In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.
An almost identical binary exists for disability, the disablement/ impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability.
In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble. ...
Disability scholarship is now in a critical stage. Theoretically, work on disability is young and entering a second wave of critical development. Jurisprudentially, disability is at a pivotal stage as courts prepare to reinterpret the provisions of the ADA in light of recent amendments. It is both timely and appropriate to rethink the meaning of disability, and this requires attention to the core explanatory construct in disability theory: the disability binary.
This Article advances the conversation about disability identity in a way that is attentive to related areas of scholarship, especially feminist work on the gender/sex binary. In this way, disability scholarship may draw on the richness of others’ contributions and avoid wheel-reinventing. There are legal implications to rethinking disability identity, and this Article identifies several of them. Hopefully, scholars and activists will build upon these insights to further bridge disability theory and practice.
23 June 2011
'Disability Trouble' by Bradley Areheart in 29 Yale Law & Policy Review (2011) 347-388 argues that -