Claiming Disability

Abstract

We stand at the cusp of a potentially transformative moment for disability rights. For decades, the disability rights movement has been burdened by a profound obstacle: many of its potential constituents do not self-identify as disabled. Disability has long been constructed around a social welfare–law model: as quintessentially associated with intrinsic limitation and especially an inability to work. Although disability civil rights law includes no such requirement, it has not yet transformed entrenched colloquial understandings. As such, many people who qualify as disabled under contemporary civil rights law do not self-identify in that way.

But numerous factors make this a uniquely opportune moment to transform this state of affairs. The Americans with Disabilities Act Amendments Act (“ADAAA”), enacted in 2008, has, for the first time, provided a definition of disability that is broad, inclusive, and untethered to functional limitation. So too, the advent of social media and the growth of both disability pride and disability positivity all hold promise for encouraging a mass movement of disability identity. If only a fraction of those who qualify as disabled under the ADAAA were to “claim disability” and embrace a disabled identity, millions of Americans would self-identify as disabled for the first time.

Such “claiming” of disability has the potential to be transformational for disability rights. As scholars have long observed, the disability movement has struggled to dislodge bias against people with disabilities, even as the law has formally afforded them rights. Even in a time where bias against other stigmatized groups has rapidly decreased, disability bias has remained substantially unyielding. This Article suggests that “claiming disability” holds the potential to radically disrupt this state of affairs by vastly expanding the opportunities for known contact with people with disabilities and by increasing the self-perceived constituents of disability rights.

In addition to its benefits for disability rights as a whole, this Article argues that claiming disability may also be individually transformational. For too many people, the experience of physical or mental health impairment is one of enforced silence, closeting and covering, hiding pain and difficulty, and not taking pride in identity. So too, it is too often the case that societal tropes of deficiency and limitation associated with impairment can be internalized in the absence of a positive disability frame. Claiming disability identity thus holds the potential to offer a liberatory alternative to the current experience of impairment, even as it paves the way for broader transformations in disability rights.

Keywords: Disability Law, Disability Identity, Anti-Discrimination Law, Social Movements