I — Introductory Remarks

Equality is fundamentally a philosophical concept. As situated as an aspect grounded in law, equality exists as a philosophical notion used in the development of an understanding of what law is in general, and aims to be descriptive rather than evaluative.1 Equality also exists as a real concept, void of dependence upon belief or decision. It exists as a structure that explains its concrete manifestations.2 If something such as a law exists that is unjust, it is unjust by virtue of a general fundamental property of social justice and equality.3

This article attempts to trace how the infuriatingly elusive concept of equality has been applied in the context of the Canadian Charter of Rights and Freedoms [Charter]4 and more specifically, Section 15, commonly referred to as the equality provision. I suggest that a critical analysis of the historical application of this concept across various social groups of individuals (race, gender, disability) can bring to the forefront essential aspects of a notion of equality designed to promote justice for not only, but principally, people with disabilities. More pointedly, by distinguishing the differences in the application of the principle of equality in reference to the treatment of marginalized social groups, I argue that we might better uncover precisely what it is that is required of the institution of law when applying the equality provision in real-life cases.

Thus, this project is largely one of discovery, and not construction. While of great interest to me, I do not pretend to establish or construct philosophical principles for the egalitarian theorist to include within her theory of distributive justice. Instead, I simply hope to reveal how or why some decisions that have been made with reference to Section 15 of the Charter might be viewed as promoting a greater form of well-being than others. Ultimately, I conclude that decisions concerning people with disabilities tend to promote a lesser form of flourishing than those concerned with race or gender.5 With a clearer understanding of what it is about equality that does not incorporate people with disabilities, as well as how policy and legal analysis can be shaped and altered by such considerations, and how structures and attitudes can be redesigned, concerns for people with disabilities can begin to be addressed and incorporated into the existing struggle for social justice.

People with disabilities possess great talents, and similar to people without disabilities, have a diverse range of skills and abilities.6 The range of talents and endowments of people with disabilities often go ignored due to the inability of these individuals to resemble the able-bodied norm constructed by people without disabilities. This able-bodied norm invisibly guides the creation of larger social structures, laws, political decisions, and attitudes in general.7 These structures serve to reassure society as a whole that individuals who are unable to function to the same extent as able-bodied people within such structures are somehow failing. And as a result they are either worthy of acts of benevolence and pity, or undeserving of accommodation, however minor it may be.8

Such attitudes ultimately result in social exclusion in the more formal settings as the law, as well as other socially funded and operated structures.9 I suggest that such attitudes permeate our social and legal institutions due to a misapplication of the concept of equality. The inability to create an adequate understanding of this concept has resulted in the failure to promote substantive equality for people with disabilities.

Conceptualizing legal frameworks and decisions across race, gender, and disability boundaries can show the advances that have been made for particular social groups, while demonstrating the regression in others'. Thus, situating equality in such a manner affords one the opportunity to view those aspects of equality that are lacking and which require amending in the context of people with disabilities.

I aim to provide reason to believe that, historically, racial and gender minorities have been afforded additional regard in reference to at least the two following features of flourishing that people with disabilities have not: (i) the recognition of the intrinsic worth of functionings;10 (ii) the recognition of historically situated prejudices and norm-constructed social arrangements.11

II — The Canadian Charter of Rights and Freedoms

Prior to engaging further with the above claims however, it might prove helpful to briefly mention some historical and conceptual background information on the Charter. Many of the rights assured in the Charter have their roots in various sets of Canadian legal precedents. These rights were sometimes said to exist in an Implied Bill of Rights. Many were also ensured in the Canadian Bill of Rights [Bill of Rights] that Diefenbacker's government enacted in 1960. Unlike the Charter however, the Bill of Rights was an ordinary Act of Parliament that had the possibility of being amended through a majority vote.

Later, under guidance of Trudeau, a draft of a potential bill of rights was created that both excluded economic rights and allowed for the limiting of rights (later referred to as the Charter's limitation and notwithstanding clauses). In 1968, Trudeau would be Liberal leader and prime minister who would advocate very strongly for a constitutional bill of rights. Eventually, the Canada Act 1982 would pass. While the Charter was officially adopted in 1982, the equality rights I discuss in this piece (section 15) did not come into effect until 1985.

Section 15 would state:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.12

Section 1 would limit the responsibility of upholding these rights and is often referred to as the reasonable limits clause. It would state:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.13

III — The Intrinsic Worth of Functionings

Hopefully the above background can provide some contextualization to assist in developing a greater understanding of the conceptual arguments that follow.

The first of these arguments can be summarized as the failure to address the intrinsic worth of various functionings in the pursuit of flourishing. Let us begin with an examination of gender or racial considerations and then move to people with disabilities.

Shrage notes the progression of attitudes adopted towards women with reference to, for example, work-place placement and equality, and suggests that anti-feminists argue that women are naturally less suited for positions of authority and power due to their natural lack of ambition and willingness to compete.14 It is because of micro-debates such as the one occurring within the employment sector that on a macro-level, the nature/nurture debate has continued.15 However, Mill warns, and I think rightly so, of the pitfalls of appealing to "natural" causes for states of oppression, given that invisible social forces shape what one views as natural.16 Societal structures—such as the streaming that occurs within the education system—are examples of directing students based upon preconceptions regarding specific abilities or functionings of individuals. And as such, they serve as an example of a particular element of invisible state oppression.17

Gender pursuits of equality were, and indeed are, typically characterized by affirming abilities and by denouncing the systemic oppression that resulted in the reduction of opportunities for these individuals. MacKinnon for example, notes that the scope of equality should be concerned primarily with dominance and subordination, not gender differences or the difference gender makes.18 Feminists denounce the relevance of the artificial creation of a hierarchical scheme when attempting to equalize individuals' attributes.19 Instead, feminists attempt to promote the recognition of access to things such as resources, credibility under the law, and security, as essential elements in ensuring equal opportunities amongst a diverse set of individuals.20

Oftentimes within the pursuit of equality by people with disabilities, the focus has been on equalizing opportunities, and not on ensuring fundamental human rights. The opportunities being assured have often been deemed to be of importance because of a quantifiable, often economic gain, associated with that opportunity. Instead, we need to shift our focus to acknowledge the value of performing various acts for the act's sake. In the majority of circumstances, individuals with disabilities may not be able to overcome particular characteristics (and thus situate themselves closer to their able-bodied counterparts) by merely providing them with an ablest conception of opportunities.21 More pointedly, the scope of what is to be equalized differs drastically as people with disabilities' objective is to ensure goods, such as medical support and other human rights concerns, while the equalization of opportunities works within the existing confines of a competitive-based market system.22 Thus, as the emphasis shifted from a perceived functional difference or natural tendencies, to one concerning the equal benefit of human rights, attention nevertheless remains on economic outputs.

Difference as contextualized through an opportunities perspective is recognized in an attempt to situate individuals at a similar starting line. Within human rights discourse, difference is utilized to promote the acceptance of individualistic conceptions of good, while stressing or noting the intrinsic worth associated with various functionings. Within opportunities frameworks, individuals rely upon the social creation of what is good or valuable because no other measures of value are introduced as viable alternatives to a life possessing value.

In the pursuit of equality for people with disabilities, the intrinsic worth of particular activities ought to be noted. Attention must shift from the economic output associated with a functioning and should instead focus on the intrinsic worth of a particular activity in its own right. Equalizing the relevant outputs of individuals (or valuing activities for the product associated with performing that activity, instead of the intrinsic value associated with the activity) inherently falls victim to the quantifying and measuring of functioning. If one is attempting to equalize the various conceptions of the good individuals may have, then such a conception relies upon measuring happiness and subjective worth, and is victim to many of the criticisms launched against many consequentialists. Such conceptions fail to recognize the intrinsic worth associated with functionings and, instead, force individuals to determine their own measure of outcome. Individuals' own measure of outcome is largely determined by societal conceptions that are in turn reliant upon economic measures. By attempting to equalize or ensure the intrinsic benefits of such functionings, one ensures a more comprehensive notion of justice and recognizes the various aspects that go along with identity and worth.

IV — Jurisprudence and Intrinsic Worth

C.J. Dickson notes how employment, for example, serves as a fundamental aspect in an individual's life and can serve not only as a means of financial support, but as a way to foster a sense of identity and to feel a belonging and worth in one's community.23 An examination of various legal decisions contextualize this claim and provide further clarity regarding the requisite acknowledgement and equalization of the intrinsic worth of functionings.

The first case in Canada to interpret the notion of equality after the Charter was introduced was Andrews v. Law Society of British Columbia [Andrews]24 . The decision in Andrews emphasized the emptiness of a test designed to assess discrimination based upon an abstract notion of similar treatment for those individuals similarly situated. Rather, in developing what was seen to be a test emphasizing substantive equality and placing particular importance on first, equality issues, and second, on analyses of reasonable limits, Andrews distinguished Section 15 from Section 1 of the Charter. The decision in Andrews that forced considerations concerning the reasonable limitations of services marked a tremendous shift in equality considerations under the law. The distinctions made in Andrews between considerations in Section 15 and 1 allow emphases placed upon overriding one's guaranteed equality rights to come to the forefront. An examination of decisions that relied upon considerations of reasonable limits contextualize the experience of disability situated in, and related to, the notion of equality.

In the context of examining the intrinsic worth of functionings and the court's lack of recognition of such a notion, Cameron v. Nova Scotia (Attorney General) [Cameron]25 is important because it provides clarification of the legal framework for an equitable allocation of scarce resources in the context of people with disabilities and life altering, or essential, services.26

In Cameron, the appellants were a married couple who had previously been unsuccessful in having children due to the male appellant's, Alexander MacBain Cameron's, condition of what was classified as "severe male factor infertility". This was due to a reduced sperm count, as well as a reduction in quality of existing sperm. The appellants sought benefits under the Health Services and Insurance Act27 for medical and hospital services consisting of intra cytoplasmic sperm injection [ICSI], a variant of in vitro fertilization [IVF].28 The appellants argued that by virtue of a physical disability, they were discriminated against by not being covered for medical treatment. Consequently, they argued, their equality under Section 15 of the Charter was violated.29

Based upon these facts, the court addressed two primary considerations. The first concerned the decision of the trial judge and whether the previous judgement erred in finding that under the policy established by the Health Services and Insurance Act, IVF and ICSI were uninsurable services available to the residents of Nova Scotia.30 Secondly, in the event that the services sought by the appellants were uninsurable, the court questioned whether the Health Services and Insurance Act was in breach of Section 15 of the Charter, insofar as it discriminated against infertile persons.31 Finally, in the event that the policy was in breach of Section 15, it was necessary to examine if the discrimination could be justified under Section 1.32

The existing ruling regarding IVF and ICSI as uninsurable services within Nova Scotia was ultimately upheld by the Court of Appeal. It was also ruled that while such exclusion drew a distinction between fertile and non-fertile individuals, resulting in discrimination based upon physical disability an enumerated ground in Section 15, such exclusion was in fact justified under Section 1 of the Charter.33

As the objective of the Health Services and Insurance Act was to provide the best possible health care coverage in the context of limited financial resources, the insurable services were limited to those deemed medically necessary, which excluded IVF and ICSI. Moreover, the violation that resulted from the exclusion of IVF and ICSI was rationally connected to the aim of the legislation. It was ruled that the legislation minimally impaired the appellants' Charter rights to ensure greater rights for a greater number of individuals requiring medically necessary services.34 Finally, it was ruled that there was proportionality between the effect of the measures and their objectives so that the attainment of the objectives was not outweighed by the abridgment of the appellants' rights.

Considerations in Cameron were based largely around those services deemed to be of medical necessity. The provision of services were weighed against (as well as restricted to) those that were medical means to serve medical ends.35 However, a definition of the term "medical ends" is difficult to achieve as an abstraction, let alone as a legally defensible term. Given the current emphasis on holistic health, wellness, and prevention, distinguishing between medical and non-medical ends is increasingly difficult.36 More pointedly, as reference was made to financial considerations not being a justifiable defense of Charter infringements, it was nevertheless permitted in Cameron. Emphasis was placed upon external gains (or medical ends), while neglecting to note the appellants' intrinsic gains associated with the realization of reproduction. The financial burden the province would have had to undertake to ensure similar rights to all individuals was weighed as being of primary importance, and therefore, justifiable as an exclusionary consideration by the Court.

Conversely, Section 1 considerations within racial and gender decisions have typically placed emphasis upon the intrinsic benefits associated with various functionings (including childbirth and childrearing). And they have in the very least included such benefits in the weighing against financial burdens. In short, racial and gender considerations have not been so quick to dismiss the intrinsic worth of functionings.

Similar to the Cameron decision, the Newfoundland (Treasury Board) v. N.A.P.E. [Newfoundland (Treasury Board)]37 decision was rendered by an appeal to Section 1 as a justification for the exclusion of women in Newfoundland's pay equity legislation. In Newfoundland (Treasury Board), the provincial Newfoundland and Labrador government entered an agreement concerning pay equity for hospital employees in the areas of work typically staffed by women. The wages were to be increased over a five-year period starting in 1987.38

In 1991, the government of Newfoundland and Labrador had a 120 million dollar deficit and was undergoing what was identified as a financial crisis.39 As a result of such a financial burden, the province opted to delay reparations. Subsequently, the union began an action against the government indicating that the new legislation designed to delay the pay equity agreement was discriminatory and violated equality rights ensured through the Charter.40

Similar to the Cameron decision, the ruling held that a Charter violation such as the discrimination endured by women in Newfoundland could be justified under Section 1 in the case of such a large fiscal crisis. Despite what appears to be similar justification for excluding individuals from the scope of the rights ensured through the Charter, there are subtle distinctions to be made in the developing of such considerations by the respective Courts.

In Cameron, emphasis was placed upon external (or more specifically, medical) ends, while no particular emphasis was placed upon the appellants' intrinsic gains associated with performing the respective function in question. Conversely, in Newfoundland (Treasury Board), particular attention was paid to the intrinsic benefits of having employment and much less regard was given to the economic output of individuals. Employment was noted to be an important component of an individual's life, and the respect of the community in relation to one's job was claimed to be a large part of what constitutes an individual's identity and self-worth.41 The importance of fair pay was noted, due to the effects it has on one's social status. Social status was found to result from the social prestige and importance placed upon well-paying jobs, and not solely from financial considerations.42

In Cameron, however, emphasis was placed upon quantitative, medically regulated norms. The decision in Newfoundland (Treasury Board) claimed, "the weighing exercise has as much to do with social values as it has to do with dollars"43 .

Similarly, the notion of overt versus covert discrimination was employed in the British Columbia (Public Service Employee Relations Commission) v. BCGSEU [(British Columbia (Public Service Employee Relations Commission)]44 decision in relation to the dignity (or lack thereof) that occurred as a result of discrimination on the part of the arbitrator. The decision noted that whether the discrimination was overt or covert in nature, it nevertheless negatively affected the dignity of the complainant and that the covert form may require more attention by its very nature.45 Such an emphasis placed importance not only on covert forms of discrimination, but also noted the intrinsic worth associated with activities.46

The decision in Bear v. Canada (Attorney General) [Bear]47 was largely based upon similar considerations within the context of a racial analysis. Emphasis was placed upon human dignity as an essential human right and the nature of violations of the Charter emanating from negatively affecting one's dignity. The prevention of the violation of human dignity was of primary concern. And the claimant's sense of belonging and personal identity associated with the community she identified with comprised a large part of her argument and the Court's consideration.48

Ultimately, the holding of the court in Newfoundland (Treasury Board) was similar to that within Cameron. Particular emphasis was placed upon the intrinsic worth associated with employment, as with other considerations noted in Bear and British Columbia (Public Service Employee Relations Commission). Rights within these judgments were weighed as both the intrinsically and extrinsically valuable results associated with the functionings in question. In Newfoundland (Treasury Board), when weighed as "rights versus layoffs, rights versus jobs, rights versus education and rights versus social welfare"49 , the greater welfare of the province emerged as a primary concern.

Thus, it appears to be the case that consideration of the intrinsic worth of various functionings is often taken into account within conceptions of equality that focus on gender or racial considerations. However, the intrinsic worth associated with functionings needs to be taken into account within rulings concerning equality that use disability as a starting point. More pointedly, recognition of the various forms of value need to be taken into account to address the intrinsic worth associated with functionings such as child-rearing, as outlined in Cameron.50

Cameron lacks the recognition of the nonquantifiable, non-economic, or non-explicit benefits of performing an activity that has historically received equal, if not more, attention, than the extrinsic gains associated with the activity, in racial or gender rulings. Thus, it is essential within the design of equality for provisions to be made to account for such worth.

V — Historical Prejudices and Norm Constructed Social Arrangements

The second anomaly discovered in the rulings is concerned with historical prejudices and the subsequent adoption of socially regulated norms and programs. In what follows, I examine various legal decisions and the recognition of historical injustices that occur in such decisions. I also examine the social position of marginalized individuals and what the recognition of historical prejudice (or lack thereof) might imply for people with disabilities in relation to those marginalized on the basis of gender or race.

Historical perspectives and conceptions of marginalized groups have undoubtedly informed the social construction of policy, law, and attitudes. Oftentimes, the political fragmentation of such groups has resulted in the occurrence of greater prejudice, due to a lack of political mobility or cohesiveness in the pursuit of social recognition. While gender and race transcend many social, religious, and class boundaries, there is and was nevertheless a stronger political collectivity with noteworthy social leadership.51 The pursuit of social justice for people with disabilities is a relatively new endeavor in comparison to racial and gender rights movements. As such, racial and gender considerations have had the opportunity to be marked with numerous strong political leaders and movements that have forced the recognition of historical injustices that may still permeate contemporary equality considerations. The pursuit of social justice for people with disabilities has been especially difficult due to the existence of subdivisions within disability as a collective. Take for example, the deaf community. Many individuals within the deaf community do not acknowledge themselves as having a disability. Similarly, due to the contextualization of the classification of "disability" as a socially constructed one, many individuals denounce having membership in the disabled community. As such, fragmentation has posed a large problem within the disability community and has subsequently resulted in less social and political mobility than within racial and gender considerations. Many individuals with disabilities find themselves situated within other marginalized collectives typically identified by class and poverty. Similarly, many people with disabilities experience a further marginalizing effect by virtue of possessing membership in different class, gender, and racial groups than their oppressors.

Despite having greater social cohesion, theorists such as Fairclough claim that the political fragmentation of the race movement within contemporary scholarship and activism has created further problems for those pursuing racial equality.52 The uncertainty and instability of black leadership since Malcolm X, Martin Luther King Jr., and Jesse Jackson has created a further segregated and fragmented black population.53

Similarly within feminism, Smith notes that while the Charter may be present to ensure equality for individuals, it requires constant interpretation and implementation of existing rulings.54 Without a collection of women amongst those interpreting such provisions, it is no wonder the rights of women are not being upheld to the extent they themselves deem acceptable.55 As such, the lack of legal and political leadership for females is particularly troubling in the pursuit of equality.

Brodsky and Day acknowledge the problem with separation under the law.56 The individualization of equality problems under the law makes the oppression of women or other minorities invisible.57 By acknowledging one's individual "nature", the targeting of group and social problems, as well as the legal recognition of group remedies, is difficult to achieve.58

In addition to the legal repercussions, political vulnerability is important to categorical groups such as race for two distinct reasons.59 The symbolic value of political representation and mobility provides racial groups with a sense of belonging and involvement in the society in which they live.60 Secondly, the importance of hearing divergent public policy issues lays in the recognition of a particular group's fundamental rights and ensures those similar rights for a similarly situated group.61 Without the symbolic value of political representation and the trickle-down effect of equality rights, racial equality is held back even further. An examination of various legal decisions can serve to contextualize and to provide further clarity regarding the requisite acknowledgement and equalization of the historical injustices committed against people with disabilities, as well as the able-bodied constructed societal norms.

VI — Jurisprudence and Historically Rooted Prejudice

Eldridge v. British Columbia (Attorney General) [Eldridge]62 is an integral case for our investigation because of its examination of the legal framework for the equitable treatment and respect of individuals. It has a particular emphasis on reshaping the nature of healthcare.63

In Eldridge, the question of whether a provincial government's failure to provide sign language interpreters for people who are deaf when they receive medical services was a violation of Section 15 of the Charter was raised. The appellant, Robin Eldridge, asserted that because of the communication barrier that existed between people who are deaf and health care providers, the quality of care she received was significantly less than the quality a hearing individual would receive.64 According to Eldridge, her right to equal benefit of the law without discrimination based on physical disability was being infringed upon by virtue of the province failing to fund interpreters.65

The Supreme Court of Canada ruled that a denial of sign interpretation services does infringe upon the deaf community's equality rights, insofar as it creates a distinction between hearing people and people who are deaf.66 This distinction created by the hospitals discriminates based upon a personal characteristic that is irrelevant to the values underlying the health system itself.67

Implicit within the Court's ruling was the notion of an individual's well-being. More pointedly, importance was placed upon an individual's equal achievement of self-determination, active participation and inclusion in social life through democratic principles, and the ability to exercise one's fundamental citizenship rights.68 Within the Eldridge ruling, there was a recognition that the deaf community's right to self-determination would be infringed upon should those individuals not be provided a means to air their concerns regarding the type and quality of care they receive from medical professionals.69 One's fundamental citizenship rights include the ability to meaningfully consent to and express concerns regarding the medical services one receives.70

Moreover, the Court recognized Eldridge's functioning of communication with her medical professional as an essential capability, and as such, ruled that it needed to be upheld to avoid an infringement of Section 15 of the Charter.71 Theorists such as Fader have recognized that the underlying beliefs concerning an individual's essential capabilities are based upon the historical and textual considerations prevalent within contemporary Canadian society, and as such, concluded that it is the responsibility of the Court to uphold such capabilities.72 However, explicit recognition of the historically rooted oppression endured by the deaf community and people with disabilities in general was not appealed to in Eldridge.

Within the context of sexual orientation considerations, Delwin Vriend worked in a laboratory at King's College, a Christian school in Alberta. Vriend's employment was terminated in 1991 due to the adoption of a policy against employing homosexuals. This policy was developed in light of the College's belief concerning the moral reprehensibility of homosexuality. Subsequently, in Vriend v. Alberta [Vriend]73 a complaint was lodged against the College and was at the Supreme Court level, upheld and recognized that the actions of the College were in violation of Vriend's Section 15 Charter rights.

In Vriend, emphasis was placed on the historically informed and socially constructed prejudice present within sexual orientation discrimination rulings. Conversely, there had previously been little of such concern within the Eldridge considerations focusing on disability as an enumerated ground. In Vriend, the underlying functional values of the Individual Rights Protection Act74 were considered.75 Emphasis was placed upon the construction of the act itself and the underlying principles informing such construction that resulted from a disproportionately heterosexual norm at the time of its conception.

In the Court's findings in Vriend, numerous appeals were made to the historical prejudice associated with homosexuality. It was noted that discrimination could exist not only through the stereotypical presumption of a particular group's personal characteristics, but also, that it could occur as a result of the disadvantage suffered by exclusion from mainstream society.76

Similarly in Symes v. Canada [Symes]77 , the Court recognized the circumstances of gender bias and the subsequent social situation of women. Elizabeth Symes practiced law full-time, and during the period of 1982 through 1985 she employed a nanny to care for her children.78 The appellant deducted the wages she paid the nanny, claiming them as a business expense.79 Revenue Canada would eventually disallow these deductions on notice of reassessment.80

The Symes decision examined the proposition that in calculating whether discrimination existed on the grounds relating to various individual characteristics of a particular person or group, one must not look only at the legislation itself, but at the social, political and legal contexts as well. It was recognized that the existent tax laws contribute to the marginalization of women in the workplace.81 The structuring of the contemporary tax system was implemented during a time when the oppression of women and cultural norms dictated that women remain in the house while their husband worked.82 The Court held that the attitudes present within such laws remain today and continue to oppress women as a result of a historically ignorant attitude.83 Finally, recognition of the impact such laws have on women entering the workplace was noted.

The Statistics Canada Family History Survey was used to show the way in which the ongoing burden of childcare has impacted negatively on women entering the workplace and achieving equal status and opportunity in employment as a result of the tax law.84

Courts have appealed to historical injustices to examine contemporary implications in both race and gender rulings. Conversely, within disability analysis, there has been less attention paid to the existing structural barriers that have resulted from outdated historical presumptions, stereotypes, and prejudices against people with disability. In a rare victory for people with disabilities, the decision in E. (Mrs.) v. Eve [Eve]85 noted the injustices done to people with disabilities as a result of attitudes that assumed such individuals were incapable of exercising independent thought in the pursuit of realizing personal goals. The Court noted the previous injustices and attitudes that have marred people with intellectual disabilities in its decision recognizing Eve's fundamental rights and ensuring them despite what societal conceptions were regarding the perceived inability to be aware of the implications of her decisions.86 Such a ruling is largely regarded as a tremendous victory and as precedent setting within the disability community largely because it is one of the few rulings that addressed the existence of historically situated prejudice towards people with disabilities. A conception of equality must account for such injustices in an attempt to promote substantive equality and redress social structures that continue to marginalize individuals. An interpretation of equality and social justice ignorant of the historically created biases and injustices affecting people with disabilities is incomplete insofar as it fails to recognize the socially created barriers present within society that continue to oppress people with disabilities.

VII — Concluding Remarks

In what preceded, I attempted to create a broader understanding of those essential issues, requiring recognition within an equality framework for people with disabilities. I did so by virtue of presenting injustices and materializations of equality through various legal decisions, and social and philosophical commentaries.

It is precisely because equality has implications for the way policies and laws are created that such an endeavor is fruitful. Policies deemed worthy of pursuing and implementing should be perceived to be those policies that ensure the maintenance and improving of every individual's access to functionings that possess intrinsic worth and allow for both personal and social growth. Discriminatory policy and environmental barriers would cease to be seen as abstract entities beyond the scope of social justice and policy implementation; but instead, they could be regarded as barriers to the abolishment of historical prejudices and the subsequent barriers that come as part in parcel with such stereotypical attitudes.87

Other contexts such as race and gender serve as a means to highlight and contextualize injustices directed towards people with disabilities and their pursuit of social justice. More importantly for people with disabilities, the recognition of equality rights in legal and political frameworks raises social awareness and can begin to redress injustices present within contemporary society.

Thus, by pointing to two serious discrepancies in how equality has been applied to people with disabilities in contrast to racial and/or gender minorities, we might begin to address how and why people with disabilities have been receiving unjust treatment before the law. Recognition of what I have coined the intrinsic worth of functionings and the historical situatedness of oppression can allow for us to being to approximate social justice for people with disabilities.

As the recognition of functionings that do not result in economic gains or quantifiable benefits becomes more common, the pursuit of such functionings will increase for all societal members, not just those people with disabilities. This should result in a more culturally diverse and rich society.

These are a few of the benefits associated with ensuring these essential elements of equality. As one utilizes such an understanding to develop a more comprehensive list of essential elements of equality, one can better introduce a more complete notion of equality, or assess and modify existing notions.

One might view the way in which equality is assessed in the following manner. Let us imagine there are a set of lenses available with which to interpret equality or a lack thereof. I hope to have demonstrated that there are in fact, better and worse lenses to promote flourishing. In recent history, it appears that racial and gender issues have been assessed through similar lenses — lenses that promote a desirable, rich conception of flourishing. Conversely, if one agrees with my above assessment, discrimination against people with disabilities has been assessed through a different, less desirable lens, that promotes a lesser form of flourishing.

What I hope to have demonstrated is that not only are people with disabilities being assessed before the law with different equality lenses than other marginalized social groups, but that establishing an overlapping consensus of what lens (or lenses) we ought to use may be possible. Indeed, I hope this suggestion might allow us to begin to think more seriously about articulating a conception of equality to be applied not only philosophically, but legally, to ensure a fair assessment of what we owe to each other, regardless of one's social or economic class. What follows from the above observations is that minimally, we need to ensure assessments of equality are being made with the same or a similar lens for everyone. Or perhaps more ambitiously, that there exists only one lens.

It will only be after we have developed a clearer understanding of what it is about equality that excludes people with disabilities, as well as how policy and legal analysis can be shaped and altered by such considerations, that we can begin to address and incorporate people with disabilities into the existing struggles for social justice.