Human Rights and Disability A Manual for National Human Rights Institutions 1.3. DEFINITIONS IN ANTI-DISCRIMINATION LAW The human rights framing of disability is especially important when it comes to anti-discrimination law. If persons with disabilities have been treated in the past as ‘objects’ and not ‘subjects’, and if one consequence of this has been a systematic denial of their rights, then it makes sense that ensuring equality for persons with disabilities must be the primary objective of any legislative tool. That is to say, the law must promote respect for the equal and effective enjoyment of all rights by persons with disabilities. It is obvious that anti-discrimination law is one of the strongest tools available to States to challenge out-dated practices.34 The most famous example of this is the Americans with Disabilities Act (ADA) of 1990, which is probably one of the most widely copied pieces of civil rights legislation in the world.35 It is clear that legislation of this type is a necessary first step towards embedding the human rights model of disability. It should, of course, be complemented by a range of programs and initiatives that help deliver broad systemic change. The advantage of anti-discrimination legislation is that it places power in the hands of the individual to challenge outdated practices. Where such laws are not in place, NHRIs have a clear responsibility to advocate for them. Where they are in place, NHRIs have a clear responsibility to frame the definition of disability to ensure the focus is firmly on the barriers to equality that need to be removed. Given that such laws are generally directed against the behaviour of others, it might even seem unnecessary to include a definition of disability. After all, what matters most is that the relevant parties are clear about their responsibilities to persons with disabilities and are clear about those behaviours that are prohibited. However, some States have enacted anti-discrimination laws – which generally predate the UN CRPD – with impairment-specific definitions of disability. This can have the effect, intended or otherwise, of undermining the human rights model of disability and even restricting a person’s legal standing or entitlement to use the law. For example, for a person in Britain to bring a complaint of disability discrimination, a court or tribunal must first establish that the person has “a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities”.36 This approach still focuses on the impairment and its impact, rather than on the aggravating factors found outside the impairment. In addition to containing qualifications not found in the UN CRPD, such as the requirement that an impairment must be “substantial” and have an “adverse effect on normal day to day activities”, it has been argued that this definition, which was originally included in Britain’s Disability Discrimination Act of 1994, is based upon the medical model of disability and therefore out of place in anti-discrimination law. Similarly, Australia’s Disability Discrimination Act 1992 includes a very broad medicalised definition of disability. While the Australian legislation avoids the particular qualifications included in the British legislation, it also appears to resonate with the medical model of disability rather than the social model or the human rights model.37 In defence of impairment-based definitions in anti-discrimination legislation, it might be argued that, since the underlying purpose of such laws is to counter discriminatory barriers and behaviours of others, then those third parties should know with reasonable clarity to whom their obligations apply. An interesting paradox arises here, as impairment-based definitions have generally not created any barriers to accessing justice – unlike more social definitions of disability used in, for example, the Americans with 16 34 INTERIGHTS have produced several reference manuals for lawyers, available at www.interights.org/lawyers-manuals/index.html. See also the various handbooks produced by the European Agency for Fundamenetal Rights, available at http://fra.europa.eu/ en/publications-and-resources. 35 The full text of the Act is available at www.ada.gov/2010_regs.htm. 36 Section 1(1); available at www.legislation.gov.uk/ukpga/1995/50/section/1. 37 Section 4(1); available at www.comlaw.gov.au/Details/C2015C00252.