INDIVIDUAL RIGHTS AND RESPONSIBILITIES: Structural Barriers to Sexual Autonomy for Disabled People

Vol. 31 No. 2

By

Bethany Stevens is a sexologist and disability consultant.

Disabled people face structural and attitudinal barriers when seeking sexual and reproductive autonomy; paying for pleasure is the consequence of punitive medical and legal systems in the United States. This article focuses on five structural barriers to sexual health, each of which demonstrates how medicalization, policy, and law work in concert to perpetuate a system of social power that simultaneously exalts and enforces normalcy while excluding and devaluing disabled people.

Social residue of anti-sodomy statutes. Until the 2003 Supreme Court decision Lawrence v. Texas, 13 states had laws that criminalized the majority of sexual activities by permitting only heterosexual coitus or penis-vagina penetrative sex (PV sex). It is important to note the majority of people targeted by anti-sodomy laws were lesbian, gay, bisexual, transgender (LGBT), and queer people, but disabled people were also targeted. Criminalizing sodomy negatively impacted disabled people because many, especially those with mobility impairments, chronic fatigue, and pain, cannot engage in traditional PV sex and therefore did not fall into the narrow category of legal sexual activity. Making certain sexual activity illegal stigmatizes and marks as criminal those who are associated with that activity.

Though the legal status of sodomy has changed, much of the cultural residue of conflation of sexual identity and criminality remains today. Certainly, the demonization and violence against LGBT and queer people speaks to the continued animus toward them, but there is more to this nexus to unpack. The criminalization of sodomy points to the need to deconstruct what “real sex” entails. All too often, people concede to the culturally produced narrative that sexual activity should be performed by particular bodies in certain ways (i.e., heterosexual, nondisabled, white, young, fit, etc., bodies moving in normative heterosexual coitus modes).

Financial disincentives to marry. Social Security’s Supplemental Security Insurance (SSI) disincentives to marriage continue to place many disabled people in the position of deciding whether to marry or cohabitate and lose benefits or whether to remain single to retain life-sustaining benefits. SSI and reliance on state and federal subsidized health insurance keep most disabled people in a poverty trap.

Since the early 1980s, disability lawyers and scholar-activists have demanded change in SSI disincentives to marriage. These disincentives manifest through the calculation of a partner, spouse, or cohabitant’s income as part of the disabled person’s income. The Social Security Administration contends this calculation is made to recognize that two people living together are in a better financial position than those living alone. However, anyone who has lived on SSI—which in many states is 75 percent below the poverty line—knows that only dollars can change the way a month is lived. The legal pressure to remain single forces many to conceal marriages or not marry at all; for some, this means they cannot have any sexual activity or reproductive autonomy. SSI disincentives are imbued with eugenic ideology because for many disabled people, this barrier prevents procreative sex between heterosexual disabled people.

Inaccessible sexual and reproductive health care. In many settings, disabled people lack physically and culturally accessible sexual and reproductive health information and care. Medical professionals all too often assume disabled people are only their disabilities—reifying the medical model of disability that asserts the problem of disability is a personal, rather than social, one. Thus, medical professionals often assume disabled people should only see doctors associated with their disability instead of treating the whole person. In terms of sexual health and reproductive health, this issue is incredibly problematic, as disabled people are not asked about their sexual history, not asked about the need for contraception, and are often denied any information concerning sexuality.

Medical professionals must be taught a new form of cultural competency because the one being used now simply does not do enough. Traditionally, cultural competency hinges on knowledge and tolerance toward racial and ethnic minorities, as well as increasingly people with diverse sexual orientations and genders. This framework does not promote a disability-inclusive understanding of culture, nor does it take into account the psychosocial mechanics of social power and privilege noted in systems of oppression.

These forms of social oppression manifest in emotional, psychological, and physiological ways that include depression, hypertension, anxiety, and heart disease. In exposing the interlocking nature of oppression, medical professionals can learn ways to effectively work with communities and individuals to break apart interlocking systems of power and divest unearned privilege.

Prevention of parenting rights. Another crucial issue is the experience of legal intervention to deny parental rights. Denial of parental rights occurs across types of disabilities but occurs perhaps most fervently with intellectually and developmentally disabled people. Disability is determined to be a condition that precludes adequate parenting skills. All too often, Protective Services are called to intervene and remove children based on a parent’s disability status. Disability status is often used against disabled parents in custody battles by positing disabled people are “unfit” and as parents are not in the “best interest of the child.”

Denial of sexual freedom while warehoused in institutions. The removal of sexual freedom in institutions and nursing facilities persists to be a problem. The population of institutions and nursing facilities is as inflated as the prison industrial complex. Disabled people continue to be warehoused and used as a source of profit.

At these institutions, every aspect of one’s life is monitored and controlled, causing countless human rights violations. Additionally, in most of these settings, sexual activity is denied. While there is often a policy in place preventing such activities, accounts of rapes and other forms of sexual violence occur, often perpetuated by supposed “care” givers.

Call to action: Enacting a politic of cripsex. To enact the legal and social changes needed for disabled people to have sexual and reproductive autonomy, a politic of cripsex must be employed. The term “cripsex” uses the political power of the shortened (from cripple) and reclaimed word “crip” to express the political nature of the sexuality of disabled people. Politicizing sexual pleasure and oppression of disabled people through enacting cripsex is a powerful way to affirm our humanity.

The issues addressed in this article speak to both the need for policy and advocacy driven by the voices and needs of all disabled people. Law and policy must work along with community-based movement building to truly shift minds to embrace disability in the nation’s culture.

Certainly, all disabled people, including those in special education who are currently denied the right, should have access to sexual education and understanding that desire and pleasure are human rights that everyone should have regardless of whether linguistically and spatially ghettoized in special education or as people with “special needs.”

Recognition and expression of sexual autonomy has many health benefits, including analgesic effects, hypertension reduction, and increased relaxation. Many of these positive effects actually can counteract some of the negative impacts associated with ableism or other forms of discrimination.

ABA Section of Individual Rights & Responsibilities

This article is an abridged and edited version of one that originally appeared on page 14 of Human Rights, Spring 2011 (38:2).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/irr

PERIODICALS: Human Rights, quarterly journal; IRR E-newsletter, quarterly electronic publication.

CLE AND OTHER PROGRAMS: The Section offers a variety of cutting-edge CLE programs and teleconferences each year; for more information, please visit our website.

EVENTS: Thurgood Marshall Award Reception and Dinner, held each year during the ABA Annual Meeting; Father Drinan Service Award Reception, held each year during the ABA Midyear Meeting.

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