The Harvard Law School Center on the Legal Profession and the Harvard Law School Project on Disability held a presentation Thursday on seeking systemic change for people with disabilities through litigation. Defining such actions as "cause lawyering," a panel of four professionals explored the work of advancing rights and freedoms for people with disabilities.
The actions follow the mission statement of the Convention on the Rights of Persons with Disabilities, which was adopted by the United Nations in 2006. The convention intends to shift the view that people with disabilities are "objects" of charity, medical treatment and social protection toward a view that they are "subjects" with rights and freedoms.
María Soledad Cisternas Reyes, a Chilean lawyer and U.N. special envoy of the secretary-general on disability and accessibility, spoke of enacting change through trials. Even in losses, court cases can still lead to change for people with disabilities, she said.
One such example came in 2005, when she represented a blind woman who was denied entry to vote with her assistant, which their suit claimed was a violation of the woman's constitutional and international right to vote. The Chilean court declared itself unable to hear the matter because there was a legal vacuum around the question.
Subsequently, guidelines for an amendment were drafted by advocates to eliminate barriers for people with disabilities, including training electoral service officers in how to handle such situations. In 2007, the amendment was enacted, recognizing the right to an assistant.
"Even a negative judgment for persons with disabilities can move the public opinion against the adverse sentence," she said.
Such cause lawyering does necessitate balancing the needs of the clients with the desire to cause systemic change on behalf of disabled people. János Fiala-Butora, a lecturer at the National University of Ireland Galway's Centre for Disability Law and Policy, spoke on the "difficult decisions" that emerge when taking into account "different interests."
"Sometimes the client's goals and the larger strategic goals can be in alignment, and that's a very good situation," he said. "Often they are not, and so cause lawyers have to somehow balance the goals of the individual client against the goals of the movement."
An example from his work involved ensuring the inclusivity of people with disabilities at Bulgarian schools. While the litigation was successful in helping children who were excluded from the schools outright, Fiala-Butora had to make a decision early on regarding whether to include others who were not properly included or to narrow the focus of the case to increase his chances of winning.
The case could have been broadened to include other children with disabilities who were subjected to segregated boarding schools in the country. However, in order to best push the cause forward, he decided to handle the issues in separate cases rather than all together in one.
"From the perspective of clients who were not included in the litigation, it was a very hard decision," he said. "There is an implicit promise here from the cause lawyer that we will take follow-up cases which will help the others as well."
Elizabeth Kamundia, assistant director of the Kenya National Commission on Human Rights, spoke on taking advantage of relatively easier objectives while advocating broadly for rights. In 2020, the country's president set up a task force on mental health in the wake of a series of issues and reports highlighting the dire situation of mental health care in Kenya.
The task force subsequently presented recommendations, including the decriminalization of attempted suicide. According to Kamundia, criminal penalties disproportionately target people with psychosocial disabilities, and their very existence has a negative effect on people seeking health care access. The commission found an "unlikely ally" in the Kenyan psychiatry association, which agreed with the task force's position on attempted suicide.
Among the broad range of recommendations, Kamundia and the commission decided to start by participating in the petitioning to decriminalize attempted suicide.
"We said, let's begin here. Let's go with this less contentious, so to speak, issue," Kamundia said of the ongoing case.
When asked about participation of people with invisible disabilities or chronic illnesses, Sanjay Jain, a principal at ILS Law College in India, said all people with disabilities "need to team up" in order to advance the cause.
"This engagement can produce much more enabling doctrines, much more enabling standards," he said.
--Editing by Rich Mills.
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