In this short piece, I argue that some tort doctrines that strive to present themselves as objective and constant place both members of the LGBTQ2+ community and individuals with disabilities due to psychiatric injuries in a precarious position.
There are many doctrines and concepts in tort law that are assessed using objective standards, with the ‘reasonable person’ in negligence, ‘right-thinking members of society’ in defamation, and ‘ordinary fortitude’ in psychiatric harms being a few examples. These doctrines aren’t objective just in the sense that courts use them to examine standards of conduct and behavior from a societal perspective rather than from that of the particular plaintiff or defendant. They’re also objective in the sense that they purport to represent a certain truth about the world – this is how “normal” or “ordinary” individuals ought to be.
Yet, they’re contingent and evolving. If the man on the Clapham Omnibus should be understood as an anthropomorphic conception of justice, as Lord Radcliffe argued in Davis Contractors Ltd v Fareham Urban District Council, it must be understood in its context. When discussed in the early 20th century, the man on the Clapham Omnibus was a middle-class middle-aged man. Men of this group were deemed as right-thinking members of society, who would deem LGBTQ2+ individuals as honor-less deviants, and those with debilitating psychiatric injuries that didn’t arise from a physical injury as lacking the required ‘customary phlegm’. As the man evolved into the reasonable classless, genderless person, it became capable of including and representing minorities. Still, as suspicion of both communities remains entrenched in legal and social attitudes, the objectivity of objective doctrines appears contingent, and inclusivity is constantly at risk.
–Haim Abraham, UCL Faculty of Laws
Over the past few decades, scholars and activists have examined concepts that cross over from discourse related to queer individuals to discussions about the disability community: “pride” and “coming out.” Although many are familiar with LGBTQ pride, fewer have heard about how an affirmative model of disability has promoted a positive and proud disability identity among many. The concept of coming out of the disability closet, specifically relevant to those with less apparent disabilities (such as mental disabilities or chronic illness), has also been widely discussed, with dilemmas regarding when and where it is appropriate to take disability public proliferating.
In previous research, I pointed out the clash between a proud disability identity and the image the social insurance law requires a claimant to project to successfully receive benefits. A similar tension exists in torts law. The need to present disability negatively as a harm and a damage, such as in wrongful birth and wrongful life cases, stands in stark contrast to contemporary views of disability that people with lived experiences hold and, thus, in opposition to seemingly objective legal concepts. The meaning of injury for a disabled plaintiff is far more nuanced, that is, alongside pain and suffering, disability can also be a life enriching experience or at least an important part of a person’s identity. A disabled person might therefore be grappling with the need for cure. The need to present an ableist self-image in court, and to communicate to counsel the complexity of the disability experience, to win the case and receive damages to cover health expenses and ensure a dignified life is a dilemma for many plaintiffs and a Gordian knot to disability legal studies scholars.
–Doron Dorfman, Syracuse University College of Law
Reply, by Kyle Velte, University of Kansas School of Law
Professors Abraham and Dorfman bring together important themes of social, legal, and distributional justice as experienced through tort law by members of the LGBTQ2+ community and individuals with disabilities. As they point out, while tort law professes to advance the dual goals of compensation and deterrence, when it comes to people with disabilities and LGBTQ2+ people, attainment of these goals often is marred by explicit and implicit individual biases as well as systemic, doctrinal barriers. I posit that these important contributions pack even more theoretical and practical punch when we look backward to history. Situating Abraham’s and Dorfman’s contemporary critiques of tort law vis-à-vis LGBTQ2+ people and people with disabilities in historical context provides opportunities to connect experiences and glean lessons from past struggles.
Professor Abraham rightly points out that legal doctrines such as the “reasonable person” standard are contested and contingent notwithstanding that many view then as natural, normal, and objective. This reality, in turn, destabilizes tort doctrines for LGBTQ2+ plaintiffs, whose tort claims judges and/or juries may adjudicate with a good dose of implicit or explicit anti-LGBTQ2+ bias cloaked in the language of reasonableness. Here, the historically contingent nature of bigotry might provide instructive insights. As I and others have pointed out in other work, in the context of LGBTQ2+ social justice work, past normative and legal positions regarding racial civil rights—namely opponents of racial desegregation relying on religious liberty and theological arguments in the 1960s—are today, in hindsight, considered “bigoted” notwithstanding that they were considered mainstream by many at the time they were made. These same arguments are reproduced in contemporary debates about LGBTQ2+ equality and religious liberty—namely wedding vendors relying on religious liberty and theological arguments to justify turning away same-sex couples in violation of state public accommodations laws—but are largely framed in a way that eschews and abhors the “bigoted” label in favor of characterizing such justifications as sincerely, decent, and honorable. This specific instance of the same argument made in different eras cast in vastly different light depending on the historical moment in which one considers the argument illustrates the contingency and instability of bigotry as a concept. Remembering the historically contingent trajectory of bigotry and its component parts, bias and animus, may be helpful when considering Abraham’s justifiable concern about the interplay of anti-LGBTQ2+ bias and the (seldom acknowledged) contingent nature of purportedly objective tort doctrines.
Professor Dorfman’s description of the emergent “pride” movement within the disability community, as well as his discussion of mixed opinions within that community on the issue of coming out as a person with a disability is reminiscent of a prior trend by some LGBTQ2+ plaintiffs to assert privacy tort claims, which illuminated tensions between embracing their inherent dignity by coming out and staying in the closet and staking claims to be made whole from injuries inflicted by law and society, both of which are largely homophobic and transphobic. Dorfman thus builds a meaningful bridge between these two communities, as well as between the present and the past; reflection on these connections may allow disability rights advocates to glean lessons from past LGBTQ2+ rights struggles and suggests a possibly fruitful coalition-building potential between these two movements in the area of tort law.
Abraham and Dorfman thus rightly remind us of continuing social, cultural, and political bias against LGBTQ2+ people and people with disabilities; these biases become entrenched in and thus reflected by legal doctrines. And while their critiques are strengthened by looking backwards in history, they also are an important part of the contemporary movement toward what Martha Chamallas calls a Social Justice Tort theory—a theory that deploys a collection of interdisciplinary approaches (such as critical race theory, feminist legal theory, queer theory, and critical disability theory) to pull back the curtain on tort law’s alleged neutral objectivity. Social Justice Tort theory “starts from the premise that tort law reflects and sometimes reinforces systemic forms of injustice in the larger society.” It contends that tort law’s compensatory goal can only be met when the doctrine takes into account systemic inequalities and disparities.
As Chamallas notes, scholarly work in this area has been going on for years, often downplayed by some in the field. In pointing out the precarity of tort law’s protections for LGBTQ2+ people and for people with disabilities, Abraham and Dorfman amplify the need for us to move toward an inclusive law of torts and reinforce the importance of the Social Justice Theory of torts.