March 8, 2021
Disability Justice is Gender Justice: Acknowledging Disabled Women This Women’s History Month
Diversity Chair, ACS District of Columbia Lawyer Chapter
Part of a special series recognizing Women’s History Month
Content Warning: This article contains discussion of sexual assault, trauma, gender-based violence, and loss of reproductive autonomy.
Roe v. Wade is a landmark case that is largely associated with gender justice and reproductive justice. However, we do not discuss how Roe v. Wade plaintiff Norma McCorvey was institutionalized, was a ward of the state, experienced extreme trauma throughout her life, and used substances. We fail to address how these issues of autonomy, due process, and control over our bodies that permeate reproductive justice case law and disproportionately affect disabled women. We ignore the ways in which reproductive justice intersects with disability justice. After all, then-sitting Supreme Court Justice Oliver Wendell Holmes, Jr. thought it apt to write in Buck v. Bell, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough,” in upholding the constitutionality of a Virginia statute authorizing compulsory sterilization of individuals with intellectual disabilities for eugenic purposes. Buck v. Bell has never been formally overturned. This ableist history is one that we must also grapple with during Women’s History Month. Often, disabled women, particularly disabled women who are black, indigenous, and people of color (BIPOC), are overlooked in these conversations. The intersectionality of disability justice and gender justice must be acknowledged for us to defeat systemic oppression and undermine patriarchal norms.
As a disabled person, much of my work has focused on the intersection of disability justice and other identities and aspects of the law. I have produced scholarship on the constitutional concerns raised when a disabled adult under guardianship is not guaranteed the right to make a decision about whether to reproduce. My current project at Tzedek DC—a non-profit dedicated to safeguarding the legal rights of DC residents with low incomes dealing with often unjust, abusive, and illegal debt collection practices, as well as other consumer protection problems—focuses on the rights of disabled consumers and how these issues disproportionately affect disabled individuals. Disability is not an issue that we can silo. Disability justice is racial justice; it is LGBTQ+ justice; it is environmental justice; it is employment justice; it is educational justice; it is criminal legal reform. Disability is engrained in every aspect of our lives—it is part of our identity.
Disabled women are still regularly deprived of autonomy and due process. With the release of the New York Times Presents: Framing Britney Spears and the popularization of the #FreeBritney movement, there have been a number of discussions about 1) the problems associated with overly restrictive guardianships and conservatorships, 2) how they restrict the rights of disabled individuals, and 3) how gender played into the way Britney Spears was treated throughout her career and by the legal system. In the documentary, Tess Barker, one of the co-hosts of the podcasts “Britney’s Gram,” poignantly notes, “I have always viewed the situation as something that I don’t think would have ever happened to a man in America.” Restrictive and rights-stripping structures like guardianships and conservatorships are not meant for individuals who are able to make their own decisions. It is concerning that disabled women continue to be denied control over their own decisions—whether those decisions are about whether to have children, what to do with our money, what to do with our careers, with whom we associate, how to vote, or anything else—particularly when the judicial branch sanctions these injustices. Guardianships and conservatorships are also extremely difficult to remove once imposed. The legal system sanctions this exploitation and abuse, often times even when less restrictive alternatives would work for the disabled person, such as powers of attorney, which can be revoked; supported decision-making; or limited guardianship, if necessary, in only the areas in which the individual lacks capacity.
This issue of autonomy bleeds into reproductive justice, sexual freedom, and parental rights for disabled women. (It should be noted that reproductive justice is not simply an issue that affects women, although it disproportionately affects women. Reproductive justice is vital for transgender, non-binary, and gender non-conforming folks who can reproduce as well.) Not all disabled people are permitted to make decisions about their own reproductive rights. Disabled people may be subject to forced sterilization or abortion, or even forced to reproduce. Guardianship may play a role in whether someone can make these decisions—rules are not consistent, although there are typically due process requirements involved in when a guardian can make such decisions. In one case, six-year-old Ashley X’s parents elected to perform estrogen therapy, bone plate fusion, a hysterectomy, and breast bud removal, claiming she would never develop past the motor and cognitive skills of a three-month-old. The State of Washington eventually found that the procedure was illegal, but these eugenic attitudes remain pervasive.
Forced sterilization also occurs in the criminal context. For example, in 2005, Carrie Ashe, who killed her child after experiencing post-partum depression, was forced to agree to undergo sterilization as a part of her plea deal. One might argue that Ashe chose to undergo sterilization, but the choice was sterilization or jail. When these are the options, of course, disabled individuals would feel pressured into sterilization. There is an extreme power imbalance; the government is requiring someone to permanently give up a fundamental right in exchange for freedom.
Additionally, disabled people, particularly women, face increased barriers to accessing reproductive health care and assisted reproductive technology; for example, parents face discrimination based on doctor concerns about parenting, concerns about pregnancy complications, or concerns that a child will be disabled. Finally, large numbers of people with disabilities rely on Medicaid for health care; the Hyde Amendment ensures that Medicaid does not pay for abortion access, creating a large barrier for disabled individuals, or anyone, on Medicaid who wishes to access an abortion.
People with disabilities are, generally, deprived of sexual freedom because they are not viewed as sexual beings and concerns about reproduction and parenting ability. Disabled people may also be viewed as hypersexual. For these reasons and due to the general inaccessibility and inapplicability of sexual education to the experiences of disabled people, sexual education is also largely unavailable.
Parents with disabilities also lose their fundamental, constitutional rights more frequently than non-disabled parents. Disabled BIPOC are at even greater risk of losing these rights. Parents with disabilities face doubt and assumptions about their abilities that non-disabled parents simply do not.
In addition to being denied fundamental rights, disabled women are more likely to experience violence and gender-based violence than non-disabled women. Non-disabled individuals may also become disabled as a result of gender-based violence. This violence can cause disability such as post-traumatic stress disorder, other psychiatric disabilities, or physical disabilities, for example.
Finally, health care disparities are greater for disabled women than men. Women, in general, struggle to get doctors to believe and properly diagnose their conditions; women’s symptoms and complaints are often dismissed. As a result of dismissing pain, women are also more likely to be unable to access opioids and other painkillers to manage their symptoms. These disparities and dangers are greater for BIPOC women.
My first experience with this dismissiveness was when I was a child. I had constant gastrointestinal pain. My doctor refused to refer me to a gastroenterologist, claiming I was just “eating too many chicken nuggets.” All the while, I had been living with Celiac Disease, which had been destroying my intestines. Later in my life, it took almost two years to diagnose gallstones that had infected my gallbladder by the time it was removed. By that point, I had simply been told I had acid reflux and irritable bowel syndrome, and doctors had given up. Finally, it took years to diagnose my myotonic dystrophy. Throughout my life, I’d had pain, spasms, and other neurological phenomena that no one could diagnose. Even after my condition began to rapidly progress, doctors dismissed my concern that it could be a genetic or more multi-systemic condition. They also ignored my ideas about diagnoses. I brought up myotonic dystrophy as a possibility three years prior to official diagnosis. That diagnosis and my concerns were dismissed. It then took going to two different doctors to receive that diagnosis via a genetic test. I lost years of monitoring, physical therapy, and pain relief.
Disability issues are women’s issues. Disabled women are dying, losing their constitutional rights, and being stripped of their autonomy. These are, of course, not the only ways in which disability justice and women’s rights intersect. However, we cannot let these practices continue while calling ourselves warriors for gender equity; we must not forget about disabled women. When we discuss case law and constitutional issues at the forefront of the progressive and feminist movements, we must acknowledge the disabled women throughout history who have dedicated their labor and shared their stories to advance these movements and bring cases forward, how these decisions disproportionately impact disabled women, and the ways in which we, as lawyers, can work with and listen to the disabled community to effect broad change.
Marissa Ditkowsky is Tzedek DC’s 2019-2021 Gallogly Family Foundation Fellow. She also is a DC Lawyer Chapter leader.