Discrimination Out of Dismissiveness: The Example of Infertility

45 Pages Posted: 15 Mar 2009 Last revised: 18 Feb 2012

See all articles by David Orentlicher

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: March 14, 2009

Abstract

In recent years, anti-discrimination theory and doctrine have rested heavily on the anti-caste principle first enunciated in Strauder v. West Virginia. According to this principle, equal protection law and anti-discrimination statutes should eradicate public - and private - policies that subject some persons to ongoing stigma and subordination and therefore to second-class status in society.

This article argues that while a focus on stigma and subordination is important, it misses a key source of discrimination - the discrimination that arises from dismissiveness. Anti-discrimination law has recognized the need to overcome the discrimination that results from invidious bias, unfair stereotyping, irrational fear, accumulated myths, or simple neglect. All of these forms of discrimination reflect situations in which society disfavors people because of traits or conditions that are unpopular. Yet it is important to recognize as well that discrimination can - and does - occur when majorities dismiss the impact that a person's differences can have and disfavor people because of traits or conditions that are not unpopular. Indeed, the trait or condition may even be viewed as desirable by others, even though it is viewed as undesirable by many of those who have the trait or condition.

This article illustrates discrimination from dismissiveness with the example of infertility. Infertile men and women suffer from one or another physical abnormality of their reproductive capacity, and they experience high levels of psychological distress. By standard measures, infertility is a disability.

Yet despite the level of suffering and the presence of a real bodily dysfunction, many policymakers and scholars do not treat infertility as a disability. Although infertile persons may be deprived of the opportunity to procreate, such a deprivation, it is argued, is the loss of a lifestyle option. Infertile persons still can carry on their lives at work or at play at normal levels, with no reduction in functioning.

This article traces the evolution in views about fertility and reproduction in Western society and demonstrates how changes in perspective about the value of reproduction can turn infertility from an obvious disability into a condition that may be viewed by many as non-disabling. To protect the interests of persons with infertility and anyone else who might be subject to discrimination on the basis of dismissiveness, it is critical to ensure that public policy recognizes the possibility of discrimination from dismissiveness as it shapes anti-discrimination theory and doctrine.

Keywords: disability, discrimination, infertility

JEL Classification: I12, K32

Suggested Citation

Orentlicher, David, Discrimination Out of Dismissiveness: The Example of Infertility (March 14, 2009). 85 Indiana Law Journal, Vol. 85, p. 143, 2009. Available at SSRN: https://ssrn.com/abstract=1359417

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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