The Story of Legal Capacity: Specificity and Intersections

In this article I explore legal capacity as it has impacted my life, through the lens of a negative experience and a positive one.  As many of you know, legal capacity is an important right guaranteed in the Convention on the Rights of Persons with Disabilities (CRPD).  It is also guaranteed in the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and in a broader sense is incorporated in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).   My aim is to encourage people to be aware that legal capacity is a social construct, it is not an inevitable fact of life and can be changed – indeed we are seeing it change before our eyes with respect to the particular act of marriage.  Legal capacity is being similarly reshaped from a disability standpoint, in a much more comprehensive way.  Please see CRPD Article 12, the draft General Comment on Article 12 by the Committee on the Rights of Persons with Disabilities, the IDA CRPD Forum Principles for Implementation of CRPD Article 12, and my article Norms and Implementation of CRPD Article 12, for more information.

The Story of Legal Capacity: Specificity and Intersections

The story of legal capacity is the story of law in people’s lives.  It is different depending on social class, gender and many other life situations.  For me personally, I became aware of the impact of law by being deprived of my liberty and forcibly drugged pursuant to a psychiatric opinion.  I was negated as a subject and treated instead as an object; what I said and did was not heard and responded to as in a conversation but rather was analyzed as a behavior to be ascribed abnormal properties and fixed by means of toxic chemical alteration.  This was a violation of the right to legal capacity as well as liberty, as understood under the Convention on the Rights of Persons with Disabilities.

I am now married to my long-term partner, who has also known the effect of prejudice and abuse in negating her agency and power.  As a same-sex couple, our right to marry was only recently granted by the New York State legislature and recognized by the federal government through the repeal of the mis-named “Defense of Marriage Act” (DOMA).  The significance of marriage as an exercise of legal capacity that is still denied to a great number of same-sex couples in the United States and throughout the world is worth examining.  Marriage is a mutual undertaking of responsibilities in law as well as in the eyes of family, community and society; it is a passage that for many of us is sacred as well as worldly.  The ability to enact a ceremony that functions on multiple levels reminds us of the common root of law and our relationship with the sacred.  Just as legal capacity implies a proactive, intentional choice, an affirmation of obligations freely undertaken, our relationship with the sacred changes once we acknowledge our own role in co-creating the world we live in.

Marriage has not always been a mutual undertaking between the two spouses; remnants of the patriarchal objectification (and commodification) of women persist in many versions of the marriage ceremony.  The groom’s removal of the bride’s garter and throwing it to other men; the “giving away” of the bride by her parents; the veiling of the bride while the groom wears a tuxedo: all speak to the groom being an agent while the bride is the object of his desire.  At best she has a role in accepting his desire willingly, and in Jewish tradition she circles him seven times in imitation of the Divine creation of the world in seven days.  It could be said that the bride is generally assigned a role that is halfway between object and subject, in keeping with the still transitional nature of social acceptance of women’s equality and legal capacity.

Marriage has been a rite of passage for women and men in different ways; for women it traditionally represents “the end of childhood,” leaving behind her parents’ home and taking on the sexual and reproductive obligations of an adult woman.  For men it is supposed that he is already an adult, his rite of passage into adulthood has been through finding work and making an honorable relation to obtaining his livelihood and/or managing his wealth.  Marriage for a man represents the taking on of responsibilities that affirm his adult capabilities, rather than a beginning of adult status in the community.  Obviously the economic and social class implications of such conceptualizations mean that in circumstances of poverty, disability, and any kind of outcast status, people may either be simply excluded or may develop a critical perspective on the institution of marriage and alternatives to it.

Lesbians are remaking marriage, along with gay men, trans people and other queers who exist outside the gender binary, and heterosexuals who value equality.  It is inescapable for us to make the choices that express what we want and what we accept: there is no tradition for us to simply fall into pre-existing archetypal patterns or to value each other as exemplifications of the archetype of male or female, man or woman.  We co-create with each other the representations of our relationship, we also co-create with the legacy of traditions available to us.  Our choices become meaningful not only for ourselves but as a variation on the culture.

Co-creation itself is a principle in lesbian community and spirituality, as well as in the mad movement and the disability movement.  The CRPD was a unique instance of co-creation by civil society with governments, disabled people with non-disabled people.  In the mad movement, peer support is valued not only because of shared experience but more importantly because of the potential for mutuality.  Intentional Peer Support is a practice that aims to bring intent, or mindfulness, to our mutual relationships, and treats the relationship itself, co-created by both individuals, as the goal rather than as a means to an end.

The cultural representations change alongside the legal ones, not always at the same time, and they can piggyback on each other.  In law the institution of marriage has not much changed with the entry of lesbian and gay couples, although the simple change (from “man and wife” to “husband and wife” to “married”) has meant volumes and has provoked outrage by those who defend marriage as a heteropatriarchal institution per se.  For me as a lesbian female of working class/lower middle class background, with married parents who defied the law in their separate ways, it is somehow easier to relate to marriage as a paradigmatic exercise of legal capacity than it is to feel comfortable negotiating business contracts or feeling empowered to use the law creatively to choose my responsibilities and seek adjudication of my rights and responsibilities.  I also find it easier to work on a meta-personal, systemic level to change law, including the law on legal capacity, than to seek personal justice.  Perhaps that is also my legacy as a Jewish female, as the daughter of a man who retained his parents’ communist values and a woman who philosophized about Marx and religion, and as a mad lesbian outcast: to change the world from within, while not having either significant presence or significant faith in the systems I seek to change.  I am sworn as a lawyer to uphold the Constitution of the United States, but it has not yet been deemed to guarantee my full and equal rights in many dimensions.

To come back to where I began, legal capacity is the story of law in people’s lives.  For me, legal capacity represents a juncture between disability (psychiatric oppression) with gender and sexuality, that allows me to explore the ways that law has most meaningfully impacted my life.  A colleague in Kenya, Michael Njenga, points out that implementation of CRPD Article 12 needs to take account of informal support relationships and the role of local authorities; the obligation to respect autonomy, will and preferences in family settings, given the centrality of families in the lives of persons with disabilities; and cultural considerations and differences between urban and rural settings.  It is my hope that this article will stimulate discussion among more sectors of the community of users and survivors of psychiatry and persons with psychosocial disabilities, about the meaning and relevance of legal capacity in all our lives, and about both how law needs to change to make room for our legal capacity and how our inclusion can transform law and society.  I also hope that it will stimulate further discussion on the intersections between disability/psychiatric oppression and gender/sexuality.