A friend sent me a link to an article that critically discusses a
recent appellate court case finding in which sex was seen to be a major
life activity under the terms of the Rehabilitation Act. Now, before
you rejoice, let's think about this for a moment. What does this mean?
What might some of the implications be? Because, as you read on, I hope
it will become clear that this is no blanket finding and, I hope, some
of the tensions between our various understandings and definitions of
disability will be made a little more visible.
I think I am
going to end up torn between celebrating as a legal principle, the idea
that sex *is* a major life activity (where's the Wizard when I need
him?), feeling uncertain about the precedents such a finding might set,
and being deeply troubled by the assumptions that made the finding at
all possible -- because, to my mind, the way the legal team uses
personal experience makes me very worried about how disabled sexuality
is understood in the legal and mainstream worlds.
Sometimes (and this is one of them), the way you get to a right decision is as important as the decision itself.
Remember a while ago, when the news broke that the Danish government was considering funding access
to sex workers for a disabled man? Oh yes, problematic... in so many
ways, I know. Feminists hated it. Disability activists both hated and
loved it (for different reasons). Some perspectives here and here; summary essay here.
In all of the outcry -- what does this say for disabled people,
disabled men (for it was mainly men), the female sex workers, who would
qualify -- I don't remember seeing any discussion of the justification
for this and, subsequently, of whether sex can be considered a major
life activity.
This finding is under the Rehabilitation Act and not the ADA. The Rehabilitation Act
"prohibits discrimination on the basis of disability in programs
conducted by Federal agencies, in programs receiving Federal financial
assistance, in Federal employment, and in the employment practices of
Federal contractors." So, the government won't be asking people to
accommodate your sexuality any time soon.
The case in question is Adams v. Rice, and you can read about it in detail here. That said, I recommend, if you can, reading the actual text of the decision. This is Professor Colb's summary of the issue as it started out.
The plaintiff in Adams
is a woman who applied for the U.S. Foreign Service, scored extremely
well on the entrance examinations, and received medical clearance to
join. Soon after her acceptance, however, she was diagnosed with breast
cancer and had to undergo surgery and other treatment for it. Upon
hearing about her breast cancer, the State Department revoked her
medical clearance and thus disqualified her from the Foreign Service. Adams
brought suit under the Rehabilitation Act of 1973. She claimed as her
disability the cancer from which she had suffered prior to successful
treatment. The trial court granted summary judgment to the defendant,
finding that Adams did not have a record of disability for purposes of
the Rehabilitation Act.
...
It is undisputed among the parties in Adams
that cancer qualifies as a “physical impairment” for purposes of the
law. The controversial question is whether the impairment
“substantially limit[ed]” one or more of the plaintiff’s “major life
activities.” The major life activity limitation that Adams alleged, and
that the Court of Appeals accepted as qualifying under the statute’s
requirements, was the sexual dysfunction that she said resulted from a
combination of surgery (a mastectomy), which affected her body image
and self-esteem, and medication (tamoxifen), which affected her libido.
The Court of Appeals agreed that an
inability to become involved in sexual relationships represented a
substantial limitation on a major life activity and that Adams’
discrimination claim therefore should have survived the State
Department’s motion for summary judgment.
That
all looks fine, right? But how they got there is where the rubber hits
the road. If you go back and read the actual text of the decision, you
will see how the attorneys for Ms. Adams had to work through the ADA
and back again to make their case seem relevant to the Rehabilitation
Act. Being disabled for one does not necessarily mean you are disabled
for the other. Just as being disabled for the ADA does not necessarily
render you disabled for SSI. Disability is defined by function/capacity
in a given context; it is therefore variable and open to negotiation.
Adam's
counsel's thinking is beautifully clear and utterly smart: it
highlights the way in which current disability legislation forces those
who would bring a case to define themselves as victims in some way.
Their strategy points out the difficulties of actually getting traction
in a lawsuit. And that's where the difficulties for me begin.
One
of the mantras I often hear is that the personal is political. It so
is. It so is. And that's where the difficulties come in. Because in
getting the job done, Ms. Adams' lawyers use degree of function to
imply membership in the identity category of disabled. They underscore
the suffering that comes with the identity of being disabled. They turn
Ms. Adams' very personal pains and fears into a victim narrative which
though personal at first becomes political: Ms. Adams' case does not
exist in isolation. It could become a model for other cases. It
certainly establishes a way of understanding what it means to be
disabled by breast cancer; it may also offer a -- to my way of thinking
-- incorrect path to analysing and establishing policy about disabled
sexuality.
Ms. Adams claims that her surgery and medication
affected her sexuality. Two things strike me here. Is it surprising
that surgery, cancer, and the contexts in which femininity are defined
have a deep effect on a woman? Barbara Ehrenreich
is good on this? In other words, I totally validate Ms. Adams'
experience; I have nothing critical to say here. Her experience is what
it was and is; I have no right to speak against it. My concern is what
this experience comes to mean in this case, to the legal professionals
who might read about it, and in the context of any other potential
cases/legislation.
What happens when the case ceases to be about
Ms. Adam's struggle to regain her richly deserved place and is more
about how disabled people can gain justice under the law? What happens
when the statements Ms. Adams makes about her own sexuality come to
describe the default understanding of the possibilities of disabled
sexuality?
Ms. Adams says:
Like many breast
cancer survivors, whether by virtue of my discomfort with the way my
body looks, loss of sensation after my surgeries, my deep-seated fear
that prospective suitors will reject me because of my history of
cancer, loss of a breast, and current physical appearance, or the side
effects of medication that causes loss of libido, I now find that the
prospect of dating and developing an intimate relationship is just too
painful and frightening. While I have overcome the physical disease, my
ability to enter into romantic relationships has been crippled
indefinitely and perhaps permanently.
For Ms. Adams, in the
context of her appeal, her experience becomes a defining state. It is
no longer simply her experience. Her life, her feelings, her body now
come to stand in and represent those of other disabled people, other
survivors, others who would bring a case under similar terms. Outsiders
have their expectations reconfirmed; survivors of breast cancer may
have overcome their disease, but they are still, nonetheless, damaged
goods. "Crippled" not by the disease but by an inability to reenter
into major life activities.
Professor Colb takes up an interesting perspective: "When
the law seeks to extend protection only to those who are truly
disadvantaged, it – perhaps inadvertently – compels plaintiffs to adopt
a victim identity. Rather
than saying only that she had cancer and that she survived it and can
now do anything that anyone else can do, Kathy Adams was compelled to
tell the court (and thus the public) about her fears of sexual intimacy
and the debilitating impact of her surgical disfigurement and medical
side effects. Rather than focusing on the misdeeds of the State
Department, Adams was forced to focus on herself and her limitations."
Indeed.
This is one of the consequences of trying to define disability and
measure its sequelae in medical terms. You end up having to make
arguments about the insufficiency of your life, your body, etc.; you
don't get to focus on the bad deeds of those around you, the societal
forces that keep throwing up barriers as you go about your life. You
end up having to justify yourself.
I don't yet have much to add. What WCD says here is just about what I believe as well.
