No, Mitch McConnell’s Polio Treatment Wasn’t Government funded and it Likely Influenced his views on Healthcare

A couple of days ago a meme starting going around Facebook about Mitch McConnell’s history of surviving polio

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Image Description: A black and white photo presumably of Mitch McConnell as a child with the text “As a kid, Mitch McConnell had polio, and the government paid for ALL of his care and rehabilitation. Now, as the leader of the Republicans in the Senate, McConnell is taking government-funded care away from tens of millions of Americans. Let that sink in”

The thing is, beyond the fact that McConnell did in fact have Polio as a child, the rest of the text is false. His care was not government funded. He received care at the frankly prestigious Warm Springs. A rehabilitation retreat founded by Franklin Roosevelt.

There are a number of reasons why McConnell’s history with polio doesn’t necessarily make him a natural ally of the disability rights movement. Which is not to excuse him for his work on the former AHCA and the current BRCA.

If we are to assume that Mitch McConnell’s history with polio impacted his political opinions on health care at all, it is important to understand the lessons that he would have learned.

He received state-of-the-art care at a facility which was not government-funded and which was founded by a man who spent his entire political career hiding the fact he was disabled. So not only did McConnell receive care from a facility that was either funded through philanthropy or by the patients themselves. The ultimate model of success for polio survivors at the time was Franklin Delano Roosevelt. A man who successfully hid his disability in order to become president of the United States.

The funding model of Warm Springs alone does not provide any sort of model or incentive to support government-funded medical care. In fact, its private funding and charity model actively oppose it.

Then there is the real cultural impact that FDR had on polio survivors. He hid his disability. No one saw what accommodations were made in order that he could go about his day-to-day business. He was a very visible model for “overcoming disability”. His example had a real and  measurable impact on polio survivors. Living in the shadow of FDR as Daniel Wilson (2013) would say, naturally led to the need to pass as nondisabled.

Those who followed the example of FDR worked to hide the visible symptoms of having survived polio. It is unsurprising that someone who survived polio with as few lasting visible effects as Mitch McConnell would feel that Association with disability was something to be avoided. It would have absolutely been an idea strongly modelled to him in the way he was treated for his polio and in the cultural ideas of disability that existed in the time that he was being treated. Not only was that the general goal of rehabilitation at the time. McConnell  is and was privileged enough to have access to the best possible therapy is of the time.

It is important to remember that simply having a history of disability does not naturally create an affinity for disability rights. Historically, and in present day there are cultural narratives that reinforce the idea that disability is something to be overcome or to separate the person from. Their ideas that disability and illness are issues to be dealt with on an individual level, which is precisely the experience that Mitch McConnell would have had.

So, Mitch McConnell isn’t actually a hypocrite for his positions on health care legislation in the United States. They’re very much positions that are based in history and precisely what would have been modelled for him as a child when he was experiencing disablement.

It is not enough to simply expect people with a connection to disability to have progressive views on disability rights. There is a long cultural history of  telling such people that they shouldn’t feel connected to or responsible for other disabled people. In the fight for disability rights and for the maintenance of Medicaid it is important to understand and remember how history has created a culturally acceptable identity of disability which actively rejects disability. The people who can most easily maintain such ideas are people like Mitch McConnell who are privileged enough to be able to access and maintain care when they needed without outside assistance.

So, in order to effectively fight for disability rights it is also necessary to remember and dismantle the history that has been created to maintain the system of separation and disunity.  It is important to remember that internalized negative feelings around disability are common and actively cultivated in disabled people. It is important to understand the difference in ability to access care that people like Mitch Connell had that precludes him from properly understanding the lived realities of people fighting for Medicaid today. It is not enough to simply expect or even hope that simply because someone has a history with disability or disablement that they will somehow have a natural empathy for others in similar situations. Particularly when they have been actively taught and socialized not to feel that way.

Mitch McConnell’s history with polio is an important and relevant story to remember and tell now not because it makes him a hypocrite but it explains how someone with a history with disability who has come to a position of power can so utterly disregard the needs and lives of other disabled people.

 

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No, Canada Will not Cover Your Preexisting Condition

With the recent vote for the American Health Care Act (AHCA) to repeal and replace the Obama era Affordable Care Act (ACA), there has been a lot of discussion on who the AHCA will hurt. One of the (many) concerns is that the new legislation should it pass in the senate will roll back rules guaranteeing coverage for people with preexisting conditions. These changes if enacted would disproportionately affect disabled people. This has spawned the online protest #IAmAPreexistingCondition to put a human face on the people who at risk of losing their healthcare or who will see its cost skyrocket.

The changes have also spawned a lot of Canadian smugness and this meme has been making the rounds.

Trudeau Preexisting Conditions

Image description: Canadian Prime Minister, Justin Trudeau, a white man with dark  hair in his forties gazes into the distance with his fisted hand touching his lip in a pensive expression. Text on the image reads “Hey girl, I’ll cover your preexisting condition”

The thing is the meme is a lie. In terms of how healthcare works in Canada, the language of preexisting conditions is generally meaningless. There are simply services that are or aren’t covered. If you’re in the system, you’re in the system. Canadians generally don’t talk about preexisting conditions the way Americans do because it’s a system we were either born into or gained access to simply by being Canadians.

The thing is though, even though we don’t generally use the language of preexisting conditions to discriminate in our healthcare system, there is still a lot of discrimination. As I mentioned, rather than excluding people based on preexisting conditions, there are simply services that are or aren’t covered. Whether a service is covered depends on whether it is considered essential. Many services largely associated with the care of disability are not considered essential. As such they either not covered and people who need them either have to pay out of pocket or seek private insurance or coverage is given at the whim of individual provinces.

This creates a second class access to the healthcare system for disabled people. We either may not have access to things that we need or our access to them depends entirely on where we live.

One of the primary principles of Canadian healthcare is that it’s supposed to be portable. You’re supposed to be able to get service regardless of your province of origin. This, however, does not apply to services that are not considered essential. So while I as a Saskatchewan resident have been able to get X-rays in BC (for an injury) and an ultrasound in Ontario (oddly enough for the same injury). I do not have access to consistent care related specifically to my disability because Saskatchewan may cover things that other provinces do not or vice versa and I can only access what is available in Saskatchewan.

This creates a couple of issues. There’s the fact that depending on your province of residence you may have less access to covered disability specific care. So the system is inherently unequal. There is also the fact that interprovince bureaucracies make it difficult to determine which services you should have access to while out of your home province or who to bill if you can figure it out. The outcome is that disabled people end up paying out of pocket for things that should be covered.

So for people within the Canadian system, there are still access inequalities. Inequalities that largely target the same groups of people likely to be disadvantaged if the AHCA passes.

The thing is, that isn’t the end of how the Trudeau meme fails. There is a scenario where access to the Canadian healthcare system does consider preexisting conditions. Immigration. Having a preexisting condition pretty much excludes a person from being able to access immigration to Canada. Which why this corrected meme needs to hopefully go as viral as the original (H/T Alex Hagaard)

Trudeau Meme corrected

Image description: The same meme as before except that text has been added over Trudeau’s face which reads “Except Canada doesn’t let disabled people immigrate #StopAbleism”

Immigration is pretty much the only circumstance where Canada considers preexisting conditions. So the meme is a lie. Canada will not cover your preexisting condition. If you have access to the system you are covered for a set of predefined essential services and the services that are most often considered inessential are those associated with disability.

So, no, Canada doesn’t cover preexisting conditions and flaunting healthcare access does nothing to address the very real dangers being faced by disabled people in the United States right now. This meme just taunts the people most negatively impacted by a potential adoption of the AHCA with lies.

*Note: I do not want to get into an oppression olympics competition here so comments along the lines of “suck it up Canada is still better” will not get through. They are reductive and also don’t address the disingenuous smugness over Canada’s healthcare system.

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The Problem With Paternalizing Disabled People to Protest Donald Trump

More than a week after the 2016 US election many people are still in shock at the result. People are still trying to piece together how Donald trump won and at the same time voice their horror at his election. This is entirely understandable considering the bigotry that was the backbone of Trump’s campaign which included suggesting that undocumented Mexican immigrants were rapists and that the US should build a wall on the Mexican border & the suggestion that the US should implement a total shutdown of Muslim immigration into the country.

Criticisms of Trump and his use of this sort of rhetoric absolutely should be criticized and protested. Particularly because these things could be acted upon and be used to harm the people being targeted.

I however genuinely wish that I could stop seeing things like this

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image description: A screenshot of a tweet by Damien Owens including an image of Donald Trump physically mocking disabled reporter Serge Kovaleski with the text “As long as I live, I will never understand how this alone wasn’t the end of it” (link to original tweet)

This tweet has been retweeted over 100 000 times and I originally can across it when the screenshot was shared on Facebook. This incident is considered by many to be Trump’s worst moment of the campaign.

Things like this make me feel sick and it’s not even the fact that I am repeatedly forced to see that image of Trump (horrific as it is). It infuriates me because it comes not from an understanding of what a Trump presidency will actually mean for disabled people in the United States but from pure paternalism.

Trump mocking Kovaleski is undeniably ableist. It is awful & worthy of criticism and commentary but it is far from the worst thing Trump said or did during his campaign and quite frankly the obsession with putting it forward as the quintessential example of how horrible Trump is, is deeply hypocritical.

First, let’s remember why Trump was mocking Kovaleski in the first place. He was angry that Kovaleski pushed back against Trump’s exaggerated interpretation of an article that Kovaleski had written about reports that Muslims were seen celebrating on 9/11.

The mockery of Kovaleski completely overshadowed the fact that Trump was in fact trying to fan the flames of Islamophobia at the time. He was doing that because he had already called for a registry of Muslims. First question, why wasn’t declaring a registry for an entire religious group not big enough of a horror to be the last straw? Second question, why is the mocking of an individual (even if that mockery is grounded in bigotry) worse than the Islamophobia Trump was defending and the actual suggestion of registering Muslims,  an action that if taken would hurt millions?

Mocking Kovaleski was bad but it wasn’t a suggestion of action against disabled people, even Trump knew enough to deny that he was mocking Kovaleski’s disability. He knew better than to double down on that. An awareness that he did not extend to the other groups that he targeted and included suggestions on how he might actually hurt them like mass deportations and building a wall.

That is not to say that Trump’s policies are good for disabled people, they’re not. He’s threatening the Affordable Care Act (ACA) and disabled people are very worried about what a Trump presidency will mean for them. However, simply holding up Trump’s mockery of Serge Kovaleski doesn’t help them. It doesn’t acknowledge how gutting the Affordable Care Act will hurt disabled people. It does not show Trump’s track record of dealing with disability issues (like that his properties have been sued at least 8 times for ADA violations).

It does not come with an active call of solidarity for disabled people with demands for greater access and ACA protection or plans on how to help disabled people when Trump implements harmful laws.

It doesn’t do those things because it isn’t actually based in the idea that disabled people are fully human. It’s based in the idea that disabled people are perpetual children who require coddling and protection. We are not people to be worked with but to be heroically saved.

This kind of focus also ignores the double standard of lambasting Trump for his ableism but ignoring the ableism used against the Trump campaign.

Apparently, Trump mocking Serge Kovaleski is beyond the pale but the widespread and concerted efforts to label Trump with a hypothetical mental illness were righteous and in no way totally stigmatizing of people with psychiatric disabilities.

Right Wing pundit Ann Coulter defended Trump by claiming he wasn’t mocking Kovaleski’s specific disability but was rather “he was just doing an impression of a ‘standard retard'”. As much as I hate to agree with Coulter in any way, particularly when she’s doing her level best to normalize slurs against people with intellectual disabilities, she may well be right. It is all to common to attempt to discredit someone by suggesting they are like someone with an intellectual disability. Trump was even the target of such associations.

During the campaign I came across images like this,

trump-sloth

Image description: A side by side image labeled “The Goonies Now” it shows then and now photos of the cast of the 1985 film The Goonies until the final comparison which shows a picture of the character Sloth who has an intellectual disability and facial disfigurement, it is shown next to a photoshopped image of Trump who has been changed to feature the same disfigurement.

Associating people with disability, particularly intellectual disability to discredit them is very common but the hypocrisy of focusing on the Kovaleski incident goes beyond that. It completely ignores the social reality of being disabled and that those realities were created or maintained by both political parties and extend beyond the borders of the United States.

Consider the fact that as soon as it became clear that Trump was going to win; a post that I had written back in April on disability and immigration to Canada started getting a lot of traffic. It actually maintained the top viewed item spot on my blog for over a week.  If you don’t have time to read it it boils down to: if you’re disabled you can’t immigrate to Canada unless you marry a Canadian.

The British government is currently under fire from the UN for violating the rights of disabled people with austerity measures. The government has more or less dismissed these concerns.

Socially on an international level it is entirely acceptable to treat disabled people like second class citizens. None of this reality is addressed by focusing on that one time Trump mocked a single disabled person. Lambasting just the mockery suggests that the world is supposed to be above treating disabled people badly but the lived experience of disabled people does not bear this out.

By simply suggesting the world should be above mocking disabled people without contextualizing it with the harms of ableist actions and policies, people are in fact covering up the fact that those things are widespread realities.

If the concern was a genuine concern for disabled people then the question wouldn’t be “why didn’t Trump’s mocking of a disabled person stop his campaign in its tracks?” but rather “Why didn’t ads like this one for Hillary Clinton which affirms the humanity of disabled people and the importance of inclusion guarantee her the presidency?”

The reality is that people are all to permissive of policies and laws that discriminate against disabled people regardless of political affiliation and fixing those problems or even acknowledging their scope is harder than calling Trump out for a single incidence of ableism.

On the Medicalization of Donald Trump

There has been quite a bit of discussion around whether it is appropriate to speculate about whether Donald Trump has a mental illness. The rhetoric and armchair diagnosis of Trump is already happening and it’s important to look at the arguments for why people are doing that and perhaps more importantly whether people should.

I am basing this post on an expansion of a comment I posted on David Perry‘s blog post on whether it is appropriate to speculate on Trump’s mental health.

Full disclosure. I am a Canadian and while my life may be impacted by a Trump presidency. I am unlikely to be directly impacted by any of the racist or harmful policies he’s suggested. He is after all only proposing to build a wall along the Mexico border.

Ultimately, though I am looking at the ethics and possible repercussions of pathologizing Donald Trump in terms of what it means for the rights of people with mental health diagnoses.

As I mentioned, people are already doing it but it’s important to question why.

Keith Olbermann made a 20 minute video applying a psychopathy test to Donald Trump. Olbermann did pay lip service to whether doing so was ok but rationalized it thusly “Trump started it” which is true. Trump has applied stigmatizing mental health language to many of his political opponents.

The problem with this justification beyond it’s childishness is that it forgets that pathologizing Trump doesn’t just impact Donald Trump. It also has implications on a broader level  to how discourse around mental health stigmatizes people with mental illness. People who haven’t been armchair diagnosed by a public just seeking to discredit a candidate that they dislike.

People have argued however that silence on mental health can be stigmatizing. Which is true but this actually assumes that Donald Trump has a mental illness. Which we do not and cannot know unless he tells us (and considering his propensity for lies, backs it up with evidence).

There is something to be said for there needing to be a discussion on people living without a diagnosis but I don’t think that a productive conversation on that is going to happen by speculating about the health of a public figure.

Particularly because of why people want to speculate about Trump’s mental health. Because let’s face it, it’s not out of a genuine concern for his well being. It’s because people want to discredit him.

Which brings us to the big issue. People are using mental health speculation as a way to discredit Trump and make him appear incompetent. This is deeply stigmatizing to people with mental health diagnoses.

If the logic is that by framing Trump as having a mental illness makes him unfit for the presidency then the message is that mental illness is equated with incompetence and that is a dangerous thing to not only assert but to advocate which is exactly what anyone saying “Trump is [insert usually bigoted term for mental illness here] are doing.

There is also the fact that much of the “evidence” people are using in their speculation is based on Trump’s bigotry. Finn has a great piece how “Wrong Does Not Mean Crazy” which focuses on how problematic it is to equate ideas we disagree with as evidence of the idea holder’s mental instability.

I cannot say strongly enough that bigotry is not a mental illness. It is also important to remind you that Trump doesn’t exist in a vacuum. He didn’t reach where he is by donning the guise of a supervillain (mo matter how abhorrent many of his ideas are) and threatening his way to the nomination.

No. He was supporters. Lots of them. People who see sense in the lies of his rhetoric.

Are we going to speculate on their mental health as well? Remember these people very likely number in the millions.

I honestly find it disheartening that people are so willing to perceive people who hold different ideals (regardless of how horrific they are) as rock hard evidence of mental illness. It buys into the “Mad=Bad” stereotype so people assume that if all bigots have mental illness then all people with mental illness must be at a bare minimum be frightening.

I refuse to believe that Donald Trump and his supporters are a case of mass hysteria. It is lazy thinking that seeks to erase the fact that humanity in large groups has rationalized the committing of atrocities.

When it comes to pathologizing Donald Trump, particularly in public forums. The goal isn’t really to have a substantive discussion on mental health. It’s a tool use to discredit him.

So no, I don’t think it’s appropriate to speculate on Donald Trump’s (or anyone else’s) mental health in a public forum.

If you want to make a point about Donald Trump being unfit to be president may I suggest pointing out,

He wants to build a wall on the Mexico border

He thinks that Mexico should pay for it

He has suggested banning Muslim immigration to the United States

He has suggested that Muslims be registered

Go after his policies. Go after his words. Go after his actions both past and present.

Speculating about his health with the intent to discredit him only stigmatizes others.

There more than enough material to suggest that Trump is unqualified to be president without supporting the existing stigma around mental illness by capitalizing on it by trying to attach that stigma to Trump.

 

 

Problems with the Disability Tax Credit Run Deeper than it Being Non-Refundable

On Friday CTV News ran a story titled  Six in 10 Adults with Disabilities can’t Benefit from Disability Tax Credit. The main focus of the piece is on the fact that the credit is non-refundable. This means that in order to benefit from it the recipient actually has to make enough money to pay taxes. The problem being that most people who qualify for the credit don’t make enough money. The recommendation they come up with is to make the credit refundable. This way everyone who qualifies gets at least part of the credit regardless of their income.

I would absolutely love for the Disability Tax Credit (DTC) to be refundable as I am part of the 60% who qualify who don’t make enough money to benefit (shameless plug. You can buy me a “coffee” by making a donation here or by clicking the “buy me a coffee” button in the right sidebar). The thing is that problems with the DTC run a lot deeper than whether people who qualify can actually benefit.

Let’s start with the big one. The title referring to 6 out of 10 adults with disabilities is misleading. It’s really 6 out of 10 adults who qualify. This is a huge distinction because the DTC is notoriously difficult to qualify for. The application process seems designed to arbitrarily disqualify people. It is so confusing and the standard so arbitrary that doctors don’t even want to fill it out. Not because they don’t think you qualify but because they worry that if they make an error that you will be refused.

In theory the DTC is designed to “provide for greater tax equity by allowing some relief for disability costs, since these are unavoidable additional expenses that other taxpayers don’t have to face.” (quote from the government of Canada website).

You would think based on that stated intent that qualifying standards would be based on things like:

Having a disability

Having expenses related to that disability

The first of those is true, the second is not and just having a disability regardless of the addition financial burdens it brings is irrelevant. Instead prospective applicants have to wade into an arbitrary level of disability that has very little to do with defining a person’s actual experience of disability. A person’s functioning is broken down into several categories in which you must be markedly restricted in at least one or significantly restricted in at least two (see the application form here. It’s a PDF. here’s a text version).

Markedly and significantly are quite subjective terms. Markedly is at least partially defined. Let’s look at the functioning category for feeding,

Your patient is considered markedly restricted in feeding if, even with appropriate therapy, medication, and devices:
• he or she is unable or takes an inordinate amount of time to feed himself or herself;
and
• this is the case all or substantially all of the time (at least 90% of the time).

Oh hey a new arbitrary and subjective word inordinate. This is confusing enough but the part that really frustrates me is the restrictions on what qualified as feeding “Feeding oneself does not include identifying, finding, shopping for, or otherwise obtaining food”. So shopping for food doesn’t count?

So the fact that I either have to take the bus to the grocery store–which seriously limits how much food I can buy at one time based on how much my physically disabled body can carry (people who use accessible transit may be even further limited as many such services limit how many bags a passenger can have) thus necessitating more trips to the store–or pay to have my groceries delivered–which is a cost that the DTC would offset–do not get counted in the “inordinate amount of time” it takes me to feed myself. Even though I’m either out money or additional hours just to have access to food much less to prepare it.

This leads to my second major issue with the DTC. It appears to assume that applicants aren’t independent and that someone (like a parent) will be collecting it. I suspect that this is why the credit is non-refundable. The government assumes that the disabled person is in someone else’s custodial care. Someone who is not disabled and who is making enough money to qualify for tax credits. Someone who will be able to do all the necessary grocery shopping in one go.

Why do I suspect this? Just look at the application form on page 1. The first two sections are “Information about the person with the disability” and “information about the person claiming the disability amount”. There is no box to tick which indicates that they are the same person. Rather the form doubles down with “the person with the disability is:  My spouse or common law partner______ or my Dependent(please specify)______”

I mean, I guess I’m dependent on myself but I don’t think that’s what the form is getting at. I guess if we’re being literal then I also meet the two follow up questions. Why yes, I do live with myself and yes, I do depend on myself for food, shelter, and clothing.

Correct me if I’m wrong but most forms where it might filled out by a qualified applicant or a guardian (think adult passports which are applicable to anyone over 16) usually assume the person is applying for themself. They just tend to have an extra section or box that says something along the lines of “if the applicant is a minor, the parent or guardian must sign here”. It’s clearly separate. The DTC form however, doesn’t even really acknowledge that you might apply yourself. Even though it is completely legal to do so.

My third major issue with the DTC is that it requires you to requalify every five years. So you have to go the pain of convincing a doctor to fill out that ridiculous arbitrary form again.

Now I understand that some disabilities are temporary and that some people don’t qualify on a permanent basis. The way to get around that? add a box for the doctor to indicate if a condition is permanent and have them set out a reasonable timeline to requalify. If the condition is permanent drop the bureaucracy of requalifying and don’t bring it up again until you can show us peer reviewed medical evidence that something can be cured. Otherwise it just appears that the government has decided to take an official stance on believing in miracles. Which is awkward.

So as much as I would love for the DTC to be refundable. In reality for it to work as the government itself claims to intend. There needs to be a complete overhaul of the system. An overhaul that is unlikely because it would acknowledge that far more people should be qualifying and also erase some of the roadblocks to maintaining access to the DTC. All of this would cost far more than the estimate cited in the CTV piece.

The status quo keeps costs down. The government doesn’t want it questioned to deeply.

What Canada’s Immigration Policies Say about the Status of Disability in Canada

Every so often in Canada (and other countries but I’m focusing on Canada here) a sad story will appear in the papers. It’s one that we’ve seen before and will unfortunately see again. A family has been denied permanent residency because a family member (usually a minor child) is disabled. The most recent iteration of this recurring story involves the family of York University professor Felipe Montoya. The Montoyas were denied permanent residency because their son, Nico has Down Syndrome.

Nico is being refused under Canada’s Immigration and Refugee Protection Act under health grounds. The relevant section of the act maintains that someone can be denied permanent residency in Canada if,

 

  •  (1) A foreign national is inadmissible on health grounds if their health condition

    • (a) is likely to be a danger to public health;

    • (b) is likely to be a danger to public safety; or

    • (c) might reasonably be expected to cause excessive demand on health or social services.

 

Nico is being refused under the third subsection about the potential drain on health or social services.

This portion of the Act is a catchall which is used to summarily refuse residency to disabled people. It places a burden of proof that affects no other applicants as regards health. At least the first two subsections are dealing with immediately identifiable issues like whether a person is currently ill. The third however requires disabled people to prove that they will never be seriously ill or that their conditions will not deteriorate. While the wording suggests that the risk of expense must be reasonable to apply, in practice it becomes swiftly apparent that the presence of disability regardless of whether or not the individual is currently in need of expensive treatment or services or if those services might require alternate funding anyway.

There is no onus on a nondisabled applicant to prove that they will never contract cancer, experience a disabling accident or simply experience prolonged unemployment necessitating the use of social supports. This is however completely impossible to guarantee. It is also entirely impossible to prove that a disabled applicant will be a burden on the Canadian public.

The thing is, that this section of Canadian immigration legislation is of questionable constitutionality. It also most definitely does contravene the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

Section 15 of the Charter of Rights and Freedoms states that,

Equality Rights

Marginal note:Equality before and under law and equal protection and benefit of law
  •  (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.

  • Marginal note:Affirmative action programs

    (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.

You will notice that 15(2) directly states that laws or actions that encourage the equal treatment of the protected groups listed in 15(1) are allowed. This means that the financial hardship argument found in immigration legislation in regards to disabled applicants is flimsy at best. Legal jurisprudence on the issue of constitutional exceptions for financial reasons bares this out, with the courts having

stated its intention to continue to view budgetary justifications for Charter breaches with scepticism, “because there are always budgetary constraints and there are always other pressing government priorities.”

And yes, the Charter of Rights and Freedoms applies to all laws, even those dealing with nonCanadians such as immigration law.

The problem here is not that Canada’s immigration law is constitutional but that the government will maintain a convenient discriminatory and unconstitutional law until someone raises a Supreme Court Charter Challenge. They are gambling that people unfairly affected by unjust laws will not have the money or years to invest in a Supreme Court challenge (and yes Charter challenges take years, even the successful ones).

When the Charter was first proposed people were hopeful particularly as regards section 15 that marginalized people would not have to fight for legal protections anymore. It was hoped that the Charter would force the government to be proactive in aligning Canadian legislation with the Charter. Unfortunately this has not been the case and people have repeatedly had to fight for the supposed rights that the Charter claims to guarantee.

The government bets that people won’t have the time, money or energy to fight and doesn’t back down when they do. They do this despite the Charter and despite the UNCRPD which Canada has ratified. Article 18 of the UNCRPD directly states that

1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:

  1. Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability;
  2. Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;
  3. Are free to leave any country, including their own;
  4. Are not deprived, arbitrarily or on the basis of disability, of the right to enter their own country.

2. Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents.

18(2) is particularly important to one case of refusing a Yukon family residency because in this case the disabled child was born in Canada and thus a Canadian citizen but because the rest of the family were noncitizens, when they were deported, they had to choose to either take him with them (and saving Canada the cost of his care) or leaving him behind (ensuring care but depriving them of him). Basically, Canada was able to deprive a disabled Canadian citizen of his rights by forcing his noncitizen parents into an impossible choice.

It’s hard to know just how often this sort of exemption actually happens. We tend to only hear about it if the family fights back. It is impossible to know how many simply accept their rejections and return to their countries of origin or are denied entry to Canada in the first place.

When stories are publicized, they are frequently very sympathetically presented (even in cases where writers are not opposed to the exclusionary nature of our immigration law. see here for one such example focusing on the Montoya case). I suspect it is because people see these stories as exceptions. The fact that they frequently focus on children also helps tug at people’s heart strings. This certainly seems to have been the case for Canadian comedian Rick Mercer who devoted one of his famous rants to the Montoyas case

While Mercer has some fantastic things to say in his rant. He acknowledges that Nico Montoya will grow up and that in no way undermines his value as a person. He calls out the ridiculousness of predicting how much of a burden someone will be and the related assumption that this means that person has nothing to contribute.

It is however a bit disheartening that Mercer doesn’t appear to realize that this issue is bigger than kids with Down Syndrome. He says,

Apparently there is a war on kids with Down Syndrome that I was completely unaware of.

If he had just stuck to commenting on this particular case or other cases involving permanent residency, I would let’s be honest still be annoyed because the issue is far more encompassing than that but I can understand that sometimes the bigger issue is to huge to tackle all at once. My issue starts with the fact that he doesn’t seem to realize that there is a bigger issue. He goes on to say,

What’s next, we’re gonna say that family can’t come in because that kid in grade eight just failed his math test, or that one’s got a funny foot (emphasis mine)

He says this as though it would be utterly unthinkable to deny someone residency on the grounds of having a “funny foot” but the fact of the matter is that it could very well be a reason for exclusion.

The reality is that this affects more than just kids with Down Syndrome. Hell, it affects more than just kids. Consider Chris Reynolds who was 21 when he was deemed inadmissible on his family’s permanent residency application. His father, Thomas E. Reynolds is a professor (there seems to be a trend here) at Emanuel College at the University of Toronto. Chris was refused on the grounds of his Asperger’s Syndrome diagnosis. This despite the fact that all of his medical expenses were covered by his father’s private insurance, not medicare. There is no followup to the case that I could find but Dr. Reynolds is still listed as faculty at Emanuel College so I can only hope that his reapplication for the family to be considered for permanent residency on compassionate grounds was successful.

Consider also the case of Eniko Reka Kincses and her daughter Boglarka who were denied permanent residency because Boglarka has cerebral palsy. In this case the Saskatchewan government (where they were living) intervened and they were allowed to stay but the reason is worth highlighting,

Health Minister Dustin Duncan and Economy Minister Bill Boyd penned a joint letter of support for the Kincses family to federal officials.

They said Kincses [the mother] was a valuable, skilled worker and assured the federal government the province was willing to cover Boglarka’s “minimal” health care and social services needs”

Enika Reka Kincses wanted to open a care facility, so that she could not only provide care for her daughter herself but would also provide a service that the province sorely needed. Saskatchewan did not see any particular value in Boglarka but rather thought that her assumed deficits were outweighed by the skills of her mother.

This is a trend that continues in both the Montoya and Reynolds cases. The skills and contributions of the parents are highlighted as is to say “on balance if we let them stay at least we benefit from the work of the parents”. Sure, these stories tug at the heartstrings regardless but it’s hard not to wonder how many stories we don’t hear because the parents aren’t highly skilled as an offset to their child’s disability. These stories are more palatable because the disabled person comes with a consolation prize to offset the possible burden they may one day pose.

Disabled people in these scenarios are not seen as having any inherent value beyond that they may be cute children. This is bad enough in the context of what it says about disabled people trying to enter Canada. The problem worsens when you realize that this is essentially how Canada views its disabled citizens.

If disabled Canadians were viewed as having inherent value it would be harder to argue for this discriminatory immigration policy. What the Canadian government and public have to say about foreign disabled people is likely to be a reflection on how those of us who are here by right of birth are viewed.

In order to foster an inclusive society, Canada needs to show that they value all disabled people. Not pay lip service to focusing on those of us who are already here. It’s a little hard to argue that we are valued members of society when people are being excluded from the country for being like us.

Changing the law would not only improve the lives of disabled applicants because they would be considered on their merits (yes they have them, no I’m not suggesting we just let everyone in who applies) rather than have them rejected on grounds that are not only protected under the Charter but in line with international human rights agreements.

Now as I mentioned above, I know Canada is not the only country with discriminatory immigration laws. Everyone seems to be of the opinion that if they open their borders to disabled people, suddenly we will all descend on that country en masse. Again I’m not against all immigration policies so this is absurdly reactionary. Also this mentality fails to recognize that when disabled people are treated like everyone else, we tend to behave like everyone else because here’s the thing that people also miss, if disabled people can come to Canada, we can also leave. People tend to immigrate because they are offered further opportunity elsewhere but I and my fellow disabled Canadians do not have that option despite it being directly addressed in the UNCRPD.

Exclusionary laws like current immigration policy clearly show that the supposed equality we are guaranteed in the Charter of Rights and Freedoms is still little more than a dream. We are in practice little more than tolerated and then only if there is no other option.

It is time Canada led by example and fixed it’s discriminatory immigration policy because both our constitution and international agreement. Changing the law will create a legal precedent to stop the far to common excuse that disabled people are first and foremost burdens. The mentality that allows the odd story of exclusion to hit the news and illicit sympathetic emotions for exceptional cases where there is a cute child or the government seems to have overreached or the loss of a highly qualified parent makes the gamble worthwhile but glosses over the inherent discrimination that created those scenarios in the first place. People don’t want to look at the bigger picture, they are happy to get self-righteous on a case by case basis but ignore or actively support the wholesale exclusion of disabled people.

Changing the law won’t erase prejudice and discrimination in Canada but it will make it harder for those with discriminatory attitudes to justify them. But first the Canadian government needs to address it’s reliance on that prejudice and set an example not only for Canada but for the rest of the world as well. It may become harder for other countries to rationalize their own discriminatory immigration laws with Canada leading by example and advocating for change.

In the end it will help disabled people at home and abroad.

 

Open Letter to Justin Trudeau: We Need a Canadians With Disabilities Act

Dear Justin Trudeau

You have just been elected as our new Prime Minister. Since Monday’s election, you have been in the news a lot. Today, I came across a story about how you helped carry a wheelchair user down the stairs to a subway station platform. I assume this was necessary because the station elevator was broken, though the Montreal Metro is notoriously inaccessible so it could really be anything.

While the media is applauding your “random act of kindness”, I can’t help but be more convinced that we really need a Canadians with Disabilities Act. I know we disabled people were thrown a legislative bone when we were explicitly included as a protected group under Section 15 of the Charter of Rights and Freedoms (after a lot of activism to fight governmental unwillingness, I might add). The Charter is however clearly not sufficient to meet the needs of disabled Canadians.

Physical access is still a huge issue. As are issues of social and economic access. I want to know that you and your government will work to help disabled people even when we aren’t right in front of you. I want legislation that will specifically address the needs of disabled Canadians, yet when I search the Liberal website, you have no specific policies dealing with disability. If you search for it, you will find only a statement on Veteran’s Pensions (which is important). I would however like to point out that by only dealing with disability directly when it is to do with veterans.

By doing this, you are basically creating classes of disabled people. This is likely not your intent but it is the result.

Ideally in a country where disabled citizens are truly equal, a story about a man having to be carried down the stairs–even if it is by Justin Trudeau–would be met with shock and outrage at the inherent inaccessibility of society. Not by celebrating a “random act of kindness” that should never have been necessary in the first place.

A few things I humbly think a CDA should cover,

Increased funding to ensure public transit is accessible, so that we don’t have to repeatedly hear how renovations are delayed due to budget restrictions. If you can afford to get able-bodied people on the subway, you better do the same for disabled people.

Limit bureaucratic barriers to services. As far as I’m concerned, I should only have to continuously prove that I have permanent brain damage if and when you produce peer-reviewed and repeated studies proving the existence of widespread medical miracles. Barring that, requiring constant documentation should only be required for people whose conditions are not permanent and then only at intervals suggested by their doctor not an arbitrary bureaucratic timeline.

Don’t allow provinces to penalize disabled students who travel out of province for school. We shouldn’t have to worry that we won’t be able to get a service in Ontario that we get without question in Saskatchewan.

Disabled Canadians deserve better, so do better,

Kim