Credit: CreativeCommons / Catherine Oakley.
There is a constant flow of discrimination against people with disabilities. That river is tucked away, far from most Americans’ consciences. Maybe when there’s a p.r.-heavy milestone, like the 25th anniversary of the Americans with Disabilities Act happening later this month, people
pay attention. The rest of the time, Dara Baldwin tells me, people tend to forget.
Baldwin has been working professionally in the field of disability rights since 2009, but her advocacy work began when she was much younger, growing up with family members who had disabilities. Her maternal grandmother had rheumatoid arthritis, and used a wheelchair from age twenty two onward. Seeing the challenges her grandmother faced, Baldwin decided to dedicate her career to advocating for disability rights. Now, she works as a public policy analyst at the National Disability Rights Network (NDRN), finding legislative solutions to the kinds of problems her grandmother faced on a daily basis.
Though Baldwin’s grandmother never lived to see it, the ADA completely changed the trajectory of disability rights in the United States. Born out of the idea that people with disabilities are not less abled but simply differently abled, the Act parallels the Civil Rights Act of 1964 in the breadth and scope of its impact. In essence, the ADA functions as its own civil rights act for people with disabilities.
Consisting of five sections called “titles,” the ADA details in Title III what services (“public accommodations”) must be provided to people with disabilities, and by whom. Though the title is broad and complex, this line captures its overarching intent: “Public accommodations must…make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration would result in the nature of the goods and services provided.”
The ADA specifies the following private establishments as “places of public accommodation,” or places that must provide reasonable means of accessibility to people with disabilities: restaurants, hotels, theaters, convention centers, retail stores, shopping centers, dry cleaners, laundromats, pharmacies, doctors’ offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, health spas, and bowling alleys. Commercial facilities “whose operations affect commerce” must also provide public accommodations. Private clubs, too, fall under the law when their facilities are made available to customers or patrons of a place of public accommodation.
The list seems exhaustive, going so far as to specifically mention health spas as falling under the scope of the law. And yet, there remains one glaring omission in the generally inclusive spirit of the law:
“Entities controlled by religious organizations, including places of worship, are not covered,” the Act reads, simply but forcefully. A daycare run by a religious entity like a church, mosque, or synagogue, therefore, has the legal license to discriminate against people with disabilities. This poses a problem for the disability community, as some religions view disabilities as a blemish from God and people with disabilities as blemishes themselves.
“We’ve had cases of daycare services who won’t take children with disabilities or parents with disabilities,” Baldwin says, also citing a common but illegal practice among taxi drivers to ignore people with service dogs because the drivers’ religion considers dogs unclean.
The ADA, then, acts as a sort of dam for discrimination against people with disabilities: it blocks much previously legal discrimination, requiring larger bathroom stalls for people with disabilities like Baldwin’s grandmother, for instance. But the dam also has a few holes in it, permitting systemic discrimination against people with disabilities to flow through. Discrimination under the guise of religion is one such hole–a gaping one.
In Sardinia, Ohio, Cathy Inglis relies on Tiny, her aptly named service dog, to navigate a world that she can’t see. But when she recently tried to get on a Sunday school bus to the Bible Baptist Church with her dog and grandson, both six years old, the church denied her service. Citing liability concerns with Tiny and children on the bus, the church’s pastor said Inglis and Tiny were welcome inside the church but not aboard the bus.
“It’s just I don’t want the dog on the bus around those children in those close quarters because a dog is a dog no matter how well they are trained and a dog might nip a kid and then I’ve got a parent upset and a lawsuit,” the pastor said.
The ADA bars non-religious entities from discriminating in this way against people with disabilities, but as a religious entity, the Bible Baptist Church’s actions were perfectly legal, even though the pastor cited secular concerns rather than religious beliefs as justification.
If the ADA created an admittedly flawed dam, the rapid and widespread adoption of the Religious Freedom Restoration Act (RFRA) on the federal and state level broke the dam for good, opening a floodgate of discrimination against people with disabilities.
Originally passed in 1993 on the federal level (and spearheaded by two of Congress’ liberal lions, Chuck Schumer and Ted Kennedy) RFRA states that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Passed unanimously in the House of Representatives and nearly unanimously in the Senate, the law expanded people’s ability to exempt themselves from following laws they claim violate their religious beliefs.
Though subject to numerous legislative and court battles, RFRA today remains widely accepted. Since its passage, RFRA has proliferated on the state level: as of 2015, twenty one states currently have Religious Freedom Restoration Acts. This legislative year alone, seventeen states introduced legislation to create or alter a state religious freedom restoration act, according to the National Conference of State Legislatures.
Indiana was one such state. This spring, its battle to enact a Religious Freedom Restoration Act crossed state lines and gained national attention. Unlike the original, strongly bipartisan federal legislation, Indiana’s law was introduced and largely supported by Republicans. Though they share the same name, Indiana’s RFRA law differs significantly from its federal counterpart. Most notably, Indiana’s law explicitly protects the exercise of religion for all entities, not just religious ones. This means that any for-profit corporation could deny Inglis and her service dog, Tiny, access to a bus if the dog violates the corporation’s owner’s religious beliefs.
In essence, RFRA exploited the existing holes in ADA legislation and created a plethora of new ones, eventually causing the entire dam of protections for people with disabilities to capitulate. RFRA legalizes discrimination against people with disabilities under the most tenuous of religious justifications.
In response to RFRA, people in Indiana and beyond questioned the truth behind the “Hoosier hospitality” adage of inclusivity that Indianans cling to and champion with pride. Their opposition, however, had nothing to do with how the law would affect people with disabilities. Instead, the majority of the backlash against RFRA in Indiana centered on how the legislation would impact people in the LGBTQ community.
As the Executive Director of the CANDLES Holocaust Museum and Education Center in Terre Haute, Indiana, Kiel Majewski works on preventing discrimination for the living-
“As we saw in the Holocaust, so many types of people were targeted, dehumanized, and ultimately murdered because of their religious affiliation, their sexual orientation, disability, or political affiliation,” Majewski said.
Because of his familiarity with discrimination, Kiel says he immediately noticed “huge red flags” when he heard people talking about the Religious Freedom Restoration Act in similar terms.
Majewski contacted his local representative, State Senator Scott Schneider (R-Indianapolis), who also happened to be one of the bill’s co-authors, to better understand the intent and consequences of the bill.
The two had an extensive series of interactions and conversations on RFRA, ranging from its effects on Obamacare to the LGBTQ community, and yet, Majewski said, “if the issue of discriminating against people with disabilities came up at all, it was just for him to bring it down right away and say no, that’s not what we’re concentrating on at all.”
In Indiana, RFRA appears to have been intentionally written to permit discrimination against members of the LGBTQ community. The law also made it easier to discriminate against people with disabilities. It seems feasible, however, that this consequence was unintentional, simply an unfortunate byproduct of the intentional discrimination against the LGBTQ community. But that doesn’t make it any less harmful. Instead, it speaks to a broader trend where the needs of people with disabilities are systematically and pervasively overlooked, by folks on both sides of the aisle.
Even among his friends and acquaintances that opposed the Act, Majewski says, the impact of the law on people with disabilities was never cited as reason for concern or opposition, or was only brought up in passing.
“That view was never represented,” Majewski said. “And that’s unfortunate.”
In contrast, he added, “the LGBTQ side of the debate was very vocal as they should have been…and a lot of people jumped on board with that.” Majewski thinks that some people may have viewed the plight of the people with disabilities as minor in comparison to the threat of discrimination against LGBTQ community. This may have led to the lack of awareness and outrage over discrimination against people with disabilities.
To be clear, Majewski finds that logic ridiculous.
“That gets down to the problem of how we think about society in terms of mass numbers and percentages,” he said. “The reality is we ought to make our institutions accessible all the way down to the most accessible level. If there’s one person who has a problem or who can’t access a service, then we’ve done it wrong and we need to re-do it. Society still hasn’t learned the fundamental lesson from the Holocaust: how to create a society that is inclusive of everyone.”
Indeed, the way in which the reaction–both in opposition and in favor–to Indiana’s RFRA legislation utterly ignored disability rights is indicative of a larger, more deeply entrenched pattern of discrimination against people with disabilities. Widespread if not always immediately apparent, discrimination against the disability community occurs outside religious organizations too.
For Baldwin, the public policy analyst at the National Disability Rights Network, the exclusion of people with disabilities from conversations on the leading social justice issues of the day exemplifies this point.
Take the growing conversation about campus sexual assault for example. According to Baldwin, the relatively recent Campus SAVE Act, designed to protect students on college campuses from sexual assault, “completely leaves out our students with disabilities.” And yet, people with disabilities deserve the same consideration and protection from the law as everyone else: students with disabilities, men and women alike, are sexually assaulted at alarmingly high rates.
In addition to sexual assault prevention, Baldwin cites LGBTQ equality and the Black Lives Matter movement as the biggest social justice issues of our time. But, she says, you’ll never see a conversation around how people with disabilities are impacted by sexual assault, homophobia and transphobia, or racism, even though “people with disabilities are all of those things.”
The problem isn’t simply a lack of consideration; it’s also about a lack of representation. “In the Black Lives Matter movement there are many black people with with disabilities fighting, but you don’t hear about them,” Baldwin said. “You don’t see them.”
Restaurants denied Baldwin’s grandmother service not only because she used a wheelchair, but also because she was black. These issues–racism, sexism, homophobia, and ableism–are all intertwined and interconnected. And yet, our discussions and actions often don’t reflect their intersectional realities.
“It’s not because we haven’t tried,” Baldwin said.
Twenty-two year-old Nate Higby graduated just two months ago from Whitman College in Walla Walla, Washington after receiving a bachelor’s degree in sociology. Working with the American Association of People with Disabilities (AAPD) and Rep. Cathy McMorris Rodgers (R-Washington) for the summer, he uses a cochlear implant to help him hear and identifies as a part of the disability community.
At Whitman, he said, he found himself frustrated with the lack of conversation surrounding ableism and issues related to disability, both mental and physical:
“I think there needs to be more discourse about disabilities in general. It needs to have a larger place in our discourse and it’s hard because obviously racism and sexism–we hear about those a lot and obviously they’re really pressing issues–but ableism is also a really pressing issue and we don’t hear about it. If people are discriminated against because of their disability it’s going to keep going on because there’s no conversation.”
Now, twenty five years after the passage of the ADA, the river of discrimination against people with disabilities continues to flow. The river is human-made: we created it, designed the very contours that sweep people with disabilities to the outskirts of society. But because we made it, we can also stop it. On the individual level, by using people-first language and calling out discrimination when we see it, and collectively, by prohibiting the use of religion as justification for discrimination and promoting education and awareness, we can–and must–start rebuilding the dam.
A version of this article first appeared in Generation Progress.