To conduct a meaningful evaluation, it is essential to identify which persons with disabilities may be affected by a particular law and how. In some cases, laws are specifically targeted to persons with disabilities, or some particular persons with disabilities. The Ontario Disabilities Support Program Act and the Social Inclusion Act are examples of laws of this type. As well, persons with disabilities are of course affected by laws of general application, just as are their peers who do not identify as having a disability. In some cases, laws of general application may affect persons with disabilities or some group of persons with disabilities differently or disproportionately compared to others. This section considers how specific instances of the ways in which laws may affect persons with disabilities may interact with the principles.
Applying the Principles to Step 4
Note: “Law” here refers to law, policy and practice as appropriate.
There are a plethora of laws that specifically target persons with disabilities – some targeting persons with disabilities in general, and others that target some particular group of persons with disabilities. These laws generally include definitions or criteria setting out who is affected by restrictions or has access to rights or entitlements in the law. These criteria or definitions must be carefully scrutinized for stereotypical or ableist assumptions or attitudes that violate the principle of dignity and worth. The principles of responding to diversity and of participation and inclusion also indicate that the laws should be scrutinized to ensure that they appropriately respond to the real needs and circumstances of the range of persons with disabilities.
As persons with disabilities are often invisible in the law development process, the effects on them of a particular law of general application may not be identified or considered. This may be especially true for some groups of persons with disabilities who are particularly marginalized, such as Aboriginal persons with disabilities, or persons with multiple disabilities. The principles of participation and inclusion, and of responding to diversity require that persons with disabilities, in all their variety, be carefully considered whenever a law of general application is designed or reviewed to ensure that it takes into account their particular needs and circumstances.
QUESTIONS FOR CONSIDERATION IN APPLYING THIS STEP
1. a. Has consideration been given to the potential application of inclusive design approaches to the issue?
b. Has consideration been given to whether the principles, and thereby substantive equality for persons with disabilities, will be better advanced by a law of general application with appropriate accommodation as required, or by law targeted specifically to persons with disabilities?
Laws Targeted to Persons with Disabilities
2. If the law uses disability-based eligibility criteria, has the law been appropriately targeted? For example:
a. How does the definition of disability recognize the socially constructed barriers that persons with disabilities face in the particular area of life that the law addresses?
b. Are the criteria based on ableist assumptions or negative attitudes towards persons with disabilities or particular groups of persons with disabilities?
c. Has care been taken to ensure that the experiences of those with disabilities that are less recognized or understood are taken into account?
d. How do the criteria recognize the different experiences of disability depending on the nature of the life course, the nature of the disability or intersecting identities?
3. If the law uses non-disability-based eligibility criteria, has the impact on persons with disabilities, or particular groups of persons with disabilities, been taken into account? For example:
a. If the law uses age-based criteria, how do the criteria take into account the different ways in which disability may intersect with the experience of aging, such as, for example, the particular experiences of those who age with a disability?
b. If the law uses income-based criteria, how do the criteria take into account the disproportionate experience of low-income among persons with disabilities, and the particular barriers experienced by low-income persons with disabilities?
Laws of General Application
4. Does the law appear to be one of general application? If so, taking the circumstances of persons with disabilities into account, might it affect persons with disabilities differently or in greater numbers than the general population?
5. If the law is one of general application, might it affect some particular groups of persons with disabilities differently or in greater numbers than the general population? For example:
a. Does the law have a significant effect on persons who live in low-income? If so, given the disproportionate number of persons with disabilities who live in low-income, what might be the effect on this group?
b. If the law has a different or disproportionate effect on persons with disabilities, has consideration been given to how this might differ for men and women with disabilities?
c. If the law has a different or disproportionate impact on persons with disabilities in general, has consideration been given to how that impact might differ for persons with different disabilities?
d. Has consideration been given to how the law might affect persons with disabilities who are from historically marginalized communities, such as Aboriginal or racialized persons with disabilities, or those who are LGBT or newcomers to Canada?
e. Has consideration been given to how the law might affect persons facing barriers related to their family or marital status, area of geographic residence (such as in rural or remote areas), age or socio-economic status or other factors?
6. If the law does affect persons with disabilities or some group of persons with disabilities differently, how does the law address that differential impact?
APPLYING THE FRAMEWORK: EXAMPLES OF THE RELATIONSHIP BETWEEN THE PRINCIPLES AND THE SCOPE OF THE LAW
Laws of General Application and Parenting with Disabilities
Persons with disabilities are too often conceptualized as dependents and recipients of care, and their roles as providers of care and support to others are often overlooked. As one example, the needs and circumstances – indeed, the very existence – of parents with disabilities is often overlooked. Laws, policies and programs that apply to parents may not take into account the needs of those who have disabilities. For example, childcare services and even schools may not be physically accessible, so that parents with disabilities may have difficulty accessing appropriate services for their children. On the other hand, laws, policies and programs for persons with disabilities may not take into account their roles as parents. For example, para-transit programs may not allow parents with disabilities to have their children accompany them when using these services, or homecare services may provide housekeeping supports only for the needs of the parent with a disability and not the child.
This lack of visibility for parents with disabilities, based as it is on stereotypes about parenting and about persons with disabilities, has its roots in a lack of dignity and respect for persons with disabilities and a failure to recognize diversity and individuality. It has the effect of reducing their inclusion and participation, and insofar as it impairs the ability of parents with disabilities to fulfil their responsibilities and disadvantages their children, raises concerns related to the principle of membership in the broader society.
Targeted Laws: Eligibility Criteria under the Ontario Disability Support Program
The Ontario Disability Support Program (ODSP) is a social assistance program targeted to those with a disability who have little available income or assets. It is separate from Ontario’s general social assistance program (Ontario Works). Those who meet the financial criteria for Ontario Works and also meet the definition of disability within the ODSP Act qualify for a range of income and employment support benefits. There is a stringent and multi-layered process for determining eligibility for ODSP.
When the ODSP Act was drafted, it explicitly excluded persons whose impairments and primary restrictions resulted solely from addictions to drugs or alcohol, despite extensive expert evidence that established substance abuse as a mental disorder which is often experienced together with other aspects of mental illness. This exclusion was challenged through the courts, and was eventually overturned. The Ontario Superior Court (in a decision upheld by the Court of Appeal) noted that making distinctions about eligibility based on “assumed or unjustly attributed characteristics” resulted in the denial of “essential human worth”, and found that the distinction discriminated on the basis of disability. In other words, this eligibility criterion for this particular program was based on negative attitudes towards this group of persons with disabilities and violated the principle of dignity and worth.
See LCO Commissioned Research Paper, L. Patton et al., A Principled Approach: Considering Eligibility Criteria for Disability-Related Supports Programs Through a Rights-Outcome Lens (2010)
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