Abstract
Is the UNCRPD’s Article 5 on Equality and Discrimination mainly aspirational? Or are there fair and practical strategies enabling states to provide all people including disabled people with freedom from discrimination through equal protection and equal benefit from the law? A current philosophical debate with implications for jurisprudence formulates this question as prompted by a clash between characterizing disability as “bad” difference or instead as “mere” difference. This chapter sketches out an interpretation of “mere” difference compatible with and effective in reaching equal protection and benefit for all through the law.
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Notes
- 1.
Tracy and Iacono (2008), for example, argue that involving people with developmental disabilities as tutors for medical students can change attitudes and favorably influence the health care these patients receive.
- 2.
Notably, Barnes confines her account to physical disabilities, making no judgments about badness and intellectual disability.
- 3.
See City of Cleburne v. Cleburne Living Center. 1985. 473 U.S. 432, 442.
- 4.
In the United States, the Individuals with Disabilities Education Act requires states receiving federal funding to provide a free public education for all children with disabilities between the ages of 3 and 21, 20 U.S.C. § 1412 (a)(1)(A). Many states do not provide public education before age 5 and students typically graduate from high school by age 18. Some might suggest by analogy that for people with developmental disabilities, legal status could vary by age as well. The alternative, seemingly required by Article 12, is that legal status may not vary by age; instead, after the age of majority appropriate legal supports should be available for those who need them.
- 5.
The call also noted that women and children with disabilities were subjected to misplaced paternalism.
- 6.
For a criticism of Comment 1 along these lines, see Freeman et al. (2015).
- 7.
A problematic example of substituting the best interests standard for autonomy is the reasoning in A.-M.V v. Finland (2015).
- 8.
See Buck v Bell. 1927. 274 U.S. 200.
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Francis, L.P. (2022). Forms of Equality, Faces of Discrimination: CRPD Article 5, Article 12, and the Disability’s Difference Debate. In: Felder, F., Davy, L., Kayess, R. (eds) Disability Law and Human Rights. Palgrave Studies in Disability and International Development. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-86545-0_6
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