Part I The concepts: The human rights framing of disability Disabilities Act.38 In a series of cases known as the Sutton trilogy,39 the United States Supreme Court arguably failed to understand the social model approach used in the Americans with Disabilities Act and narrowed the categories of those entitled to protection under the Act. Regardless of the merits, many litigants with disabilities found it hard to get their day in court since they failed to meet the definitional threshold demanded by the Supreme Court. This required amending legislation from Congress to “reright the ADA”40 In sum, one important implication of the move to the human rights frame is that impairment-specific definitions of disability should be avoided in anti-discrimination law where the focus is clearly on countering discriminatory barriers and behaviours. If it is necessary, for the sake of legal clarity, to define those groups protected by the law, it should be done in a way that does not undermine the focus of the legislation or create unnecessary barriers in terms of access to justice. This seemingly academic point is highly relevant to the work of NHRIs. NHRIs should ensure that definitions of disability in domestic anti-discrimination law do not perpetuate old approaches that ‘make the person the problem’. The goal of the legislation should be to squarely address the structural barriers and the behaviour of third parties that unfairly limit the opportunities of persons with disabilities. Antidiscrimination law is symbolic of the re-framing of disability that has taken place in recent decades. If the law is not re-framed with this approach at its heart, then it is hard to see how any associated measures can succeed. 1.4. THE NEED FOR A BROAD LIFE COURSE PERSPECTIVE A life course perspective is very important in relation to disability.41 Many more people with disabilities are now ageing. This means they encounter the very same transition points experienced by others; for example, transition from school to employment, parenthood, the advent of sickness or disease, and old age. As a result, policies designed to deal with these ‘normal’ transition points must be extended to embrace persons with disabilities. NHRIs whose work focuses on these ‘normal’ transition points will have to mainstream persons with disabilities. Impairment is not, for many people, from birth. It can be associated, in particular, with the ageing process. This means that the prevalence of impairment and long-term health conditions is rising in ageing societies. While not all older persons are persons with disabilities, there is sufficient overlap to justify a strong focus on age and disability. This is the subject of the very fine 2012 Toronto Declaration on “bridging knowledge, policy, and practice in aging and disability”.42 The distinct but overlapping fields of ageing and disability mean that the UN CRPD will be a useful guide in framing of an eventual Convention on the Rights of Older Persons.43 NHRIs are rightly increasing their focus on the rights of older persons. Accordingly, this work will have to encompass and mainstream persons with disabilities who are aging. 38 See, for example, P. Miller, ‘Reclaiming the Vision: the ADA and Definition of Disability’ in Brandeis Law Journal, Vol. 41, 2003, p. 769. 39 The Sutton trilogy refers to: Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Alberston’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 40 See United States National Council on Disability, Righting the Americans with Disabilities Act, December 2004; see also ADA Amendments Act of 2008, available at www.eeoc.gov/laws/statutes/adaaa.cfm. 41 M. Priestley (ed), Disability and the Life Course: Global Perspectives 2001. See also E. Jeppson Grassman and A. Whitaker, Ageing with Disability: A Lifecourse Perspective, 2013. 42 J. Bickenbach, C. Bigby, L. Salvador-Carulla, T. Heller, M. Leonardi, B. LeRoy, et al. ‘The Toronto Declaration on Bridging Knowledge, Policy and Practice in Aging and Disability’ in International Journal of Integrated Care, Vol. 12, 2012; available at www.ijic.org/index.php/ijic/article/view/1086/192. 43 For a discussion of the usefulness of the Convention on the Rights of Persons with Disabilities in the context of a possible convention on the rights of older persons, see R. Ruebner, T. Do and A. Taylor (eds.), International and Comparative Law on the Rights of Older People, 2015. Chapter 1: The human rights re-framing of disability | 17