The sexual sphere of people with disabilities is surrounded by stereotypes and misconceptions but it’s mostly absent from public debates and policies. Examining this topic through the category of fundamental rights implies the recognition of sexuality as a relevant component of humanity defined by the principles of equality, self-determination and the promotion of the person’s well-being. It means investigating the latest frontier of positive measures, unmasking the supposed neutrality of the law in the face of situations of injustice.
This book explores some of the connected legal issues, such as sexual and reproductive health, forced sterilization, agency in the sexual sphere and sexual assistance. These questions are addressed from the perspective of comparative constitutional law, without forgetting the crucial role of international law. The book adopts an interdisciplinary approach, by creating a dialogue between legal knowledge and categories developed in social sciences, specifically sociology and political philosophy.
Carla Maria Reale is a teaching fellow at the Faculty of Law of the University of Trento.
From Concluding Remarks (pagg. 353-357)
On the need for a set of instruments and the role of law as an agent of social change
In conclusion, to address the topic of sexuality and disability means embracing the irreducible complexity of disability itself, which has a strong social dimension but also an embodied matrix, and which comes in different forms: visible, invisible, permanent, temporary, acquired or not, etc.; and the complexity of sexuality, a field where social, personal and legal significances meet and often collapse. And, again, the social, individual and legal density we find when looking at a person in whom these two universes are reunited together, with their many possible intersections (in terms of gender, class, race, sexual orientation etc.).
We are looking at an intricate yet fascinating tangle, and that tangle is us, all of us. Jurists should not be scared by this complexity, but we need to be prepared and open to abandoning the perspective of definitive solutions and monolithic answers. These should be replaced by the idea of a continuous dialogue with civil society, the adoption of soft instruments and the development of best practices, in a democratic exercise.
Moreover, to a complex phenomenon, law might answer with a set of instruments. In this sense, we can affirm that sexual assistance alone, even if designed in accordance with our constitutional framework and in coordination with the existing law, would not be an effective tool. On the contrary, if this is accompanied by many other, even smaller, tools and policy, then it could be a proper contribution to a systemic effort by the legal system to provide an affirming culture of sexuality for people with disabilities.
To better develop this point, an analogy with assisted suicide, mutatis mutandis, might be useful. Assisted suicide alone would not be an efficient tool to grant self-determination in the terminal phase of life. Assisted suicide, without tools aimed at granting the respect of the right to refuse medical treatments and the principle of informed consent and its concrete derivation – recently formalized by the law – such as advance directives on treatments (Direttive anticipate di trattamento) or the co-designed plan on medical treatment (Pianificazione condivisa delle cure), would be an empty shell. It is no coincidence that such an audacious decision by the Constitutional Court as n. 242/2019 came after Law 219/2017. A similar decision would not have been possible without Law 219/2017. Similarly, sexual assistance without the implementation of inclusive sex education, sexual counselling services, training for medical professionals and social workers, policy to grant access to quality sexual health services and tools to grant assisted decision making in the field of reproduction and sexuality, is condemned to be ineffective and rejected by society.
The profound social nature of the discrimination and oppression of people with disabilities in the field of sexuality and the need to re-shape the social perception of disability and in general to question the liberal paradigm of the individual and their standard of productivity, beauty and autonomy, have already been mentioned. The importance of intervening on the social perception on disability is also recognized by the CRPD, which states at article 8 the need for states to combat stereotypes, prejudices and harmful practices against people with disabilities, intervening with social campaigns, in media representation and through education. If the biggest challenge in this field is related to cultural and social change, jurists should probably wonder what role law should play. The whole work was based on the idea that the false neutrality of law needs to be unmasked and addressed by recognizing how law itself is permeated by the social and cultural understanding of phenomena and shaped by power structures. This view is inherently political, coming from the desire to alter a fundamental social relationship characterized in terms of oppression (usually expressed through dichotomy such as female/male, normal/abnormal, black/white and so on). In order to overturn this framework, one of the methodologies proposed is the reconfiguration of the relationship between theory and procedure, which should be aimed at offering practical solutions to real-life questions and increasing the proper representation of human complexity.
It is within this broad landscape that the law can find its place in the field of sexuality and disability: by not forsaking its role in “orienting” society and pursuing social justice. The law can find its role by appealing to its symbolic and transformative capabilities. This means recognizing that a broader social change towards equality can pass by law affirming positively the existence and the agency of people with disabilities as sexual beings in society: a law that, starting from the questions arising within the social fabric and from the materiality of life, can actively contribute to social change; a law anyone could look at and feel represented and recognized in flesh and blood.
Open access book published under a CC-BY-NC-ND 3.0 licence.