Debates
Author: Carla Maria Reale- post-doctoral researcher at Faculty of Law, University of Trento (Italy)
Original Post: The Loud Silence on Disability and Sexuality; My perspective. by Mohamed Maalim
Addressing the topic of sexuality and disability means uncovering issues capable of questioning our stereotypes, our bodies, the construction of our desires, and our ideas on desirability. Sexuality is an issue that touches the core of our relational selves, of our identities as persons. Anne Finger, a prominent writer, and disability activist, defined sexuality for people with disabilities as “the source of our deepest oppression; (…) the source of our deepest pain.” (Finger, 1992).
In a post published on this blog, while discussing sexuality and disability from a psychological/social perspective, Mohamed Maalim used the expression “loud silence”. I was deeply moved by these words, as the same loud silence dominates the legal sphere of sexuality and disability as well.
This short post has the purpose of engaging in an interdisciplinary dialogue, to better understand how, from different perspectives, scholars, activists, and professionals can create a positive approach to and constructive debate on people with disabilities’ sexualities.
Taking into account the difficult relationship between sexuality and law, a legal and human rights perspective on sexuality for people with disabilities is a challenging task.
For a long time, laws were mainly devoted to providing restraint to sexuality and sexual behaviours (Foucault, 1978). An example of this restraining approach is the criminal provisions around homosexual behaviours and homosexuality. During the so-called “sexual revolution”, which happened in Europe and the USA during the 1960s and 1970s, traditionally oppressed categories of people, such as women within the feminist movement, and transgender, lesbian and gay people, asked for deregulation in the field of sexuality and, arguing that self-determination in the sexual sphere should be granted. At the same time, however, these social movements were asking for the recognition of certain specific rights and services in the sexual and reproductive sphere, such as abortion, access to contraception, or procedures for legal gender recognition.
This tension in the relationship between law and sexuality is still unsolved, and it emerges clearly and peculiarly at the intersection with disability issues. The sexual sphere of people with disabilities is surrounded by many stereotypes and misconceptions and it is primarily dominated by denial, censorship, and stigma and law reflect this paradigm. The desexualisation of people with disabilities plays a key role in perpetuating their situation of marginalization, with the denial of sexual agency and the capability and desire to engage consensually in sexual activity and express sexuality. Despite its relevant legal implications (e.g. forced sterilization and legal constraints on sexual agency, see on this matter the criminal code reform process in Ireland, Arstein-Kerslake and Flynn, 2016) and recent efforts to secure its negative aspects, for example in the UN Convention on the Rights of Persons with Disabilities (e.g.: Art. 23, and Art. 25) rights in the sphere of sexuality for people with disabilities have not been the object of positive measures in Europe, with few exceptions (e.g. the Danish guidelines for public structures, see Kulick and Rydström, 2015).
However, critical disability theories revealed that the struggle for social justice «is not simply social, economic and political, but also psychological, cultural, discursive and carnal». (Meekosha, Shuttleworth, 2009). Thanks to feminist disability theory (Garland-Thomson, 2005) and crip theory (McRuer, 2006) sexuality emerged as a peculiar ground of oppression for people with disabilities. These scholars and activists affirmed the need for sexuality to step outside the private/individual dimension (medical/individual model of disability) and to emerge as a social and collective ground. Only if that happens, it is possible to identify and contrast social barriers in the field of sexuality, creating a social and cultural context which acknowledges, promotes, and nurtures sexuality as an important sphere for everyone, including people with disabilities. In this scenario, the law needs to intervene both with negative rights, granting non-interference, but also positive rights to contrast social barriers in this field and promoting personal development. Positive measures are needed because non-interference in the sexual sphere is simply not enough to secure privacy, affirm self-determination, and grant accessibility in the field of sexuality. On the contrary, to foster individual autonomy (and privacy) there is a need for greater regulation in the sphere where this autonomy is exercised (this perspective draws from a broad feminist legal literature on the private/public dichotomy, see for example Higgins, 1999 and MacKinnon, 1991).
For all these reasons, the intersection of sexuality and disability represents a call for legal action because if there is nothing like a monolithic right to sexuality, there are a multitude of sexuality-related rights connected to the exercise of fundamental rights that must be granted. This implies pushing for the de-medicalization of their sexuality while ensuring the right to sexual and reproductive health, the re-professionalization of caregivers to take sexuality into account, it means developing and framing tools for personal assistance in the field of sexuality and for sexual facilitation (such as the instrument of sexual assistance, which I discussed in this article).
All these kinds of interventions need specific policies and regulations to be implemented in light of the principles of self-determination, non-discrimination and equality expressed in domestic Constitutions and international human rights law. The comprehensive social change needed should be enhanced by laws affirming the existence and the agency of people with disabilities as sexual beings in society. Arising social issues and also from the materiality of life, laws can actively contribute to social change.