Lighting Up the Law In Blue: Advocacy, Autistic Rights, and A Month in Review

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

The impact autism has had on different areas of the law thus far is only the tip of the iceberg. As the numbers of autistic individuals in the U.S. continues to increase, this growth will likely prompt more change across the legal system. In all areas of the law impacted by autism, though, it should be noted that “the legal reforms prompted by the autism movement have been by necessity grafted onto preexisting patterns of inequality in the distribution of legal, social, educational, and medical services.” Autism in the US

The provision of special education services to children with autism remains structurally unequal, and such inequality is largely influenced by a child’s family income and his or her race. Access to health care and what treatments are deemed effective, though legislatively decided in a few states, is still largely dependent on ad hoc administrative determinations of the habilitive or rehabilitive nature of a particular treatment and whether the entity making such determination views autism as a condition from which one may recover.   “The case law on [disability discrimination] claims brought by employees with autism against their employers is still sparse, but it already reveals discursive divides that will only grow wider and deeper.” Autism in the US

The presently existing divides and the course of future law and policy surrounding autism will necessarily be impacted by the cure and neurodiversity viewpoints, as previously discussed here. At the core of the divide between these two viewpoints is how each side defines disability, a term which has, historically, carried with it derogatory connotations. “Although impairments may be inevitable, disability is contingent. Disability is the interaction between a person’s impairment and the person’s environment-it is the negative treatment that a person experiences based on the person’s impairment.” Gray Matters.

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The cure viewpoint sees disability as a medically based functional deficit in the person’s ability as a result of their autism. Because of this view, the cure side of the debate advocates dependence on charity, medical intervention, and rehabilitive therapies, and argues for societal accommodations to allow autistic persons full participation in American society. However, this view also carries with it the implication that autistic persons are somehow “less than normal” and results in stigmatization of all autistic people in this fashion, regardless of their level of actual functionality. Gray Matters.

The neurodiversity viewpoint, on the other hand, sees disability as a social construct under which the impairments imposed upon autistic people by their condition are a result of being square pegs in a world full of round holes, so to speak. Medical, pharmacological, and rehabilitive treatments supported by the cure viewpoint are often regarded “as unethical, stigmatizing, and inconsistent with autistic autonomy” by neurodiversity advocates who support “services and other structural changes that help autistic people better navigate a neurotypical world.” Gray Matters.

Despite the differences between these two viewpoints, both the cure and neurodiversity movements acknowledge that autism, as a disability, places those individuals who have the condition at a disadvantage in society. Neither viewpoint has advocated strong policy goals beyond those intended to increase availability of and access to services to improve the lives of autistic persons, though the focus of those services is influenced by the viewpoint advocating the same, with the cure viewpoint focusing on adapting the individual autistic person’s behavior to fit society and the neurodiversity viewpoint focusing on adapting society to accommodate autistic people and teaching autistic people to deal with the neurotypical world where such changes are not feasible.

[box] “[P]ure economic logic is central to the [autism advocacy] movement in at least four ways.

First, there is much emphasis on the fact that autism is expensive, because it saps the strength of adult caregivers and generates long-term burdens on society. Finding ways to cure it or alleviate its symptoms is advertised as a cost-saving proposition.

Second, autism is often perceived as the unavoidable flip-side of the precious coin of genius. The force of this positive message is astonishing in fund raising and political activism. If society has a chance to gain remarkably from children with autistic traits, then early therapy is an investment in the interest of progress and civilization.

Third, because there is no known way to prevent autism and because of its epidemic dimensions, subsidizing autism-related research and other public expenditures can be seen as a mechanism of insurance, one that would be deemed legitimate even by libertarian policy makers.

Fourth, the mystery of autism is most attractive to the analytical mind. Autism offers neuroscientists unprecedented insights, based on the scientific intuition, now widely popularized, that deviations from the biological norm can teach us much about the norm itself. Given that emotions, empathy, and communication are so different in autistic individuals, perhaps autism research can lead to identifying the genetic bases of feelings and relations.” Autism in the US [/box]

In recent years, much advocacy has focused on the civil rights of autistic persons. “When a social movement embraces the rhetoric of civil rights, or when, in Janet Halley’s words, a movement starts to rely on “race-like arguments,” issues of identity are bound to arise. Autism can be and has been defined as a closed class – a finite set of human beings possessing immutable characteristics.” Autism in the US While the increasing numbers of autistic persons in the U.S. coupled with effective advocacy could strengthen the claim to equality in society for autistic persons, there is a downside to this type of advocacy also. “Campaigning in the name of a group brings the group to life as a “discrete and insular” entity. Activism creates difference at the same time as it calls for sameness at law.” Autism in the US This dichotomy and the characterization of autism as something which is necessarily negative runs counter to the goals of the neurodiversity viewpoint, which considers autism as a different way of experiencing the world that is not necessarily positive or negative.

Such civil rights advocacy refers to Equal Protection, as guaranteed by the fourteenth amendment to the U.S. Constitution. For a group of people to be defined as a “suspect class” under Equal Protection jurisprudence that group must be sufficiently analogous to the freed slaves following the Civil War. Thus far, the Supreme Court has recognized suspect classes based on the characteristics of race, national origin, and illegal alien status. This means that these suspect classes, as a group, possess the following features:

[box] (1) They share an immutable characteristic – that is, a characteristic they were born with or had no control over acquiring which they cannot change.

(2) This shared characteristic is invidious, or has a history of discrimination and stigmatization under which the characteristic has been viewed as a mark of disgrace.

(3) As a group, those who possess this characteristic are insular, or isolated, from the rest of society.

(4) As a group, those who possess this characteristic are impotent, or share an inability to protect themselves through the ordinary political process. [/box]

From an academic perspective, it is not difficult to imagine that autistic persons could be characterized as a suspect class under this analysis. Research demonstrates that autism is, at least in part, an inherited disorder largely rooted in genetics. Therefore, autism is an immutable characteristic. Autistic persons have historically suffered discrimination and the condition has been negatively viewed by society, thus the characteristic of being autistic is invidious. By the very nature of autism’s symptoms, particularly communication difficulties and social challenges, autistic people are insular, or isolated from the rest of society. Further, the difficulty faced by autistic persons in communicating and interpersonal interactions could easily be viewed as making the group, as a whole, impotent or unable to protect themselves through the ordinary political process.

However, many autism advocates, particularly those of the neurodiversity viewpoint, would object to such a classification. “In a way that closely resembles the plea of deaf-culture advocates, self-identified bearers of autism spectrum disorders demand acceptance and even admiration for autism’s most appealing traits, which range from savant-like musicality to a philosophical detachment from most mundane matters. The relation between the movement’s large core and this relatively young neuro diversity group is uncomfortable. It is now generally accepted that it is important to let persons with disabilities speak with their own voice.” Autism in the US In the coming years, it will be interesting to track developments in law and policy as scientists unravel the biological mechanisms underlying autism and autistic persons increasingly speak publicly with their own voices.

autism-blue Lighting Up the Law In Blue: Advocacy, Autistic Rights, and A Month in Review

Over the month of April, we have been Lighting up the Law in Blue by blogging about several areas of the law and how the law affects, and is affected by, those with autism. Links to our full month of Autism Awareness posts are below.

Lighting up the Law in Blue

Lighting Up the Law in Blue: A Primer on the Autism Spectrum

Lighting up the Law in Blue: Why Awareness Matters

Lighting Up Education Law In Blue, Part 1

Lighting Up Education Law in Blue, Part 2

Lighting Up Family Law in Blue: Impact of Autism on the Family and Family Courts

Lighting Up Family Law in Blue: Competing Views and the Best Interest of the Child

Lighting Up Tort Law In Blue: Autism, Disability, and Foreseeability in Negligence Actions

Lighting Up Criminal Law in Blue: Autism, Excuse, and the Guilty Mind

Lighting Up Law Practice In Blue: The Autistic Client

Lighting Up the Law In Blue: Advocacy, Autistic Rights, and A Month in Review


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   Join us as we Light Up the Law In Blue.


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