Disability discrimination consultation – social or medical?

The consultation on the disability part of Jersey’s discrimination law is coming to a close and there has been a lot of talk about social and medical models of disability in the consultation meetings Liberate has been in.

Jersey has taken an interesting path when it comes to the drafting of the disability part of the discrimination legislation. There has been a serious attempt to draft legislation that reflects a social model of disability, i.e. instead  of  focusing  on  the  medical effect of the impairment, it focuses on the way that the individual interacts with barriers that hinder their full participation in society. It is not entirely convincing that the draft legislation succeeds in this.

The de-medicalisation of disabled people and their lives is a desirable and laudable goal. However, the social model is not without its problems including –

  • Removing the concept of impairment denies that disabled people have a difference and that they are disabled by that difference as much as by social barriers – it is the interaction of the body and social barriers that causes the disability;
  • The barrier-free environment (ideally, created by anti-discrimination legislation) is a myth. It is true that some social barriers may be removed, e.g. ramps instead of stairs for wheelchair users.  However, it is impossible to remove all the obstacles to people with impairment because some of them are inextricable aspects of the impairment, e.g. there are no social barriers that can be removed for someone with an impairment that causes constant pain;
  • In order to manage disability, people with an impairment have to see themselves as disabled. Many people with impairments reject the identity of ‘disabled person’. Social barriers for one disabled individual are not social barriers for another, even if the impairment is the same. Every individual will be different.

(see ‘The social model of disability: an outdated ideology?’, Shakespeare, 2002)

The conclusion of this train of thought is that a mixture of social and medical models might more properly recognise impairment and barriers working together to produce disadvantage. In this, Jersey’s draft law succeeds, in as much as the new paragraph 8 defines disability medically and the new Article 7A acknowledges the social barriers that need to be removed through the process of reasonable adjustment.

Employers in the sessions we attended tended to want more clarity over whether an employee or customer would be considered disabled, i.e. favouring a medical model. To be fair to most of the businesses we met, this is in order to do the right thing and make the reasonable adjustments that the disabled person needs to function equally in society.

The reaction from others with an interest in the draft law in the sessions we attended has been mixed. Some favour the social model as moving the emphasis off the impairment of the disabled person to the barrier to equality that society creates. Others worry about the lack of clarity over who is disabled and therefore ‘qualifies’ for reasonable adjustments to be requested. Their concern is that, to answer this question, they would need to ask it of the Tribunal, which could see a rise in case numbers and places the burden of bringing a case on the shoulders of the disabled person.

It will be interesting to see what the results of the consultation bring in terms of a final draft of the law.

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