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World Mental Health Day: Intersectional justice and disability

On 11 October, we commemorated World Mental Health Day.

  • One in five women live with a disability globally.

  • An estimated one in four households has a person with disabilities.

  • Women are more likely than men to become disabled throughout the course of their lives.

  • Women comprise up to three-quarters of persons with disabilities in low and middle-income countries. Prevalence of disability is higher among marginalized populations and people in rural areas.

Persons with disabilities are at heightened risk of violence and discrimination, and they are more likely than others to suffer in silence, excluding them from meaningful justice and collective reparations.

What can we do as advocates? For a start, we can apply two concepts in the practice of our work - intersectionality and substantive equality.

Structural discrimination against persons with disabilities cuts across all dimensions of their experience - from lack of access to public services, freedom to move, to receive education (including comprehensive sexual education), to have access to dignified employment, internet, communication and digital education. These factors in turn are affected by one's age, legal status in a country, marital status, socio-economic conditions, gender, ethnicity, religion amongst others. In addition to disability, several conditions render persons additionally vulnerable to violence and discrimination.

A differently abled girl of 12 years who is a refugee, who is homeless and uneducated - and who has survived sexual abuse - will have a different access to and experience of justice compared to a similarly aged girl who is not. For one, a child of refugee status, may never report an incident of sexual abuse to local police for fear of being deported. Thus structural discrimination that is happening on the basis of nationality, gender, age is operating together to prevent this child from getting access to justice. Those specific structures become then, the sites of intervention.

Where do we start?

A justice system that is intersectional is one which considers and caters to all intersecting forms of structural discrimination experienced by a person.

Crenshaw advises us to use intersectionality to advance arguments in law while at the same time, interrogate the dynamics of law, structures and society.

When working with an issue or a case, we can start with the question: how are our social structures failing persons with disability - not solely on the basis of their disability - but by their combined experience of being of a certain gender, race, religion, nationality, and having a certain form of disability. How can we use law to recognise intersecting discrimination - but also - how can advocate for better, more meaningful intersectional responses in law?

Indeed, it is an ongoing task of using and reimagining law at the same time.

Aristotle's formal equality is just not enough

In addition to intersectional justice, we've got to move from formal equality in law ("everyone is equal") to substantive equality, which focuses on equality in result. The Convention for the Rights of Persons with Disability (CRPD) achieves this by flipping back the source of disability from individual to environment.

The Convention states that it is only when the environment fails to accommodate the needs of an individual that disability occurs.

For example, if a deaf person is provided with sign language interpretation in court, no disability arises. However, if information is only provided in a standard language, disability becomes a fact. This way of understanding disability is fundamentally different from viewing disability as a consequence of an individual’s impairment. Disability occurs when persons with impairments meet an inaccessible environment. So the barrier is not the individual's ability, but, in our environment.

By placing the problem in the inaccessible environment, we en-able the environment (and not the individual) to respond. Disability becomes a fact in a discriminating environment.

The Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) also recognises the simplicity of formal equality and calls for substantive equality, which requires formal obstacles to be identified and removed.

Taking this approach, we move our examination from discriminatory events (though that too is important) to discriminatory structures formed by the prevailing social, economic and cultural context that allow for discrimination. What are the social structures that impair equality? What positive obligations should require the state to perform to correct that?

Whilst the justice system cannot solve all structural gaps, the access to justice gap is a key site for change. Justice systems are complex, intimidating and inaccessible. The adversarial process of trials disadvantages those who are not able to express themselves clearly and persuasively. Court processes are unnecessarily unwelcoming, and to a large extent intimidating. Untrained court personnel may also unconsciously prejudice persons with disabilities who are not considered reliable witnesses. Without adequate communication and psychosocial support, most persons with disabilities and their caretakers experience justice as tedious, cumbersome, confusing and traumatising.

Context is everything. Recognising power and vulnerabilities in a context, is the basis to our claims for equality - and we can use these two concepts, intersectionality and substantive equality - as tools to achieve this.

Natasha Latiff


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