HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, June 30, 2020

Claiming Disability

Katie R. Eyer (Rutgers), Claiming Disability, B. U. L. Rev. (Forthcoming 2021).

We stand at the cusp of a potentially transformative moment for disability rights. For decades, the disability rights movement has been burdened by a profound obstacle: many of its potential constituents do not self-identify as disabled. Disability has long been constructed in our society as quintessentially associated with intrinsic limitation, and especially an inability to work. Although modern disability civil rights law includes no such requirement, it has not yet transformed entrenched colloquial understandings. As such, many people who qualify as disabled under contemporary civil rights law nevertheless do not self-identify in that way.

But numerous factors make this a uniquely opportune moment to transform this state of affairs. The ADA Amendments Act, enacted in 2008, for the first time has provided a definition of disability that is broad, inclusive, and untethered to functional limitation. So too the growth of disability pride movements, social media, and the development of new academic ideas in disability theory all hold promise for encouraging a mass movement of disability identity. If only a fraction of those who qualify as disabled under the ADAAA were to “claim disability” and embrace a disabled identity, millions of Americans would identify as disabled for the first time.

Such “claiming” of disability has the potential to be transformational for disability rights. As scholars have long observed, the disability movement has struggled to dislodge bias against people with disabilities, even as the law has formally afforded them with rights. Even in a time where bias against other stigmatized groups has rapidly decreased, disability bias has remained unyielding. This Article suggests that “claiming disability” holds the potential to radically disrupt this state of affairs, by vastly expanding the scope of who people think of as “disabled,” including, potentially, themselves.

In addition to its benefits for disability rights, this Article argues that “claiming disability” may also be individually transformational. For too many people, the experience of medical or mental health impairment is one of enforced silence; of closeting and covering; of hiding pain and difficulty; and of not taking pride in identity. Moreover, it is too often the case that societal tropes of deficiency and limitation associated with impairment can be internalized in the absence of a positive disability frame. Claiming disability thus holds the potential to offer a liberatory alternative to the current experience of impairment, even as it paves the way for broader transformations in disability rights.

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