The Different and Equal Premise and the Law

Filed Under (autism, Law) by Estee on 09-01-2013

I’ve started my next semester of my Master’s studies, now taking law and cultural studies at the same time, hoping to engage the law through an arts-based approach. Sitting in class yesterday discussing various issues around pain and physiotherapy, the issue of Occupational Therapy also entered the discussion. It started as a discussion regarding a study conducted by a person with CP about a person with CP who took a superior position over her subject and seemed to take a neo-liberal stance – the subject was not doing their exercises to mitigate/manage their pain and the implication of blame took the perspective of an obligation to become a citizen by managing oneself (arguably to become more normalized). The hidden bias was that we must look after our health for the purposes of becoming productive citizens of the state, and we are less valuable if we do not do so. There are elegant counter-arguments, namely Sunny Taylor’s The Right Not to Work, which I would encourage you to read if you have the time.

I will continue to write on something I picked up from Carol Tavris and included in my essay The Mismeasure of Autism – that autistic citizens are different and equal. Marcia Rioux also utilizes this notion in speaking of the law for people with disabilities:

“If equality depends on sameness or on being similarly situated, then the fact of difference warrants unequal treatment. A concept of equality that requires that likes be treated alike and unlikes be treated differently presumes the impartial enforcement of legal and social rights. It makes no difference to attempt to clarify what makes people equal in particular circumstances or for particular purposes. There is no prescriptive element to the principle on which governments might base their decisions about which people are to be accorded unequal treatment. The principle simply establishes the generally accepted rule of law that procedural fairness must be applied for law to be legitimate. Neutrality in the application of the law and the absence of different treatment are presumed to result in equality. For example, people who cannot fill out forms are deined the right to vote, while others, who can read and write, are afforded that right. The law is equally applied to all those who cannot provide the information; therefore the fact that it has a differential impact on those with intellectual disabilities is insignificant. So are extraneous causes for such lack of ability; neither the systemic, legal exclusion of those with intellectual disabilties from the regular education system nor the means of eliciting the information, which is in a mode of communication less accessible to them than to others, are taken into account in determining justified and unjustified distinctions.” (Rioux, 1994).

Rioux contends that the law assumes here that justice is safeguarded on this premise of sameness as it is appropriated to the notion of equality. We still tend to utilize the arguments that all humans are the “same,” even with their disabilities, despite the complexities and different needs among, for the purposes of this blog, autistic individuals. Which leads me to quickly elaborate on my point made in my previous posts that autism is a social construction. It is if we consider that the diagnositc criteria is created by teams of people and the notions and conceptions evolve with changes in society and over time. Arguments can be made for and against these constructions. Yet, the communities that have been created as a result of the construction have been helpful for many people. It can often help to relate to others. This collectivism, however, does not assume that all autistic people share the exact same experiences or share the same feelings about their lives, or about autism itself. What we can value is the many and varied experiences that people may share with us. This can avoide a possible damaging reification and over-generalization about autism, indviduals, experience and needs. It does not consider the complex cultural, socio-economic, gender-based and other intersections that also effect individual experience.

Let me go back to the beginning of my thoughts about the CP (Cerebral Palsy) article. It was the idea of various therapies that struck me and an autistic person’s right to deny treatment, and to deny being touched. I think back to when Adam was much younger – when some therapists thought to rough and tumble him would normalize him, or that touching him for therapeutic reasons was simply okay. Occupational therapists do this all the time. I never thought twice about it. I always thought that OT was helpful for Adam, and I do think it was helpful for his motor-planning and sensory needs. It was the manner and the respect of therapists towards Adam’s dignity that I continue to seek out for him. Over time, I came to ask these questions: Is he being respected? Do people attempt to teach him on the premise of “being less than competent” than a so-called “normal”population? Do those who engage with him respect him in all ways or feel he must always be taught to be normal? Do we play on his terms as well as asking him to play on ours? Is the relationship reciprocal? Complicating matters regarding the autistic child is the matter of how we treat and regard children in general. Yet we all know that the fully verbal child has the ability to say no (even if not listened to) and the autistic child may say no in their behaviour, or that there may be ways of judging “no” if we are patient and willing to pick up the many subtle communications outside of typical langauge systems.

The focus of my work continues along the different and equal premise in all forms and continues to explore emanciaptory research and participation of non-verbal autistic individuals, often deemed the least valuable and able in our society, therefore leading to continued normalization treatments, exclusion, and sadly, abuse.

“Setting the equality standard as an outcome measure removes the need for each disadvantaged group to demonstrate discrimination. It replaces the capacity to compete as the basis for political obligation. It takes into account the social reality of the disabled and non-disabled as well as their biological differences. And it thus makes the achievement of social justice dependent on a recognition of those differences that must be accommodated to achieve equality of well-being.” (Rioux, 1994).

Now with The Autism Genome Project seeking ways to isolate and identify the autistic person in vitro, and considering the date of Rioux’s article (1994), I wonder how much longer it will take for the different and equal premise to take hold in law so that autistic people can be considered valued Canadian citizens.

References:

Gaskin, C., Anderson, M., Morric, T (2012) Physical Activity in the Life of a Woman with Cerebral Palsy: Physiotherapy, Social Exclusion, Competence and Intimacy. Disability & Society 27:2 (March), 205-218.

Rioux, Marcia H. (1994) Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction of Inequality, 7:1 Canadian J.L. & Jur. 127.

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About Me


ESTÉE KLAR

I’m a PhD candidate at York University, Critical Disability Studies, with a multi-disciplinary background in the arts as a curator and writer. I am the Founder of The Autism Acceptance Project (www.taaproject.com), and an enamoured mother of my only son who lives with the autism label. I like to write about our journey, critical issues regarding autism in the area of human rights, law, and social justice, as well as reflexive practices in (auto)ethnographic writing about autism.