The Broad Uses of Disability Rights Protections

Disability legal protections are similarly flexible. When the Supreme Court issued a series of opinions restricting the definition of disability, leaving many people with less obvious impairments out of the scope of nondiscrimination law, advocates convinced Congress to pass the A.D.A. Amendments Act of 2008. The law ensured the A.D…’s definition of disability was interpreted broadly.

There are other examples to build on. Laws like the Family and Medical Leave Act (F.M.L.A.) and HIPAA’s privacy protections (under the Health Insurance Portability and Accountability Act) overwhelmingly benefit disabled people — but because they create rights available to all, they are thought of as universal, not targeted, protections. Similarly, the Affordable Care Act’s prohibition on insurers charging more to those with pre-existing conditions represented one of the greatest disability policy achievements in a generation. Yet few saw it as a gift only for the disabled because proponents sold it to the public as a universal benefit that helped everyone.

Not every disability policy priority can be recast in such universalist terms. Sign language interpreters or supported employment services could never be replaced by broad and diffuse benefits spread across the entire population. Relatively few people need these things, and those that do need them to be financed with a level of resources far above what others get. In such cases, the framing of an oppressed minority group is useful. Even if the disability movement is to expand beyond identity politics, it won’t be able to leave them entirely behind. The prism of identity remains essential for many whose disability experiences are defining.

Still, the disability rights movement could position many other disability priorities as public goods, akin to clean air or privacy rights. Laws like the A.D.A. would still serve as a backstop for the minority that identifies as disabled, but could also come to be seen as useful protections for a larger public, much like HIPAA or F.M.L.A.

One can imagine future disability advocacy proceeding on two tracks. A small vanguard of “loud and proud” activists, motivated by disability culture and the discursive claims of identity politics, can mobilize to secure new laws and public programs. Meanwhile, these initial policy victories will be defended and grown because of their concrete impact on the lives of the far larger group of people who benefit from disability protections even without identity. Reaching the latter group will require activists to highlight “bread and butter” issues the public can easily understand. Keeping students safe from a deadly pandemic, guaranteeing rights to pregnant workers, and helping seniors stay in their own homes all seem like good places to start.

The Biden administration’s leveraging of disability law is a welcome effort to protect the rights of disabled students in a pandemic. But it is also more — it suggests a complex future for disability politics, where disability laws may come to be seen as both the liberation of a discrete minority group and a broad protection that benefits all regardless of self-identification. Such a change will present a challenge to a disability rights movement used to an exclusively “minority group” model of activism — but also a tremendous opportunity to make disability rights relevant to an American public that already receives so much from it.


Ari Ne’eman (@aneeman) is a doctoral candidate in Health Policy at Harvard and a visiting scholar at the Lurie Institute for Disability Policy at Brandeis. He is currently working on a book on the history of American disability advocacy.

Now in print: “About Us: Essays From the Disability Series of The New York Times,” edited by Peter Catapano and Rosemarie Garland-Thomson.

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