Hurdles for LGBTQ2+ plaintiffs and plaintiffs with disabilities

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.

Thank you all for these thought-provoking posts. I guess I have a question generally about the role you think norms should play in private law disputes and law more generally. I tend not to think of the objective standard as representing “a certain truth about the world”, but rather as an impartial standard in the sense that it is not a partial standard: it is neither the standard of the plaintiff nor the defendant. Given your challenge to the reasonable person standard, what kind of standard should tort law adopt? What would be a fair standard as between the parties?

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Thank you so much Haim, Doron and Kyle for these illuminating posts! I am writing with two follow-up questions, for all three of you to consider.

First, I would like to invite all three of you to say more about important parallels between the dilemmas and the barriers faced by LGBTQ2+ plaintiffs and those faced by plaintiffs with disabilities. Doron, you’ve helpfully drawn our attention to one of these common barriers: namely, the need to present one’s identity or one’s disability in a negative light, as a harm or as damage done to oneself, in order to receive compensation, and the tension between this image of identity or disability as a harm and the very different lived experience of one’s identity as joyful and worth celebrating. Kyle, you’ve noted that a similar tension existed in litigation involving LGBTQ2+ plaintiffs asserting their privacy rights: it was, and still is, difficult for courts to conceptualize how LGBTQ2+ plaintiffs might have an interest in keeping certain facets of their identities private in certain contexts, even as they celebrate them in others. I am wondering about other fruitful parallels. Are there particular legal doctrines that place members of both groups in a similarly precarious position? Are there particular litigation strategies that members of one group have used, which might also be of use to members of the other group? (Relatedly, if part of the problem here is that tort law aims only to compensate people for ways in which they have been damaged, does that mean this is a structural problem, one that such plaintiffs will always face? Will they always have to come forward and present themselves as having been in some way damaged, in ways that stand in tension with their lived experience of their identity? Or is this a contingent problem stemming from our interpretation of particular legal doctrines, and is it therefore something we could overcome?)

Second, I wanted to ask you all about the positive and negative aspects of the kinds of objective standards that Haim has focussed on. As I understand your thoughts, Haim, you are suggesting that these standards are at once deeply problematic and yet also potentially transformative. They are potentially transformative precisely because they are not just a reflection of the “average” person but are normative, purporting to represent how people should think or behave; and what we think is “reasonable” evolves in light of our evolving ideas about what we owe to others. But the fact that these standards are normative also makes them deeply problematic, because the norms to which they appeal are often not made explicit and not interrogated, and often do not in fact reflect the perspectives of marginalized social groups. Do you have any thoughts on how we can harness the transformative potential of these objective standards while minimizing the risks?
–Sophia Moreau

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Thanks Zoe, good questions. I’m not sure I have the answer to what would be a better standard. One of the problems is that clearly we need to have some kind of an impartial standard, as you suggest. But even if we achieve impartiality between the parties, it does not mean that the law, and consequently the courts, are impartial. The reasonable person used to be the reasonable man, and there are still critiques on how this standard doesn’t fully protect women. So flagging that the issues with this standard are wider is a good place to start, and maybe through this project we’ll be able to start conceptualizing a new standard.

Thanks to everyone for a wonderful and illumination discussion.

Your posts bring to light, it seems to me, the tension between the ‘ordinary’ standard as a social construction of reasonableness, and the reasonableness standard we are familiar with from the objective standard of care – the Vaughan v Menlove sense – in which we think it fair to require that people consider the impact of their actions on others even if they could not, subjectively, have done so. Herein, it seems to me, lies the transformative potential Sophia’s comment brings to mind. Where we inadvertently use the idea of the ‘ordinary’, we are more likely to reproduce social inequalities and socially generated ideas about what people are like.

John Gardner illuminates the way these two standards mingle more than we sometimes acknowledge: that points out we sometimes use social convention, a shorthand of ‘ordinariness’, to give content to the normative ideal of impartiality. When we do this, we may implicitly allow standards of conduct to seem fair when they are in fact unjustified because based on implicit social biases. Gardner’s insight about the use of social convention in the repertoire of justification is particularly useful here, I think, because he shows how the slippage between ‘ordinary’ and ‘reasonable’ can lead to unfairness for either plaintiffs or defendants. I wonder therefore whether, with regard to the kinds of important concerns you point out, one thing we are doing is asking courts to be more attentive to this intermingling of the socially ordinary and what is truly fair, in order to achieve the latter.
Many thanks to you for kicking off a great inaugural discussion forum!

  • Jean Thomas

Hi Sophia, thanks for your questions! I think that the key to both harnessing the transformative potential of these objective standards and minimizing their risks is through awareness. Once litigants acknowledge that they can advance claims in order to achieve a much broader effect than resolving the particular dispute at hand - that’s a powerful tool for change. And it has been used in other contexts. Courts are obviously aware of the possible broad implications of their rulings, but I’m not sure how attentive they are to the impact on marginalized communities when they’re dealing with tort cases. There is a range of possible decisions that will resolve the dispute between the parties as well as to framing rulings. Courts can remain within the confines of tort law while advancing the rights of marginalized groups. But it is this very ability, as well as the awareness to it, that places marginalized groups at risk, as public opinions can change. One way of minimizing risks will therefore be avoiding claims by not filing them or settling. But this is not a real solution as it places an unfair burden on marginalized groups. Perhaps another solution is to keep insisting on protection and regulations outside of private law (e.g. constitutional, political, etc.). Or perhaps the only way to minimize the risks is by insisting and challenging problematic decisions.

This is a great question, Zoe. I agree with Haim’s response and would add the following thoughts. Some U.S. courts have adopted the “reasonable woman standard” in harassment cases, recognizing (as Haim points out) that even the move to the gender-neutral “reasonable person” standard wasn’t enough to center the lived experiences of women. Other scholars have noted that this problem extends beyond private civil law into criminal law. A few courts have adopted an even more pointed standard of the “reasonable African-American woman.” In the workplace harassment context, the U.S. Supreme Court has said that the question of whether the harassment was objectively severe should be “judged from perspective of reasonable person in plaintiff’s position, considering all circumstances” – suggesting that these more tailored, granular standards (“reasonable African-American woman”, for example) are proper under the law. Of course, we can then dispute the level of granularity that we must reach to ensure a fair and just result, e.g., do we also take class into account when defining the particular reasonable person in the case? Some argue, however, that the law simply can’t reach a truly fair objective standard: “the goal of employing an ‘objective’ test that is unaffected by the judge’s (or any other) world-view and that is sufficiently general to apply to all people is simply an illusory one.”

Many of the litigation strategies for representing clients with disabilities have been articulated by Laura Rovner in her 2001 article and also by Anthony Alfieri even before that. As they are arguing, I too believe these strategies need to be thought about in the context of the lawyer-client relationship.

An interesting start for this forum that seems to get immediately to the question of whether tort is likely to have the conceptual resources to accomodate “social justice” at all. That question was asked at roughly the same time social justice as we know it was being invented, when theorists facing the consolidation of intersectional identity politics within every mainstream discourse asked what had happened to liberation in the process. My favourite elaboration of the tension between liberalism and liberation remains Wendy Brown’s States of Injury (1995), ch 5 most directly. The need for a claimant to present themself as injured is a structural element of liberal legality founded as it is on rhetorical equality (to respond to one of Professor Moreau’s parenthetical questions). Anybody who starts with less is on the back foot, needing partial reasons for their justice claims, needing to make their identities as oppressed legible at the beginning of their argument; justice claims then become sites of the production and regulation of identity. The strength of this observation is brought home by the fact that it has been indepently discovered again and again since 1995, eg by Joshi in the piece Doc Abraham cites.

I’m not sure I see the tension Profesor Sinel implies between objective standards as aimed at impartiality and objective standards as representing certain truths about the world (though I agree that the truths are not typically of the form “this is how you ought to be”). To me it seems very likely that objective standards offer both. When the law asserts that impartiality involves, for instance, treating two people without regard to their wealth disparity, it makes effective use of a legitimating equality rhetoric but it also implies, is meant to imply, and manifests a series of contested claims about what justice requires. Professor Thomas’s reference to the characteristically congenial Gardener piece is apt here. On Gardner’s view, the juror applying a reasonable person standard who asks themself what a “normal” and therefore, say, middle class person would do is (usually) simply mistaken about what they are supposed to be doing. But I do not think that doing reasonableness correctly avoids the difficulties because there can be no practical separation of the sort of person a juror is, the sort of person that juror can imagine, and the reasons they consider apt to a situation. If we tell a juror deciding a question of reasonabless to stand aside from their or the litigants’ social locations and ask what would be equally justified for anybody we get straight back into liberalism’s rhetorical commitment to equality and all its elisions of disputed grounds of justice.

Jack, thanks for your thoughts! Just a quick response to one thing you said, about whether tort law “has the conceptual resources to accommodate ‘social justice’ at all”. One of the underlying assumptions of the Tort Law & Social Equality project is that tort law does have some such resources. And I think this is true on any understanding of the actual or proper aims of tort law. Of course, different theories of tort law will have different implications about how far tort law is responsible either for not exacerbating pre-existing social inequalities or for working to eliminate them. Some theories of tort law –for instance, certain instrumentalist theories, like Chamallas’ “social justice tort theory”— imply that it’s quite consistent with the underlying aims of tort law for us to revise tort law doctrines where we can, so that they can become a tool to aid us in the struggle to eliminate inequalities in the social status or life prospects of different social groups. Other theories of tort law –such as corrective justice-type theories— assign tort law a more modest set of ambitions. But corrective justice theories too recognize that certain sorts of social inequalities are problematic, even from the internal standpoint of tort law. For instance, as Haim notes, tort law purports to use a variety of objective standards. And as Zoë suggests, these standards are supposed to be impartial, in the sense that they do not privilege any one person or group’s standpoint or needs over those of any other group. That aspiration to impartiality is something that even corrective justice acknowledges as internal to tort law. It’s then a problem, even on a corrective justice approach to tort law that, as Kyle notes, the “reasonable person” standard has been interpreted with “a good dose of implicit or explicit anti-LGBTQ2+ bias cloaked in the language of reasonableness.” Moreover, even corrective justice theorists need a view about how tort law –and private law more generally— relates to public law, and how and about when the concerns that underlie public law –which often include values such as dignity and equality— shape the contours of certain doctrines in private law. So actually, I don’t think one needs to be a “social justice tort theorist” in order to care about whether tort law perpetuates social inequalities or in order to think that tort law has some resources to address certain problems of social inequality. All theorists of tort law should care about these problems, though they will have different explanations of why we should care and different ways of drawing the boundaries of tort law’s responsibilities. --Sophia Moreau