Unequal Brains: Disability Discrimination Laws and Children with Challenging Behaviour

Abstract

At a time when brain-based explanations of behaviour are proliferating, how will law respond to the badly behaved child? In Australia, children and youth with challenging behaviours such as aggression, swearing or impulsivity are increasingly understood as having a behavioural disability and so may be afforded the protections of discrimination law. A brain-based approach to challenging behaviour also offers a seemingly neutral framework that de-stigmatises a child’s ‘bad’ behaviour, making it a biological or medical issue rather than a failure of discipline or temperament.

Yet this ‘brain-based’ framework is not as neutral as it appears. How law regulates the brain-based subject in the form of the badly-behaved child depends on how law conceptualises the brain. This paper examines two competing approaches to the brain in law: a structural, deterministic model and a ‘plastic’, flexible model. Each of these impacts differently on disabled and abled identity and consequently on discrimination law and equality rights. Using examples from Australian discrimination law, this paper argues that as new brain-based models of identity develop, existing inequalities based on race, gender and disability are imported, and new forms of stigma emerge. In the neurological age, not all brains are created equal.

Keywords: Discrimination Law, Disability, Children, Neuroscience, Behaviour