In Doe v. Mutual of Omaha Insurance, a Seventh Circuit case from 1999, the plaintiffs challenged lifetime coverage caps for AIDS-related conditions, which blocked patients with HIV/AIDS from accessing antiretroviral therapies and other lifesaving medical care. Doe and Smith alleged that the caps violated the public accommodations clause of the ADA. The original opinion sided with the insurance company, finding the caps permissible under the ADA, even though the defendant offered no proof they were supported by sound actuarial data. Professor Valarie Blake’s feminist judgment focuses on the plain text of the disability rights statute, relevant legislative history, and valid guidance from the Department of Justice. Blake also highlights the social and cultural context in which gay men and people with AIDS have been subjugated and stigmatized. Professor Christina Ho’s commentary contrasts the disability-rights approach the plaintiffs advanced before the court with the statutory restrictions on health insurance underwriting based on health status-related factors eventually included in the Affordable Care Act passed more than a decade later.

The Fair Work Act 2009 (Cth) also prohibits discrimination in employment based on a protected attribute such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ (s 351(1)). The discrimination on the basis of religion may be permissible in faith-based non-government schools and is discussed further in this chapter.

Emerson v. Magendantz assesses how to measure harm when people get pregnant after a negligently performed sterilization, or have disabled children after genetic counseling or prenatal testing misdiagnosed the risk. The court permitted parents to recover child-rearing costs only for disabled children, reasoning that the emotional benefits of a healthy child invariably outweigh its economic burdens. Critiquing this reasoning as a double insult to the disabled and to the importance of reproductive autonomy, the feminist rewritten opinion uses the normalcy and centrality of fertility control to women’s experience to conclude that traditional tort principles of full damages for all foreseeable harm includes child-rearing costs for healthy and disabled children alike. The accompanying commentary presents the varying judicial measurements of damages in “wrongful birth” cases, and highlights how courts have undervalued the importance of reproductive autonomy while overlooking the disparate impact of even wanted healthy children on women’s economic and educational advancement.

This chapter discusses the comparisons made in cases where there is a conflict of equality rights by reference to four cases in the Supreme Court, Bull v Hall and Preddy, the Jewish Free School case, the Gay Cake Case and the Paulley the wheel cahris on buses case. It considers what is the best way to resolve those conflcits and where and how the comparison of the rights should be made.

Ever since the federal government began comprehensively regulating immigration in the late nineteenth century, noncitizens with traits associated with disability have faced more legal barriers to immigration than noncitizens without disabilities. Federal laws excluding noncitizens on the basis of vague, health-related criteria have existed since 1882. In the early twentieth century, the US Public Health Service instructed medical inspectors to search for evidence of conditions such as bunions, flat feet, hernia, hysteria, poor eyesight, psychoses of various kinds, spinal curvature, and varicose veins.

Long perceived as sexually aberrant, persons with disabilities have made headway in recent years breaking down societal and attitudinal barriers that exclude many from leading sexually active lives. This progress has been uneven, often depending on a person’s type of disability. For example, evolving societal attitudes support the equal right of persons with physical disabilities to sexual intimacy, even if the means by which to fulfill this right (e.g., accessible social clubs) remain elusive. By contrast, persons with intellectual disabilities seeking volitional sex still face multitudinous attitudinal barriers.

In the United States, a patchwork of privacy and antidiscrimination laws protects the rights of people with disabilities: the Health Information Portability and Accountability Act (HIPAA) protects disability-related patient data as it flows from one healthcare provider to another. If the information leaks out of the healthcare system, laws such as the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) can contain it and mitigate its effects. This patchwork of laws often succeeds in preventing disability discrimination. However, emerging technologies such as artificial intelligence (AI) are rendering it ineffective.

This chapter critically analyses the concerning treatment of certain psychosocial disabilities that are deemed ‘unacceptable‘ by law and policymakers. Beyond disability, not all lifestyle choices are real 'choices'. Healthism in society can result in inequalities and such health discrimination is often linked with other attributes. As a consequence, laws have regulated how these programmes can be implemented so that the programmes do not slip into disability discrimination. This chapter is not dealing with laws and policies which seek positive health outcomes, but instead with laws and policies which seek to reduce the visible presence of certain psychosocial disabilities in society. The process of marking certain impairments as ‘unacceptable‘, implementing policies to stigmitise and exclude such conditions, is unique to people with psychosocial disabilities. The singling out of particular psychosocial disabilities for stigmatising and permitting discrimination on that attribute are designed to reduce certain forms of ability diversity in the community and to reinforce an ability apartheid.

Chapter 11 traces the development of EU legislation concerning non-discrimination on the grounds of disability. The chapter examines the key concepts of ‘direct discrimination’, ‘indirect discrimination’, the ‘burden of proof’ and ‘causation’. The chapter provides an overview of the key legislative enactment regulating disability discrimination within the EU, the Employment Equality Directive. In addition, it examines the case law of the CJEU relating to disability discrimination pre- and post-CRPD. The chapter highlights that, under the influence of the CRPD, the CJEU’s case law demonstrates a shift from the medical model to the social model of disability. Finally, the chapter reflects on the Commission’s proposal for a new non-discrimination directive.

Chapter 11 traces the development of EU legislation concerning non-discrimination on the grounds of disability. The chapter examines the key concepts of ‘direct discrimination’, ‘indirect discrimination’, the ‘burden of proof’ and ‘causation’. The chapter provides an overview of the key legislative enactment regulating disability discrimination within the EU, the Employment Equality Directive. In addition, it examines the case law of the CJEU relating to disability discrimination pre- and post-CRPD. The chapter highlights that, under the influence of the CRPD, the CJEU’s case law demonstrates a shift from the medical model to the social model of disability. Finally, the chapter reflects on the Commission’s proposal for a new non-discrimination directive.