Why equality law and Deaf people don’t get on: developing Deaf Legal Theory

This presentation will introduce my doctrinal and socio-legal doctoral thesis, which is understood to be the first doctoral thesis on the subject of Law as it relates to Deaf people in the UK and possibly internationally, exploring the possible solutions to the conflict between equality law (which categorises Deaf people as disabled) and the Deaf identity, and how its findings contribute to the development of Deaf Legal Theory, originally penned by Bryan and Emery.

Bryan and Emery argue that for Deaf jurisprudence to develop, the current underpinnings of law are based on incomplete assumptions which need to be exposed. Thus, I will attempt to expose equality law’s incomplete assumptions of Deaf people, and how this exposure contributes to the development of Deaf Legal Theory.

At present, equality law on a domestic, European and international level currently provides Deaf people with human rights and protects them from discrimination. However, with the limited exception of the United Nations Convention of the Rights of Persons with Disabilities (CRPD), these rights are given to Deaf individuals as disabled individuals, rather than as Deaf individuals. This is essentially what I refer to as the ‘Deaf Legal Dilemma.’

The British Deaf Association espouses that “equality is what it stands for”, and on the international stage, the World Federation of the Deaf highlights that one of its most important priorities in its work is to ensure human rights for Deaf people all over the world, in every aspect of life. Thus, it would appear that what Deaf people want above all is equality.

There is no initial agreement among scholars as to what the important questions are, and McIntyre J, speaking for the Supreme Court of Canada in Andrews v Law Society of British Columbia remarked that “more than any of the rights and freedoms, [equality] lacks precise definition”. Nonetheless, I have attempted to make sense of equality law, and relying on Westen’s precepts of equality and McLachlin’s “emerging rocks of certainty,” present three categories of equality: formal, substantive and transformative, within which the various concepts of equality can be categorised accordingly. It is clear from this exercise that transformative equality is the most appropriate approach for Deaf people to achieve equality in their own right as Deaf individuals rather than as disabled individuals.

Having established which approaches to equality law are most relevant to Deaf people, a doctrinal approach is to be undertaken with regard to the Universal Declaration of Human Rights, European Convention for Human Rights, the Equality Act 2010 and the UNCRPD, as well as the British Sign Language (Scotland) Act 2015, to establish their main provisions that apply to Deaf people and a critique of each in relation to the Deaf identity, and other factors such as enforcement mechanisms.

Initial findings as to the potential solutions to the Deaf Legal Dilemma in relation to equality law at present are wider use of the CRPD, the widening of the social model of disability, sign language recognition, and/or reverting to the social welfare model.

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