- Mark Hatfield, ‘The War Against Disease and Disability’ (1995) 274.13 The Journal of the American Medical Association 1077.
- Owen Wrigley, The Politics of Deafness, Washington D.C: Gallaudet University Press, 1996, 95.
- I am using ontology not in an essentialist sense, but rather to denote ways of being that are inscribed, fabricated and shifting.
- I write this piece, from the standpoint of living with a body marked as ‘physically’ disabled. More importantly, I reject an ‘ableist voice’ and speak otherwise by adopting a non-hegemonic, counter-strategic, non-essentialised ‘disablised’ voice.
- The dynamic of morphing creates an illusion (appearance) of the ‘disabled’ body transmogrifying into the ‘normal’ resulting in a bodily re-composition and re-formation of subjectivity. This usually occurs through the engagement of technological practices that mimic what is understood to be ‘able-bodied’ or ‘normalcy’. The morphing aspect refers to those elements of technological practice or application that give the appearance of bodily wholeness. For instance, amputee = lack: returned to able-bodied status = normal by way of hand transplant or prosthesis.
- Ableism—a network of beliefs, processes and practices that produce a particular kind of self and body (the corporeal standard) that is projected as the perfect, species-typical and therefore essential and fully human. Disability then becomes a diminished state of being human.
- My own formulation of the ‘disablised body’ is closely aligned with that of Rosemary Garland Thomson who argues that ‘disability is a reading of bodily particularities in the context of social power relations… [an] attribution of corporeal deviance—not so much a property of bodies as a product of cultural rules about what bodies should be or do’. Rosemary Garland Thomson, Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature, New York: Columbia University Press, 1997, 6.
- For a concise ‘history’ refer to Fiona Campbell, “Refleshingly Disabled’: Interrogations into the Corporeality of Disablised ‘Bodies' (1999) 12 Australian Feminist Law Journal 57–80. Also refer to the Disability Social History Project http://www.disabilityhistory.oig and the report Disability Rights Advocates, ‘Forgotten Crimes: the Holocaust and People with Disabilities,’ Disability Rights Advocates, 1999.
- Ruth Hubbard, ‘Abortion & Disability: Who Should and Who Should not Inhabit the World’ in Lennard Davis (ed.) The Disability Studies Reader, New York: Routledge, 1997, 187–200, 199.
- ‘Negative’ in the sense of preventing the reproduction of categories of persons deemed ‘unfit’ or ‘undesirable’.
- C.f. Robert Proctor, Racial Hygiene: Medical under the Nazis, Cambridge, Mass: 1988, ‘Handicap’, U.S. Holocaust Memorial Museum Pamphlet, http://www.holocaust-trc.org/hndcp.htm
- Robert Proctor, ‘The Destruction of ‘Lives Not Worth Living’” in Jennifer Terry and Jacqueline Urla (eds.). Deviant Bodies: Critical Perspectives on Difference in Science and Popular Culture, Bloomington: Indiana University Press, 1995 170–196, 171.
- It is beyond the parameters of this paper to discussion the concept of ‘freedom’ in any detail. I refer readers to Nikolas Rose's recent work, Nikolas Rose, Powers of Freedom: Reframing Political Thought, London: Cambridge University Press, 1999.
- A term coined by Kathy Black, A Healing Homiletic: Preaching and Disability, Nashville, TN: Abingdon Press, 1996 to describe the role of ‘market forces' in shaping predictable outcomes under the guise of consumerism and choice.
- I will however argue later that the elements that inform that risk assessment are profoundly coercive—where any transgressions from the imperatives of ableist normativity incur a (legal, financial and moral) penalty.
- A compulsion towards favoured human characteristics, what I term ableist normativity. This concept is quite fluid, with increasing emphasis on enhancing characteristics.
- I have borrowed Owen Wrigley s terminology of ‘outlaw ontology’. Owen Wrigley, The Politics of Deafness, above n2.
- Michael Oliver, Understanding Disability: From Theory to Practice, Basingstoke: Macmillan, 1996, 32.
- Michel Foucault, The Order of Things. An Archaeology of the Human Sciences, New York: Vintage, 1994 orig. 1970, 326.
- For follow up consult Disability Rights Advocates, ‘Forgotten Crimes’, above n8; Hugh Gregory Gallagher, ‘Slapping Up Spastics’: The Persistence of Social Attitudes Toward People with Disabilities' (1995) 10:4 Issues in Law and Medicine 401–414; Mark Sherry, ‘Hate Crimes Against People with Disabilities, Women with Disabilities Australia’, Online at http://www.wwd.org.au/hate.htm
- To my knowledge it is not a crime in Australia, at the Federal or State levels to incite disability hatred. There is no equivalent to racial vilification legislation.
- Ruth Colker, ‘The Americans with Disabilities Act: A Windfall for Defendants’ (1999) 34.1 Harvard Civil Rights-Civil Liberties Law Review 99–162 documents the kind of disability panic that has provoked media backlash against the American with Disabilities Act 1990.
- We can figure the division in terms of difference over procedure and parameters, however I argue that the sub-text of the dispute is always ontological.
- Tom Shakespeare, ‘Choices and rights: Eugenics, Genetics and Disability Equality’ (1998) 13.5 Disability & Society 665–681, 674.
- D-ko, cited in Osamu Nagase, ‘Difference, Equality and Disabled People: Disability Rights and Disability Culture,’ Master of Arts in Politics of Alternative Development Strategies, Institute of Social Studies, Online at http://itass01.shinshu-u.ac.jp/tateiwa/0w/no01/1995.htm, 1995
- A ‘post-quadriplegic’ woman, cited in Fiona Campbell, ‘The Disablised” Body: An Inquiry into the Corporeality of Disability”, and Social Role Valorisation Theory, ‘Honours Thesis, School of Law & Legal Studies, La Trobe University, 1998.
- Harlan Lane, The Mask of Benevolence: Disabling the Deaf Community, New York: Alfred Knopf, 1992, 234.
- The sovereign self/benchmark body of ableism expresses the virtues of masculinity, rationality, autonomy and detachment; a corporeal standard that coincides with the interests of white, middle class, heterosexual ableist men. Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession, Melbourne: Oxford University Press, 1996, 2.
- Erik Parens and Adrienne Asch, ‘The Disability Rights Critique of Prenatal Testing: Reflections and Recommendations’ (1999) 29.5 Special Supplement, Hastings Centre Report S1–S22.
- Conjoined twins seem to elicit this kind of startled shock. Kenneth Miller after interviewing Abby and Britty Hensel describes the twin's existence as mind-boggling and adds that the greater paradox is that the girls “… were happy, outgoing, well-adjusted kids’. Kenneth Miller, “Two's Company,’ Who Weekly 1998: 24–30
- Veivers v Connolly (1995) 2 QdR 326.
- The quotations are extracted from Jennifer Fitzgerald, ‘Selective Abortion and Wrongful Birth in Queensland: Vievers v Connolly’ (1995) 25.2 Queensland Law Society Journal 189–197
- McKay v Essex Area Heath Authority (1982) 1 QB 1166
- Ibid per Stephenson LJ at 1181. In an earlier version of this paper I considered the matter of the eradication of disability before birth and the use of wrongful birth and life torts to reinforce a negative ontology of disability.
- James Cherney, ‘Deaf Culture and the Cochlear Implant debate: Cyborg politics and the identity of people with disabilities’ (1999) 36 Summer 1 Argumentation and Advocacy 22—34; Tom Shakespeare, Choices & Rights, above n24.
- Gerry Maguire and Ellen McGee, ‘Implantable Brain Chips? Time for Debate’ (1999) 29.1 Hastings Center Report 7–13, 11.
- Donna Haraway, Modest_Witness@Second_Millennium.FemaleMan_Meets_OncoMouse, New York: Routledge, 1997, 41.
- Michel Foucault, ‘Technologies of the Self’ in Paul Rabinow (ed.) Michel Foucault Ethics: Subjectivity and Truth, Vol 1 London: Allen Lane/The Penguin Press, 1997, 223–251, 225.
- Chris Hables Gray,(ed.), Cyborgology: Constructing the Knowledge of Cybernetic Organisms, New York: Routledge, 1995.
- Such ‘perfections' maybe longitudinally offer great ‘potential’; ‘potentiality’, however being mitigated by ongoing technological developments.
- Richard Hindmarsh, Geoffrey Lawrence, and Janet Norton, ‘Bio-Utopia: the Way Forward?’ in Richard Hindmarsh, Geoffrey Lawrence, and Janet Norton (eds.), Altered Genes Reconstructing Nature: The Debate, St Leonards: Allen & Unwin, 1998 3–23,5.
- Lee Silver cited in John Horgan, The Undiscovered Mind: How the Human Brain Defies Replications, Medication and Explanation New York: The Free Press, 1999, 161.
- Extropianism is described as a transhuman philosophy, which seeks to challenge our ideas about human limits, and desires to improve the future. For a less ‘offbeat’ mainstreamed stance, based on Utilitarianism refer to the work Peter Singer, Rethinking Life & Death: The Collapse of our Traditional Ethics, New York: St. Martin's Press, 1995.
- An expression coined by Evelyn Fox Keller, ‘Nature, Nurture, and the Human Genome Project’ in Daniel Kevles and Leroy Hood (eds.), The Code of Codes, Cambridge, Mass: Harvard University Press, 1992.
- The Australian Federal liberal government's social security philosophy of ‘mutual obligation’ comes to mind.
- For a strongly pro-eugenicist paper based firmly on economic arguments a paper by Edward Miller, ‘Eugenics: Economics for the Long Run’ in Steven Peterson and Al Somit (eds.), Research in Biopolitics, Vol 5 Greenwich, Connecticut: JAI Press, 1997 391–416. Also online at http://www.eugenics.net/papers/miller1.html is worth consulting.
- Tom Shakespeare makes this distinction to delineate more coercive eugenist practices. He argues that (at least in the UK) the shift to an increasingly cost-benefit analysis in genetic screening may signal a move to a ‘strong eugenics' approach. Tom Shakespeare, Choices & Rights, above n24.
- Anita Silvers, ‘A Fatal Attraction to Normalizing: Treating Disabilities as Deviations from ‘Species-Typical’ Functioning’ in Erik Parens (ed.), Enhancing Human Traits, Washington D.C.: Georgetown University Press, 1998 95–123, 100.
- Alex Chislenko's paper ‘Technology as an extension of Human Functional Architecture’, Extropy Online Extropy Institute, 1997, (http://www.extropy.org/eo/articles/techuman.htm) identifies two clusters of ‘perfecting’ technologies, the corporeal positioning (Enhancements—based on their positions relative to the body and functionality) and the extended functionality groups.
- Donna Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, New York: Routledge, 1991, 163.
- Ibid, 212.
- Melinda Jones and Lee Ann Basser Marks, ‘Approaching Law and Disability’ (2000) 17.2 Law In Context (Special Issue) 1–7,3.
- Robert Carver, 'Cochlear Implants in Prclingual Deaf Children: A Deaf Perspective', Deaf World Web, 1990, Online at http://dww.deafworldweb.org/pub/c/rjc/cicarver.html.
- Elizabeth Key, ‘Voluntary Disabilities and the ADA: A Reasonable Interpretation of’ Reasonable Accommodation” (1996) 48:1 Hastings Law Journal 75–104, 75.
- Ibid, 84
- Americans with Disabilities Act 1990.
- Elizabeth Key, Voluntary Disabilities, above n54, 96.
- Bonnie Tucker, ‘Deaf Culture, Cochlear Implants, and Elective Disability’ (1998) 28.4 Hastings Centre Report 6–14
- Ibid, 10.
- Maybe those rendered ineligible either because of the use/or refusal of technologies fall into the category of being ‘supra-disabled’?
- Both Gerry Maguire & Ellen McGee, Implantable Brain Chips? above n36 and David Suzuki, ‘Introduction: A Geneticist's reflections on the new genetics’ in Richard Hindmarsh, Geoffrey Lawrence, and Janet Norton (eds.), Altered Genes Reconstructing nature: The Debate, St Leonards: Allen & Unwin, 1998 xiv–xx problematise the notion of ‘safe’ technologies, which may result in new ‘illness/disability’. The case of Clint Hallam who recently underwent a radical limb transplant highlights the violence of the quest for normalcy. According to one perspective ‘… Hallam was previously a well man [with amputation] and now, under the influence of immuno suppressive drugs, [needed to keep the ‘new’ limb viable] is a sick man’. David Concar, ‘Hands today, faces tomorrow,’ New Scientist 1998; Justine Ferrari, “Hands—on Experience’,’ The Weekend Australian 17–18 October 1998: 28–29; Christine Middap. ‘Hand of Fate,’ The Courier-Mail (QLD) 2000, 31. Likewise the installation of a cochlear implant is invasive, requiring regular adjustment often obliterating any residual hearing the recipient might have through permanent ear damage. See James Cherney, Deaf Culture and the Cochlear Implant Debate, above n35.
- I have not explored Australian legislation such as the Disability Discrimination Act 1992 (Cth) for two reasons. Firstly, it is a reasonable premise to suggest that disability debates in the US have a ‘kick-on’ effect in the shaping of Australian policy and law reform. That is not to suggest a conflation between the US and Australia, rather US activities have a persuasive influence. Secondly, I argue that current debates over the ‘meaning’ of ‘disability’ in US law enable a significant level of ontological transparency.
- ADA, s 12102(2).
- Bragdon V Abbott 524 US 624, (1998); 118 SCt 2196; 141 LEd. 2d 540.
- Space precludes me from teasing out the notion of ‘mitigation’. However I am struck by its relational and comparative quality. The dictionary definition points to an aspect of the word that denotes ‘make milder in manner or attitude, make less hostile or mollify.” The New Shorter Oxford English Dictionary, 5th Ed. 1993, 1797.
- Known as the ‘mitigation of disability cases' the parameters of defining ‘disability’ under the ADA have been realigned, in respect to ‘corrective measures' to mitigate ‘disabling conditions’: Sutton v United Airlines Inc, 527 US 471 (1999); 119 SCt 2139; Murphy v United Parcel Service, 527 US 516 (1999); 119 SCt 2133; Albertson's Inc v Kirkingburg, 527 US 555 (1999); 119 SCt 2162. I would argue in addition that the ‘disability’ concept is already occluded—as prong of the definition is tied to the notion of substantially limiting a major life activity’. s3 (2)(a) of the ADA.
- Sutton V United Airlines, Inc., 527 US 471 (1999); 119 SCt. 2139 (1999). The other two cases ostensibly followed the reasoning in Sutton.
- Ibid, (1999) 119 SCt 2139 per O'Connor J at 2146–47.
- Ibid, at 2146.
- Jerome Bickenbach, Physical Disability and Social Policy, Toronto: University of Toronto Press, 1993, 94.
- Sutton, above n67, at 2149.
- Margaret Thornton, ‘Neo-liberalism, Discrimination and the Politics of Ressentiment’ (2000) 17.2 Law in Context Special Issue 8–27, 19.
- Finical v Collection Unlimited 65 FSupp 2d 1032 (1999); 16 NDLR 107 (1999); US DistLEXIS 13080.
- It is beyond the parameters of this paper to explore matters related to cyborghood, the post-human and ‘disability’. That is the subject of another paper and my ongoing research.
Australian Feminist Law Journal
Volume 14, 2000 - Issue 1