Human Rights of Persons with Disabilities

Authors: Raphael Magaña & Shalini Dogra. Printed in 2012.

Individuals with disabilities have historically faced violations to their human rights and continue to face discrimination and exclusion still. Disabled[1] individuals are often misperceived as incapable of carrying out the everyday functions of life. For example, societies often assume that physically disabled individuals are incapable of carrying out the responsibilities of many jobs and contributing to the workforce. Workplaces often avoid hiring disabled individuals and fail to make their locations and facilities physically accessible to persons with disabilities. Society tends to immediately pity them, undermining their sense of self-worth and making them feel invisible and like less of a person. As a 2012 publication by PAHO states, “society often neglects persons with disabilities or stigmatizes them, forcing them to live in deplorable conditions with unmet basic human rights and freedoms[2]”.

Certain vulnerable groups experience the discrimination against persons with disabilities more severely. Disabled persons face human rights violations especially when they are women, children or stricken in poverty. For example, physically disabled women are often assumed to be incapable of experiencing the reproductive functioning of non-disabled women and so when they obtain services from a gynecologist, the doctor often fails to ask them standard questions s/he is legally obligated to ask as part of the check up[3]. Women with disabilities tend to be victims of violence at significantly higher rates than other women[4]. Some are beaten precisely because they are disabled, amounting to a violation of their right to health, life and personal integrity. Children with disabilities are often discriminated against in the field of education because they are wrongly assumed to be incapable of learning and denied of educational services. Many of the children with disabilities across the globe live in poverty, with minimal or nonexistent access to adequate medical and rehabilitation services. They are deprived of their right to the highest attainable standard of health. So, the disabled children in poverty are discriminated against and excluded from social services such as transportation and education. Being deprived of educational services, they have no platform to work out of poverty and left stranded in a vicious cycle of discrimination and exclusion.

Poverty-stricken persons with disabilities experience of discrimination especially worse. They typically face situations in which their disabilities compound. Living in poverty often means suffering from extreme malnutrition, poor living conditions, high-risk work and poor access to health care. Each of these conditions triggers disabilities. For those who already have disabilities, it exacerbates them. In general, educational services and employment are withheld from disabled individuals. For the disabled person in poverty, this withholding of education and lack of being hired for work means no access to creating a better life for themselves or breaking the shackles of social and economic deprivation. According to a PAHO study, 80% of disabled persons in the Americas region live in poverty and out of them, 90% are unemployed.[5] Worldwide, 80% of disabled persons live in poverty and according to Ambassador Susan Rice, represent “world’s largest minority”.[6] Ultimately, denying individuals of their right to education and work gradually triggers other human right violation not only for the disabled persons, but also their families. For example, if they lack adequate income, they cannot afford medical services and seek treatment for themselves. Nor can they provide an adequate quality of life for their family members.

Changing the approach to the human rights of disabled persons will help end the discrimination and exclusion they face in society. Traditionally, a “charity model” was used to address the rights of individuals with disabilities. Under this model, one starts by looking at a disabled person as someone who needs to be taken care of and from is assumed s/he has special needs. The problem with this model is that from the onset the disabled person is perceived as someone who is not equal to others or inherently the same as them. Another problematic approach that was implemented to address disability rights was the “medical model”, which started with the assumption that individuals with disabilities are people who need to be “cured and fixed”. The current approach to the human rights of disabled persons is the “social/civil rights model”. Under this model, focus in completely taken away from the disability of an individual and instead placed on society as whole; this model starts with the belief that we are all born with differences and society needs to be designed such that is accessible to all. Thus, the shift in public policy making moves from “lets take care of the disabled person to “lets get him/her in school”. Money is spent on finding a cure for a disability, but on getting a disabled person into school. With this social rights model intact, over time society will develop the expectation that disabled individuals can and will work and will stop excluding them from the workforce. It will stop spending 90% of funding on research and redirect that money to making public facilities in urban and rural areas accessible to persons with disabilities[7]. The charity model and medical model are condescending; they indirectly push the idea that a disabled person is less of a person and someone who can’t and won’t contribute to society. The social/civil rights model rejects the premises of these paternalistic approached and instead focuses on creating access for handicapped individuals in a meaningful and substantial way so that they have the same quality of life as non-disabled persons[8].

International Approach to Rights of Disabled Persons

Customary international law provides extensive protection for the rights of disabled persons and avenues for them to claim their human rights. Relevant legal standards and norms exist in the Universal Declaration for Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural rights, the Convention on the Rights of a Child, the Convention on the Elimination of all Forms of Discrimination Against Women, the Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment.). Examples of regional instruments for the protection of basic human rights and freedoms of persons with disabilities include: the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the Protocol of San Salvador, the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women and the Inter-American Convention to Prevent and Punish Torture. While these regional and international pieces of legislation touch on the rights of disabled persons, the international convention that most directly and expansively addresses the rights of disabled individuals is the Convention on the Rights of Disabled Persons. (CRPD)

The United Nation’s CRPD has built upon pre-existing legal protections for the basic human rights of disabled persons and also set some precedents. The 32-page Convention was approved by the UN General Assembly in December of 2006 and when into force May of 2008 after 20 member-countries ratified it. The CRPD aims to end discrimination and exclusion for the world’s 650 million people with mental and physical disabilities. Unlike many nation-level laws that address the rights of disabled persons, such as the United States’ Americans with Disabilities Act (ADA), the CRPD goes beyond non-discrimination. It also explicitly sets norms and obligations for raising awareness, access to legal justice, freedom from violence, right to information, right to respect for home and family and disabled persons’ right to health. It categorizes right-holders into specific groups, including the vulnerable groups of disabled children and women. It also talks about the human rights of disabled persons in different and particular contexts, such as humanitarian emergencies. Overall, the CRPD represents a comprehensive approach to the basic human rights of disabled persons and a blueprint for creating equality and accessibility for all disabled persons so that they can live just as all others and not as some ignored members of society who are simply seen as charity cases that need a medical cure.

National-level Legislation of Rights of Disabled Persons: United States

The United States currently has nine pieces of legislation, each of which is discussed below, that cover rights of persons with disabilities. Additionally, the United States has ratified the ICCPR and so is legally bound to the sections of the international convention that protect the basic human rights of persons with disabilities.

1) Americans with Disabilities Act:

This legislation focuses on the discrimination. It “prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation and telecommunications. It also applies to the US Congress”.

2) Fair Housing Act

Prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. Other covered activities include for example, financing, zoning practices, new construction design and advertising. The Fair Housing act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. The Act further requires that new multifamily housing with four or more units be designed and build to allow access for persons with disabilities. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver and other adaptable features within the units.

3) Individuals with Disabilities Education Act (IDEA)

Requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs. IDEA requires public school systems to develop appropriate individualized education programs (IEPs) for each child and mandates that particular procedures be followed in the development of the IEP.

4) 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. Section 504 specifically states “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service”. Section 508 requires Federal electronic and information technology be accessible to people with disabilities, including employees and members of the public.

5) Architectural Barriers Act

Requires that building and facilities that are designed, constructed, or altered with Federal funds, or leased by a Federal agency, comply with Federal standards for physical accessibility.

6) Civil Rights of Institutionalized Persons Act

Authorizes the US Attorney General to investigate conditions of confinement at State and local government institutions such as prisons, jails, pretrial detention centers, juvenile correctional facilities, publicly operated nursing homes, and institutions for people with psychiatric or developmental disabilities.

7) National Voter Registration Act

One Basic purpose of this act is to increase the historically low registration rate of minorities and person with disabilities that have resulted from discrimination.

8) Air Carrier Access Act

Prohibits discrimination in air transportation by domestic and foreign air carriers against qualified individuals with physical or mental impairments.

9) Voting Accessibility for the Elderly and Handicapped Act

Generally requires polling places across the US to be physically accessible to people with disabilities for federal elections[9]

[1] Under the American Disabilities Act, an individual with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment or a person who is perceived by others as having such an impairment.

[2] Vasquez, J., Human Rights and Health: Persons with Disabilities, PAHO, 2008

[3] 21 RI World Congress Quebec City, Rehabitation International, Presentation by Marca Bristo, 2008

[4] Vasquez, J., Human Rights and Health: Persons with Disabilities, PAHO, 2008

[5] Vasquez, J., Human Rights and Health: Persons with Disabilities, PAHO, 2008

[6] Lederer, E., US Signs Disabled Rights Treaty, Associated Press, July 30,2009

[7] Washington Law School/PAHO Conference on Health and Human Rights. The explanation of the three different models to approach human rights of disabled persons were learned at a joint conference between American University Law School and Pan American Health Organization (PAHO), in March of 2012

[8] Washington Law School/PAHO Conference on Health and Human Rights. The explanation of the three different models to approach human rights of disabled persons were learned at a joint conference between American University Law School and Pan American Health Organization (PAHO), in March of 2012

[9] All these laws summarized in 1 through 9 can be found at www.ada.gov/cguide.htm