Document Type

Article

Publication Date

2019

Abstract

This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.

Notwithstanding nearly thirty years of experience under the Americans with Disabilities Act (ADA), and an impressive corpus of constitutional case law and state statutes, the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law a half century ago. The reasons for this are complex and, to a great extent, flow from centuries of prejudice -- often hidden prejudice, often socially-acceptable prejudice -- that has persisted in spite of prophylactic legislative and judicial reforms , and a seeming (on the surface) significant uptick in public awareness.

Soon after the passage of the ADA, advocates and scholars began to slowly turn their attention to the potential redemptive influence of international human rights law. By 2008, the United Nations ratified the Convention on the Rights of Persons with Disabilities (CRPD), the most significant historical development in the recognition of the human rights of persons with mental disabilities, inspired by the participation of persons with disabilities and the clarion cry, "Nothing about us, without us." This has led commentators to conclude that the CRPD "is regarded as having finally empowered the 'world's largest minority' to claim their rights, and to participate in international and national affairs on an equal basis with others who have achieved specific treaty recognition and protection."

In this paper, we will consider whether the CRPD (still not ratified by the US) is likely to finally extinguish the toxic stench of sanism that permeates all levels of society. First, we will briefly discuss both our sanist past and our sanist present. Then, we will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In doing so we will look at five universal core factors that must be considered when evaluating the likely impact of the CPRD. In this latter inquiry, we draw largely on the tools of therapeutic jurisprudence. We conclude by finding that the CRPD demands law reform at the local and national level all over the world (we briefly consider Canadian law in this paper, as an example of a Western nation that has ratified the CRPD).

Comments

Brooklyn Law Review, Vol. 84, Issue 3 (Spring 2019), pp. 873-908

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