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Gender, Disability and Decision-Making: Historical Discrimination
Abstract
Chapter 1 laid out the history and definition of the human right to legal capacity—including the specification that it encompasses both legal personhood and agency. This definition laid the foundation for the application of the right throughout this book. Chapter 2 focused on the theoretical underpinnings of personhood; how it has traditionally excluded women, disabled women, and gender minorities; and how insights from critical feminist, disability, and queer theory provide the potential for a new understanding of personhood that may facilitate the realisation of the right to legal personhood—as part of the right to legal capacity—for women, disabled women, and gender minorities.
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In addition to labeling people as mentally ill, the law often labels them as incompetent to exercise certain rights or to play particular roles. Indeed, under the broad dicta of Zinermon v. Burch, incompetency labeling may increase dramatically. This article uses principles of social and cognitive psychology to examine the effects of incompetency labeling. Such labeling is shown to produce potentially serious adverse effects. It often alters the way others view and react to the labeled individual and affects his or her self-esteem and self-concept in ways that may inhibit performance, diminish motivation, and depress mood. After analyzing those negative side effects of incompetency labeling, the article examines the implications of these findings for mental health law and makes a number of proposals for changing the law in order to avoid or minimize these adverse effects.
This paper analyzes the recent reform regarding the legal capacity of persons with disabilities in Peru. It provides a domestic legal and judicial context in which the reform was adopted. Following this, the paper aims to analyze the reform’s conformity with article 12 of the Convention on the rights of persons with disabilities, noting that the current regulation is only partially CRPD compliant. The current design of judicially designated supporters can be understood as valid under specific interpretations of Article 12, while the design of safeguards does not comply with such standard. The paper addresses the impact of legal capacity reform in traditional private law theory of the juridical act. Currently, the Peruvian system does not provide clear or accurate standards to respond to this problem. The paper shines a light on the need to rethink multiple concepts of private law in order to make legal capacity reform fully operational.
This article celebrates the remarkable changes which have occurred in the provision of abortion care in Ireland following the vote to remove the restrictive Eighth Amendment to the Constitution of Ireland in May 2018. However, it also identifies ways in which the emerging legal, ethical and clinical landscape is still impeding the conscientious provision of abortion care. It argues that in order to address these impediments, more attention needs to be paid to the ethical context for conscientious provision. This requires political leadership as well as ongoing leadership by professional bodies to develop both the clinical and the ethical guidance for conscientious provision.
This article analyses representations of deodorising products in Australian women's magazines from 1880 to 1940 to examine how women were encouraged to fear their own smells and mistrust their own bodies. I argue that the transition to modernity witnessed a reduction in olfactory tolerance that fell along class and gender lines. Smells were imbued with new cultural meanings that served to reinforce women's subordinate status and to pathologise women's bodies on the supposed eve of their emancipation. As public space was increasingly democratised, smell was invoked to police social divisions and to render them culturally intelligible. As such, this article brings feminist history and the history of sexuality into dialogue with the history of the senses to redirect scholarly attention to the politics of smell. It also challenges dominant interpretations of modernity that emphasise the primacy of the visual.
Purpose: To inform the field of rehabilitation psychology about the sociocultural implications of the term “disability,” and explain the rationale behind the #SaytheWord movement, a social media call to embrace disability identity. Method: Review of the literature on disability terminology, the history of language use, and the relationship between attitudes toward disability and language. We reflect on the role of disability within the field of psychology and within the American Psychological Association (APA), including the underrepresentation of disabled psychologists and trainees with disabilities and the lack of mentorship opportunities available in the field. Implications: The authors argue that erasure of the word “disability” can have unintended and adverse consequences. We describe how erasure of disability identity in the context of current sociopolitical efforts to reduce and eliminate public services and supports for people with disabilities is especially threatening to members of the disability community. To move forward, the authors postulate that the disability movement must reconcile its own history of exclusion and adopt a disability justice framework. Conclusion: The field of psychology has a rich tradition of appreciation of cultural diversity and individual difference; yet, disability has largely been left out of these efforts. The disability movement is moving toward the status of a diverse cultural group with a social justice agenda parallel to those of other marginalized communities. The authors posit that psychology must play a stronger role in advancing the human rights of people with disabilities.
Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, and to receive the support they need for its exercise. With the aim of providing useful guidelines for legislative changes yet to be made, the present study examines and assesses, in the light of the Convention, some of the most recent and innovative legislative reforms in the area of legal capacity. The analysis shows that, although they appropriately reflect a change of perspective, shifting from the paradigm of the “best interests” of the person to the respect of their will and preferences, some of these reforms are not fully satisfactory, particularly because they still allow partial or total deprivation of legal capacity for persons with disabilities, and maintain institutions which perpetuate substitute decision-making. However, the recent modification of the Peruvian Civil Code and Civil Procedure Code deserves a highly positive evaluation as the first regulation of legal capacity and supported decision-making substantially compliant with the Convention.
The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person’s actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR’s case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.
This article examines the rationale of the continuing Finnish transgender sterilization requirement against the background of reproductive justice. I examine how and why the Finnish public debate on removing the sterilization clause from the Trans Act does not include an equal demand to 1) include a parental law reform and 2) a legislation on accessible, affordable and just reproductive health care for transgender persons and (cis)women alike. I will argue that since the citizens' initiative of the marriage equality legislation in Finland was followed by another citizens' initiative to reform the Maternity Act to include lesbian couples, transgender reproductive justice became a secondary issue. Another influence in the debates is the ongoing Finnish discussion on the declining birth rate and the heterosexual responsibility to reproduce for the sake of the nation.
The assessment of decision-making capacity in patients with acquired brain injury presents a range of clinical and legal challenges. The existing guidance on the conduct of such assessments is often generic; guidance specific to patients with brain injury is sparse and coarse grained. We report on the results of an interview-based study of decision-making capacity in patients suffering from acquired brain injury and organic personality disorder. We identify the clinical and legal challenges associated with the assessment of decision-making capacity in this patient population, review three bodies of relevant research from cognitive neuropsychology and neurophysiology, and draw on phenomenological analysis to identify three distinct abilities that play a role in decision making, but that can be compromised in patients with organic personality disorder. We address the challenge of translating clinical findings into legally attestable results.
Background: The bodies of some transgender and intersex people have been mutilated and their minds subjected to immense distress. Their gender has often been determined by others. Loss of fertility used to be considered an inevitable consequence of treatment.
Objective: To review the issue of preserving the reproductive potential of transgender and intersex people.
Methods: A narrative review based on a wide-ranging search of the literature in multiple disciplines.
Results: Major technological advances have facilitated reproduction for transgender and intersex people in the last few years. A majority of trans-adults believe that fertility preservation should be offered to them. Deferment of surgery for intersex people is often best practice; gonadectomy in infancy closes off fertility options and determines a gender they may later regret.
Conclusions: Transgender and intersex people should be able to consent to or decline treatment, especially radical surgery, themselves. Preservation of reproductive potential and sexual function must be given a high priority. Treatment by multidisciplinary teams can provide a strong emphasis on mental health and well-being. Detailed information about options, an absence of any coercion and enough time are all needed in order to make complex, life-changing decisions.
The right to vote is the foundation of democratic government; all other policies are derived from it. The history of voting rights in America has been characterized by a gradual expansion of the franchise. American Indians are an important part of that story but have faced a prolonged battle to gain the franchise. One of the most important tools wielded by advocates of minority voting rights has been the Voting Rights Act. This book explains the history and expansion of Indian voting rights, with an emphasis on seventy cases based on the Voting Rights Act and/or the Equal Protection Clause. The authors describe the struggle to obtain Indian citizenship and the basic right to vote, then analyze the cases brought under the Voting Rights Act, including three case studies. The final two chapters assess the political impact of these cases and the role of American Indians in contemporary politics.
Mary Ziegler's 2015 study After Roe: The Lost History of the Abortion Debate showed how political actors on the left and the right made the 1973 Roe v. Wade decision a symbol for today's fervently held beliefs on both sides of the abortion debate. Ziegler's investigation of the abortion rights struggles of the 1970s and the legacies of those struggles has been made newly relevant by the recent spate of “fetal heartbeat” laws severely restricting abortion and other reproductive services. That these state laws are intended as vehicles for challenges to the Roe precedent is undeniable, as is the polarized and divisive debate surrounding the issue. But the meaning of the Roe precedent is not always so plain or carefully interrogated.
That lack of investigation into the meaning of Roe v. Wade and its attendant right to privacy has been ably corrected by Ziegler's new book, Beyond Abortion (2018). Ziegler's thesis is that the decision's legacy, for law and politics, “includes all that activists made it mean, not just what the Court said” (p. 2). Building on her earlier work in After Roe—where she argued that “pro-abortion” and “anti-abortion” positions hardened into “pro-choice” and “pro-life” categories in response to political pressures and compromises—Ziegler shows in Beyond Abortion how a range of social movement activists used Roe or arguments related to it to “tap into the popularity of privacy demands while asking for something more” (p. 3). Because Roe tied privacy to bolder ideas of self-determination, the 1973 decision became useful to a variety of 1970s and 1980s social movements, from sexual liberty activists to mental health and treatment advocates to the right-to-die-with-dignity movement. Relying on archival research and targeted interviews, Ziegler shows how this wide range of movements disconnected from abortion wove the decision into their demands for social change. Ziegler tracks the changing politics of privacy—as well as the missed potential of privacy arguments for larger and more durable goals of equality and personal dignity.
This paper analyzes the contrasting media portrayals of female political participation in the kingdom of Saudi Arabia. Through a thorough discourse analysis of Saudi, British, and American newspaper articles surrounding the 2015 municipal elections, we scrutinize how the portrayal of women as a subject group has shifted from one that requires the constant approval of guardians in the public sphere to one that makes its own decisions and actively participates in politics. We analyze what types of discourses and frames have supported this drastic shift in official Saudi media discourses. We then contrast these findings with the portrayal of Saudi female political participation in Western countries that claim to uphold human rights and gender equality, in contrast to Saudi Arabia. Finally, we contrast our findings with the perceptions of 50 female Saudis regarding female agency and political participation in Saudi Arabia.
Discusses strategic litigation in terms of disabled persons' right to legal capacity in the context of international human rights law, notably in terms of the consequences of the withdrawal of such a right. Explores the emergence of legal capacity as right, commenting on the status-based approach and the outcome-based approach, as well as aspects of the guardianship framework. Examines the provisions of the UN Convention on the Rights of Persons with Disabilities 2006 art.12. Considers European jurisprudence on legal capacity, including the role of the European Convention on Human Rights 1950, and the value of litigation.
Cambridge Core - US Law - Abortion and the Law in America - by Mary Ziegler
This article examines rights-based mobilization amongst the transgender community in Pakistan, India, and Iran. It tackles the dominant discourse of Human Rights, which has always found its geographic epistemic in the Global North. Thus, it argues that understanding the rights of transgender people in a non-Western world requires tracing the etymological history of such rights language, which is embedded within a greater vernacular knowledge of rights influenced by its colonial past.
This article explores the vulnerability that is created when legal capacity is denied to women and disabled women. It argues that vulnerability is largely contingent on social constructs - as opposed to being an inherent quality of disability or gender. It discusses barriers to the exercise of legal capacity that women and disabled women experience - such as limitations on reproductive choice, higher rates of substituted decision-making, and unique experiences with forced mental health treatment. It then explores evidence that such barriers are disempowering and can leave women and disabled women vulnerable to abuse and marginalisation. It explores financial, physical and sexual abuse that can occur as a result of this vulnerability. Finally, it concludes that autonomy and power are inextricably linked and can be essential for minimising vulnerability.
Over the last decade, trans* issues have increasingly gained attention all around the globe. While this increased social recognition has mostly resulted in higher acceptance rates of gender non-conformity, world-wide data show that trans* persons still remain among the most vulnerable groups in society. One of the most pressing issues facing trans* persons, is their inherent psycho-pathologisation and medicalisation in society and law. Indeed, in modern history, trans* issues have been predominantly addressed through the lens of medicine and psychiatry, which has had a clear impact on the legal capacity of gender non-conforming persons. Although this contribution shows that a human rights movement towards depathologisation and demedicalisation of gender non-conformity is rapidly getting up steam in several parts of the world, it needs to be questioned whether the current human rights approach is getting it 'right'. In this regard, it is argued that the present focus on trans* depathologisation and demedicalisation should only be the first step towards the full inclusion of all trans* persons in law and society.
In this satirical essay published in an early issue of Ms. magazine (October 1978), feminist activist and journalist Gloria Steinem “flipped the script” to show how a natural reproductive process, which is considered negative and stigmatized because it is associated with women’s bodies, would become positive and worthy of attention and pride if it were associated with men’s bodies. The essay provokes laughter as it illuminates (Click!) the ways that anything associated with higher-status groups is automatically more valuable and respectable than anything associated with lower-status groups.
In May 2018, the Irish electorate voted to remove from the Constitution one of the most restrictive abortion bans in the world. This referendum followed 35 years of legal cases, human rights advocacy, feminist activism and governmental and parliamentary processes. The reframing of abortion as an issue of women's health rather than foetal rights was crucial to the success of law reform efforts. The new law, enacted in 2018, provides for access to abortion on a woman's request up to 12 weeks of pregnancy and in situations of risk to the life or of serious harm to the health of the pregnant woman and fatal foetal anomaly thereafter. Abortion is now broadly accessible in Ireland; however, continued advocacy is needed to ensure that the state meets international human rights standards and that access to abortion care and abortion rights is fully secured within the law.
This article traces the history of the diagnosis of hysteria from the earliest medical formulations in the 17th century to the present, including the presence of this diagnosis in the five iterations of the Diagnostic Statistical Manual (DSM) of the American Psychiatric Association. Several different types of hysteria are discussed, with alternative causal explanations. Research focusing on this disorder is summarized.
The Thin Woman provides an in-depth discussion of anorexia nervosa from a feminist social psychological standpoint. Medicine, psychiatry and psychology have all presented us with particular ways of understanding eating disorders, yet the notion of ‘anorexia’ as a medical condition limits our understanding of anorexia and the extent to which we can explore it as a socially, discursively produced problem. Based on original research using historical and contemporary literature on anorexia nervosa, and a series of interviews with women diagnosed as anorexic, The Thin Woman offers new insights into the problem. It will prove useful both to those with an interest in eating disorders and gender, and to those interested in the new developments in feminist post-structuralist theory and discourse analytic research in psychology.
This essay reframes both the woman suffrage narrative and narratives of African American voting rights struggles by focusing on the experiences of southern African American women between the 1870s and the 1920s. It argues that the Fifteenth Amendment remained central to their suffrage strategy long after the failure of the “New Departure” to win court sanction caused white suffragists to abandon it. As white supremacists in the South worked at the turn of the century to disfranchise black men, leading African American suffragists such as Mary Church Terrell, Gertrude Bustill Mossell, and Adella Hunt Logan called for the enforcement of the Fourteenth and Fifteenth Amendments as well as the enfranchisement of black women. After the federal woman suffrage amendment was ratified in 1920, many southern African American women encountered the same barriers to voting—obstructionist tactics, threats, and violence—that black men had faced a generation earlier. In short, for aspiring African American voters in the South, the failure of the Nineteenth Amendment to secure voting rights for black women constituted a sad sequel to the failure of the Fifteenth Amendment to secure voting rights for black men.
This interpretation offers three significant interventions. It pairs the Reconstruction-era Amendments with the Nineteenth Amendment, recognizing their shared focus on voting rights. It connects the voting rights struggles of southern African Americans across genders and generations. Finally, it finds that, for some women, the canonical “century of struggle” for voting rights continued long after the Nineteenth Amendment was ratified.
Following the Speaker's conference on electoral reform of 1916–17, the Representation of the People Act 1918 gave women over the age of 30 years who met minimum property qualifications the parliamentary vote for the first time. After a decade of continued suffrage campaigning and pressure in parliament, the Representation of the People (Equal Franchise) Act 1928 gave women the vote on the same terms as men, at age 21 years, with no age or any other restrictions. Although important in itself, votes for women also carried along a wider agenda of legislation relating to gender equality and issues affecting women and children during the interwar period. This essay gives an overview of how the Speaker's conference and the 1918 act affected women, considers the immediately-related legislation in 1918–19 which allowed women to become MPs and removed other sex disqualifications, and traces progress in parliament towards equal franchise over the next decade, including a pledge by Stanley Baldwin in 1924 and an undertaking by William Joynson-Hicks in 1925. It explains the changes in personnel and attitudes over time which finally enabled a Conservative government to grant equal franchise in 1928.