
doi: 10.2139/ssrn.1920819
It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system - judicial opinions, legislation, the role of lawyers, juror decisionmaking - and the entire fabric of American society. Notwithstanding twenty years of experience under the Americans with Disabilities Act and an impressive corpus of constitutional case law and state statutes, the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law a half century ago. The reasons for this are complex and, to a great extent, flow from centuries of prejudice - often hidden prejudice, often socially-acceptable prejudice - that has persisted in spite of prophylactic legislative and judicial reforms, and a seeming (on the surface) significance uptick in public awareness.Many of us hoped that the passage of the Americans with Disabilities Act in 1990 - far and away the broadest anti-discrimination law ever enacted on behalf of this population - would have a great impact on the pervasiveness of sanism, but our early optimism was radically tempered by a series of Supreme Court cases that limited the law’s value to persons with disabilities. The recent ratification of the Convention on the Rights of Persons with Disabilities (CRPD) has the potential to change the legal landscape (though note that, although President Obama signed the CRPD in the summer of 2009, the Senate has not yet ratified it). This Convention is the most revolutionary international human rights document - ever - that applies to persons with disabilities. It furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life. It firmly endorses a social model of disability - a clear and direct repudiation of the medical model that traditionally has been a part-and-parcel of mental disability law. It furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most aspects of life. “The Convention responds to traditional models and situates disability within a social model framework and sketches the full range of human rights that apply to all human beings, all with a particular application to the lives of persons with disabilities.” It provides a framework for insuring that mental health laws “fully recognize the rights of those with mental illness.” In this paper, I consider the Convention’s likely impact. First, I briefly discuss both our sanist past and our sanist present. Then, I consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In this latter inquiry, I will also draw on the tools of therapeutic jurisprudence. Then, I will offer some brief and modest conclusions.
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