obvious resonances with budget-cut litigation under the ADA here in the US):

The District’s justification centred on the budgetary crisis it faced during the relevant period, which led to the closure of the Diagnostic Centre and other related cuts. There is no doubt that the District was facing serious financial constraints. Nor is there any doubt that this is a relevant consideration. It is undoubtedly difficult for administrators to implement education policy in the face of severe fiscal limitations, but accommodation is not a question of “mere efficiency”, since “[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier” (VIA Rail, at para. 125).  

In Jeffrey’s case, the Tribunal accepted that the District faced financial difficulties during the relevant period. Yet it also found that cuts were disproportionably made to special needs programs. Despite their similar cost, the District retained some discretionary programs, such as the Outdoor School — an outdoor campus where students learned about community and the environment — while eliminating the Diagnostic Centre. As Rowles J.A. noted, “without undermining the educational value of the Outdoor School, such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students” (para. 154). 

More significantly, the Tribunal found, as previously noted, that the District undertook noassessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. This was cogently summarized by Rowles J.A. as follows:

The Tribunal found that prior to making the decision to close [the] Diagnostic Centre, the District did not undertake a needs-based analysis, consider what might replace [the] Diagnostic Centre, or assess the effect of the closure on severely learning disabled students. The District had no specific plan in place to replace the services, and the eventual plan became learning assistance, which, by definition and purpose, was ill-suited for the task. The philosophy for the restructuring was not prepared until two months after the decision had been made (paras. 380-382, 387-401, 895-899). These findings of fact of the Tribunal are entitled to deference, and undermine the District’s submission that it discharged its obligations to investigate and consider alternative means of accommodating severely learning disabled students before cutting services for them. Further, there is no evidence that the District considered cost-reducing alternatives for the continued operation of [the] Diagnostic Centre. [Emphasis added; para. 143.] 

The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.

Globe and Mail on Canadian Study of Housing First

See this article.  An excerpt:

The study’s preliminary findings, to be released Friday by the Mental Health Commission of Canada, show the potential value of an approach known as “housing first.” 

The idea is that a safe and comfortable place to live is an essential first step to coping with mental illness, and that giving people the support they need in their communities will reduce the burden on shelters, hospitals and the criminal justice system. 

The research project looked at how participants like Ms. Day fared compared with others in a control group, who were treated in the more conventional way – in systems that rely on shelters and temporary housing and require homeless people to meet a number of conditions, like getting treatment for addictions, before becoming eligible for help with an apartment. 

The housing-first approach does not expect people to prove they are ready for a home of their own. It offers them choices of where they would like to live, usually apartments rented from private-sector landlords, and then helps them deal with their problems.

The Guardian on British Prisoners with Disabilities

See this troubling article.  An excerpt:

Hall's claims, though shocking, are not unique. Despite the Paralympics helping to challenge myths and raise awareness about disability, the neglect of disabled people in prison is well documented. 

Estimates of the number of disabled prisoners vary. The prison service database records a figure of 5% (around 4,500 prisoners), but inspectorate surveys record 19% (around 16,000). A Ministry of Justice (MoJ) survey earlier this year, found 18% of prisoners interviewed had a physical disability of some kind. The dramatic rise in the number of older prisoners in the system over the last decade is likely to further increase the disabled prisoner population. 

Yet a joint report by the Inspectorate of Prisons and Care Quality Commission in 2010 found an ageing prison population, where "disabilities were not being adequately dealt with and many prisons not having a disability policy". It also reported that it was "rare to find any form of needs analysis or consultation with prisoners to help establishments carry out their duties under the Disability Discrimination Act".

de Lora on Disability-Selective Abortion and the CRPD

Over at Harvard Law's new Bill of Health blog, Spanish law professor Pablo de Lora has this interesting post on efforts by disability rights groups in Spain to use the Convention on the Rights of Persons with Disabilities to justify a ban on disability-selective abortion.  I am not persuaded by de Lora's discrimination analysis, and my sense is that the reaction of most American readers to the issue will be driven by their views of abortion in general.  But the post is very much worth a read.

B.C. Supreme Court Invalidates Canadian Statute Prohibiting Physician-Assisted Suicide

Not Dead Yet has the news.

Human Rights Watch on Disability Voting Rights in Peru

See this press release, with linked report.  The release begins:

Peru should remove significant barriers preventing people with disabilities from exercising their right to vote and other civil rights, Human Rights Watch said in a report released today. The failure to dismantle the obstacles is undermining Peru’s leadership as one of the first countries to ratify, in 2008, the Convention on the Rights of Persons with Disabilities. 

The 89-page report, “‘I Want to be a Citizen Just Like Any Other’: Barriers to Political Participation for People with Disabilities in Peru,” documents the legacy of a policy, changed only in October 2011, that arbitrarily denied people with sensory, intellectual, and psychosocial disabilities their right to vote, considering them legally incompetent to exercise such a decision. Human Rights Watch also examined the barriers that people with these and other disabilities face when exercising their political rights, including the difficulty of getting identity documents essential for voting, and the absence of support mechanisms to help people with disabilities make voting decisions. 

“Peruvians with disabilities are no-less citizens than anyone else,” said Shantha Rau Barriga, disability rights researcher and advocate at Human Rights Watch. “Everyone is equally entitled to vote and participate in society – and the law and government policy should see to it that they have the support they need and that no one is arbitrarily and unjustifiably excluded.” 

The report is based on interviews with more than 100 people with disabilities and their families, as well as with Peruvian government officials and disability advocates.

New Zealand Court of Appeal Holds State Must Pay Parents Who Care for Children with Disabilities

See this interesting article, which begins:

In a landmark decision, the Court of Appeal has this morning ruled that parents of disabled children are being unreasonably discriminated against by not being allowed to be paid carers.
The test case today dismissed the Ministry of Health’s appeal against a finding that its current policy is discriminatory. 

“The parents should be compared to those persons who are able and willing to provide disability support services to the ministry,” the court ruled. 

Today’s decision follows a court hearing in February that was told only rough estimates had been done of what it would cost the ministry to pay parents of disabled children. Estimates varied from between $17 million and $593 million. 

The ministry appealed, saying the Bill of Rights allowed for "a reasonable limits of rights to achieve a sufficiently important governmental objective" but the Court of Appeal ruled the policy "imposed a limit that was greater than was reasonably necessary… and was not a reasonably limitation on the right to freedom from discrimination".

Easton on Web Accessibility in the UK

Just out: Catherine Easton, Revisiting the Law on Website Accessibility in the Light of the UK's Equality Act 2010 and the United Nations Convention on the Rights of Persons with Disabilities, 20 Int'l J.L. & Info. Tech. 19 (2011).  The abstract:

Use of the Internet has been proven to provide significant, wide-ranging benefits for disabled people research, however, such as a large scale global study commissioned by the United Nations, has determined a low level of accessibility. These findings have been supported by further multi-disciplinary work. 

While in other jurisdictions there have been definitive rulings on the need for the provision of accessible websites, a UK court has yet to lay down such a duty in relation to a website. It is accepted that there are a number of wide ranging issues interacting in this multi-faceted area, such as standardisation, industry self-regulation and the determination of an international consensus on what constitutes accessible design. However, this paper will focus upon the Equality Act 2010 and the changes it makes which could impact upon the creation of a definitive precedent. 

The Equality Act 2010 amended and combined pre-existing anti-discrimination provisions into one overarching piece of legislation. An analysis can be undertaken of how this legislation through its reasonable adjustment duty, public sector duty and the potential to validate regulations may be able to bring clarification in the area of website accessibility. 

Furthermore, the United Nations Convention on the Rights of Persons with Disabilities in its Article Nine specifically applies to access to the Internet. Given the international nature of website accessibility and the innovative provisions contained in the Convention, its impact on website design and inclusion could potentially be far-reaching. This article analyses the area of website design in the light of these recent legislative developments.

Interesting New Web Accessibility Suit Filed in Great Britain

See this press release from the Royal National Institute of Blind People.  It begins:

Leading sight loss charity the Royal National Institute of Blind People (RNIB) is taking legal action over low cost airline bmibaby's failure to ensure web access for blind and partially sighted customers. 

Bmibaby Ltd has failed to make vital changes to its website to allow customers with sight loss to use their online services instead of being forced to search for flights or make bookings via a call centre. Concerns were first raised in 2010 when RNIB was made aware of the problem through frustrated customers, no longer able to book flights through the bmibaby website. 

One of those customers is Alexandra from Loughborough, who is registered blind. She says: "I regularly need to book flights and had also wanted to book a surprise weekend away for my husband on one occasion, but was let down by the website. I didn't want to use the call centre as costs can mount up and I wanted the freedom to compare flights and prices before making a decision.

Unfortunate Shift in Attitudes Toward People with Disabilities in Ireland

See this interesting and troubling story, which begins:

PEOPLE IN IRELAND’s attitudes towards those with a disability have become more negative in the last five years, according to new research out today.

Jamaican Parliament to Become More Accessible

See this interesting story, which begins:

THE Houses of Parliament is pledging to at least have the Oath of Allegiance written in Braille to accommodate visually impaired community persons. 

This, after Government Senator Floyd Emerson Morris — who made history in 1998 when he was the first blind person to be appointed to the Upper House — had to be assisted with the words of the oath when he was being sworn in for the second time on Tuesday.

Interesting Papers from the American Journal of Comparative Law's Symposium on Antidiscrimination Law

Just out: the American Journal of Comparative Law's symposium issue on "Evolutions in Antidiscrimination Law in Europe and North America."  The issue contains two papers about disability rights law:

1.  Gerard Quinn & Eilionoir Flynn, Transatlantic Borrowings: The Past and Future of EU Nondiscrimination Law and Policy on the Ground of Disability, 60 Am. J. Comp. L. 23 (2012).  The abstract:

This Paper explores the interrelationship between U.S. and EU disability discrimination law in terms of founding principles, implementation and practice. It addresses the evolution of a “civil rights” model (broadly based on a social construct of disability) which underpins discrimination law in the United States, and its subsequent adaptation in the EU context to fit with a broader European social model. This Paper also examines the role of the UN Convention on the Rights of Persons with Disabilities in furthering the shift from civil rights approaches to locating disability rights within a broader theory of social justice, and the significance of the EU's conclusion of procedures necessary to ratify the Convention. Finally, it offers some perspectives on the future of a transatlantic dialogue on ensuring that people with disabilities are viewed as rights-holders, supported, and enabled to exercise their rights.

2.  Elizabeth Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act, 60 Am. J. Comp. L. 205 (2012).  The abstract:

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts' narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA carves up the definition of disability, for the first time distinguishing “actual disability” from “regarded as disability,” and expressly reserving the right to accommodation for “actual disability.” This move repudiates a strong form of the social model of disability and accedes to a hierarchy of discrimination that treats the failure to accommodate as a different and lesser form of bias than direct discrimination. Second, and less prominently, the ADAAA introduces an express ban on reverse discrimination claims. Though the provision is arguably positive on a practical level, the fact that this provision could pass without protest-- at a time when reverse discrimination claims on the basis of sex and race have become increasingly prominent and legitimate--sets into relief the low status of disability in the popular imagination. Finally, the expanded definition of “disability” under the ADAAA, though useful for many potential plaintiffs, may have unanticipated attitudinal consequences. As the class of those who count as disabled grows, a legal buffer is removed between “nondisabled” and “disabled,” in ways that may increase the existential anxiety of the nondisabled and result in empathy failures. A key question is how to turn existential anxiety about becoming disabled into an appreciation of disability law as a social insurance policy for everyone. Efforts to improve attitudes toward disability will be critical in the coming years, as anticipated by the awareness-raising Article 8 of the UN Convention on the Rights of Persons with Disabilities.

An Interesting Counterpoint to the Easyjet Story

See this story from Australia, describing a case in which an advocate who uses a wheelchair lost a lawsuit very similar to the Easyjet suit I blogged about earlier today.  The article also is an interesting read on attitudes toward disability rights enforcement in Australia generally.

Easyjet Fined for Disability Discrimination

See this article by that title.  It begins:

The low-cost airline Easyjet has been found guilty of disability discrimination and ghee 70,000 Euro by a French court. 

The case centres on the airline refusing to allow three wheelchair-bound passengers to board its planes, citing security reasons. 

“This is a landmark ruling,” said Patrick de la Grange, lawyer for the plaintiffs and for the French Paralysed Association (APF).

Assisted Suicide Should Be Legal, Says Major Report to Parliament

See this article by that title from the Guardian.  It begins:

MPs should consider changing the law on assisted suicide to allow some terminally ill people to end their lives at home with the help of their doctor, a major report into the subject has concluded. 

The Commission on Assisted Dying, chaired by the former lord chancellor Lord Falconer, says a choice to end their own lives could be safely offered to some people with terminal illnesses, provided stringent safeguards were observed. 

Describing the current law on assisted dying as "inadequate and incoherent", the commission will today outline a legal framework that would permit only those who had been diagnosed with less than a year to live to seek an assisted suicide, and then only if they met strict eligibility criteria.

The commission at issue appears to have been put together by a right-to-die group called Dignity in Dying.

And a Similar Article From Canada . . .

See this piece from CBC News about the lack of mental health crisis services in Ottawa, Canada.  It begins:

Ottawa police and area shelters are calling for more resources to help people with mental health issues before they end up in crisis. 

In 2011 police said they responded to more than 4,000 calls that were related to a mental health issue, up 40 per cent from 2010. 

Police say because people aren't getting the services they need earlier, the police end up dealing with them as they investigate criminal activity.

Lawson on the (UK) Equality Act and Disability

Just out: Anna Lawson, Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated, 40 Indus. L.J. 359 (2011).  The abstract:

This article critically evaluates employment-related changes made by the Equality Act 2010 from a disability perspective. It identifies opportunities to enhance disability equality which were seized as well as those which were missed. Where relevant, these are held up for scrutiny through the lens of the United Nations Convention on the Rights of Persons with Disabilities, by which the UK is now bound. Two respects in which the Equality Act may fall short of that Convention's demands are identified. In addition, the article draws attention to equality measures in the Act which are specific to disability. It is suggested that, by including these measures and highlighting their disability-specific application, the Act has generated fresh opportunities to open debate about whether such measures should be extended to other protected characteristics.