We are all probably familiar with the universal logo for a person with a disability: the outline of a stick figure in a wheelchair. Fewer people may be aware of a variation on this logo, which shows the outlined figure leaning forward and with three lines behind the rear wheel of the wheelchair, designed to indicate movement and to emphasize the person’s agency. Both logos suggest, if not demand, that people think of disabilities as based on physical impairments.
What these images do not convey—and what perhaps no image can—is that the category of “disability” includes people with mental disabilities. These individuals are not necessarily identifiable by external features or their connection with and use of physical equipment such as a wheelchair or a white cane. Many people refer to these individuals (and certain others) as having “hidden” disabilities, or, to use terms I prefer, “non-evident” or “non-obvious” disabilities. Whatever term is used, however, the distinction between physical and non-evident disabilities contributes to the marginalization of people with mental disabilities within the general category of people with disabilities. This marginalization has severe consequences for people with mental disabilities and the rights they seek to vindicate.
This marginalization is not limited to symbolic representation. Not only are people with mental disabilities often unseen, but the stigma associated with these disabilities can lead to forms of discrimination that are insidious and profoundly damaging. Many people without disabilities fear people with mental disabilities because they feel unsettled if not threatened by their behavior. For example, James Barron in his December 2024 New York Times article “The Reverberations of the Daniel Penny Verdict” discusses the recent acquittal of Daniel Penny, who used a chokehold to subdue Jordan Neely, a Black subway rider with mental illness, causing his death. Similarly, media coverage of mass shootings and other atrocities erroneously links mental illness with dangerousness to others. In fact, there is little support for the proposition that mental disability is associated with dangerousness to others. People with mental disabilities are more likely to be dangerous to themselves if they demonstrate any danger. Media representations of mental disability exaggerate the “otherness” of these people. These misrepresentations may cause individuals to question whether people with mental disabilities are entitled to the respect and dignity that they would unquestionably accord to people with physical disabilities.
The stigma associated with mental disabilities also can affect the attitudes and actions of people with mental disabilities themselves. In some sub-cultures, treatment for mental disabilities may be discouraged as unlikely to be helpful. Misdiagnosis of people of color with mental disabilities exacerbates the problem and may reinforce the trepidation people with mental disabilities feel toward seeking treatment.
The above constraints on recognition of the legitimacy of mental disability are especially concerning because the legal protections for people with disabilities explicitly cover people with both physical and mental disabilities. Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA) specifically define disability to be a “physical or mental impairment that substantially limits one or more major life activities of an individual.” And yet, questions about whether the ADA even applied to people with mental or psychiatric disabilities caused the Equal Employment Opportunity Commission in 1997—seven years after passage of the ADA—to have to issue its “Enforcement Guidance on the ADA and Psychiatric Disabilities,” answering very basic questions about these statutes’ coverage of people with mental disabilities.
Questions about the legal rights of people with mental disabilities are particularly ironic in light of the extensive discrimination this group has suffered in our society, discrimination that in many ways surpasses that which people with physical disabilities experience. Historically, states subjected many people with mental disabilities to unnecessary institutionalization in large, congregate mental institutions where they received little or no treatment and were often abused mentally and physically.
Since 1954, the health care system’s treatment of choice for many people with mental disabilities has been psychotropic medications, many of which come with side effects that are debilitating and harmful. As many states have reduced the size of or closed large institutions in recent years, too many people with mental disabilities have not returned to the community to live productive lives but rather have found themselves in other institutions, such as nursing homes, inadequate housing, or unhoused. In too many cases, people with mental disabilities who in the past would have been institutionalized in a psychiatric institution now run afoul of the criminal legal system and wind up serving time in jails or prisons. Indeed, in 44 of the 50 states, jails and prisons serve as the primary mental health providers. In Cook County, Illinois, alone, staff have diagnosed approximately one-third of its 6,000 inmates with a mental illness. The quality of treatment mentally ill inmates receive in prisons or jails is often substandard and inadequate.
Police interactions with people with mental illness are often problematic. As police arrive at a potential crime scene and attempt to obtain control of the situation—perhaps by raising their voices and otherwise acting in an aggressive manner—the person with a mental disability may not react in a manner the police deem to be compliant with their directives. This mismatch can lead police to use excessive force, potentially resulting in serious injury to the person with mental illness or, as in some high-profile cases in recent years, their death. The intersectionality of disability and race, particularly African Americans and Latinos, creates an especially potent formula for tragic misunderstanding.
Too often, people with mental disabilities must justify their eligibility for programs or services that others take for granted. For example, concerns of family members or others about whether the person is able to make appropriate decisions about their lives can lead them to file guardianship petitions, which courts too often are eager to grant. The result is that the autonomy and self-determination of the person with a mental disability may be needlessly limited. Although there is a growing movement to explore less restrictive alternatives to guardianship, such as supported decision-making or peer support, the fact remains that plenary or general guardianship continues to be overused for people with disabilities, especially those with mental or developmental disabilities.
People with mental disabilities who attend academic institutions or participate in the workforce face additional obstacles. Students with mental disabilities who need reasonable modifications in university or graduate school programs to obtain equal access to them—modifications to which they are entitled by statute—may face significant barriers in persuading school officials that they have a “real” disability that would justify receiving the requested accommodations. They can face skepticism from authorities who are concerned that they may be faking or exaggerating their illness to attain an unfair advantage in the program. Such concerns, which also arise in the jail and prison context described above, are part of what Doron Dorfman has labeled the “disability con”—society’s fear that people with disabilities are engaging in fraudulent behavior (or, in the prison context, “malingering”) to secure some advantage or avoid otherwise legitimate punishment. And, in some cases, institutions of higher learning have chosen to dismiss students with disabilities facing mental health distress rather than offer them treatment options, medical leave, or other non-punitive alternatives.
For law students with mental disabilities, the accommodation challenges they face in school do not disappear upon graduation; if anything, they become more serious. In addition to having to persuade sometimes skeptical bar admission personnel of their need for accommodations (and being required to produce excessive documentation of their disability that can be expensive and time-consuming to obtain), the student with mental disabilities may be prevented by an intrusive character and fitness inquiry from being admitted to the bar in a timely fashion or even admitted altogether. Various American Bar Association entities and other organizations have engaged in effective advocacy to persuade bar admission authorities to focus on recent conduct rather than diagnosis or treatment, but too many states continue to see the presence of a mental disability as indicative of a character flaw and as presenting a risk to clients.
People with disabilities are much less likely to be employed than people without disabilities, and people with mental disabilities are especially likely to experience barriers to obtaining and retaining a job. Even though the kinds of reasonable accommodations people with mental disabilities need in the workplace are frequently of minimal or no cost, employers often resist making the kinds of adjustments in work schedules or environments that workers with mental disabilities require. There are many ADA cases in which a long-time employee with an exemplary employment record discloses a disability such as bipolar disorder to a supervisor who then begins to downgrade their evaluations and harass them to the point that they resign or are terminated.
This country’s severe lack of affordable housing can hit people with mental disabilities especially hard and contributes to the high percentage of unhoused people who have mental disabilities or experience substance use disorders. According to one study, cited by the U.S. Supreme Court in City of Grants Pass v. Johnson (2024), 78 percent of unhoused people may have mental disabilities. But rather than implement housing-first, assertive community treatment, or mobile crisis intervention team approaches, some jurisdictions have sought to make it easier to involuntarily commit these individuals, thereby choosing punitive interventions over humane (and more effective) ones.
Society is making strides toward a greater understanding of people with mental disabilities. More of such individuals, including those in prominent positions in government, sports, or the entertainment industry, have become comfortable in disclosing their disability to the public. Such disclosure can empower other people with mental disabilities to strive for educational, employment, and social goals that are within their reach. But as this article has shown, we still have a long way to go before we can say that people with mental disabilities have achieved equal recognition under the law and in society.
