Disability, Rights, and the Construction of Sexuality in Tort Claims

Abstract

This study empirically investigates how courts define sexuality of disabled persons in the absence of a formal right to sexuality. The focus of the study is tort law, a field ungoverned by direct disability rights legislation, assuming that tort law is the law of disablement as it concerns the transformative process of becoming disabled. The study investigates the types of damages courts have awarded for harm to sexual functioning, inquiring to whom and under what conditions have they been awarded. Additionally, it examines the discourse that characterizes each type of damages, and the legal, social, medical, and healthcare policy developments that have affected courts' rhetoric and reasoning. Our findings reveal shifting trends in scale, content, and inclusiveness of beneficiaries in terms of gender and age. Over time, courts have adopted a more hopeful and dynamic approach to disabled persons' sexuality while remaining within an individual‐medical framework. We suggest that these shifting trends can be linked to the slow diffusion of the social‐affirmative approach to disability, the limits of tort law as a field, and the role of healthcare policy in shaping the landscape of tort claims.

Representing Disability in Tort Litigation: An Empirical Analysis of Judicial Discourse (1998–2018)

“…To trace and identify whether a discursive shift occurred in personal injury court decisions, we performed a qualitative content analysis of district court rulings when sitting as a first instance trial court. This methodological choice rests on several contentions: first, that courts, specifically trial courts, participate in constructing legal meanings and shaping social perceptions (Rollins 2002;Vanhala 2010;Vogler 2016); second, that the judicial text is an essential self-sufficient research subject, especially apt for content and discourse analysis (Hall and Wright 2008;Shuy 2015;Kirkham and O'Loughlin 2019); and, third, that content and discourse analysis are valuable tools for uncovering the social and legal meaning of disability (Grue 2011(Grue , 2019Mor and Pikkel 2019).…”

“…The ERPDL was a significant legislative achievement. It included operative provisions relating to antidiscrimination, accommodations, access, and declaratory provisions that offered a normative framework for all disability-related matters (Ziv 2004;Mor 2019). In subsequent years, disability rights legislation expanded, the ERPDL was further implemented, and additional legal fields were subject to the impact of rights, although changes were incremental and slow (Rimmerman et al 2005(Rimmerman et al , 2015.…”

“…Recent years have seen a growing social constructionist understanding of disability as a dynamic and interactive social phenomenon that is shaped by social, cultural, political, disabling social structure, which remains unchallenged (Bagenstos and Schlanger 2007;Bloom and Miller 2011;M. Weber 2012;Mor 2018;Mor and Pikkel 2019). Tort law is, therefore, an uncommon yet fascinating site for a socio-legal study of the changing meaning of disability.…”

“…While each of the two discourses and their attendant four models has its drawbacks, they offer conceptual clarity that is particularly useful for empirical research (Mor and Pikkel 2019). Based on these two types of discourse, we identified key terms that indicate what language personal injury court decisions employ and developed two indexes to measure their intensity.…”

From Welfare to Work and From Work to Welfare: A Comparison of People With and Without Disabilities

“…Eligibility criteria for a general disability pension, rehabilitation, and other services and supports under this program are determined by “Baremas” or “limb-rates,” scales that convert the type and extent of the impairment into percentages (Marin & Prinz, 2003, p. 8). Eligibility, as will be outlined below, is based on the severity of the impairment, economic status, and employability or work potential (Gal, 2001; Mor, 2005). Specifically, the NII (n.d.-a) provides a general disability pension to working-age (18–67 years for men; 18–62 years for women) Israeli residents, who also meet other criteria pertaining to earnings and impairment level (see NII, n.d.-a).…”