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What is disability - a biological or social condition? In the conventional equality frameworks, the division between biology and social identity puts disability at the bottom of the formal equality hierarchy, but at the top of the substantive equality hierarchy. Compared with race and then gender, disability deserves the least protection against formal discrimination, on the theory that disadvantages are based on real and relevant functional differences more than on suspect social judgments. But turning to substantive equality, disability’s supposed greater biological basis justifies affirmative accommodation of difference, compared to the social differences of race, with gender in the middle as a mixture. But for both of these equality scales, the social versus biological division undermines the protection seemingly given to the identity at the top of the hierarchy. By adding sexual orientation to the hierarchy, and by showing how Kenji Yoshino’s analysis of “covering” destabilizes the biological-social division, I further explore the problematic nature of these hierarchies and disability’s position within them.

Two contrasting areas of disability law show the limits of this theoretical biological and social divide. Many states’ workers’ compensation systems recently have embraced a biological model of disability benefits that focuses on the American Medical Association’s Guides to the Evaluation of Permanent Impairment. On closer examination, the AMA Guides concept of biological “impairment” is thoroughly dependent on social and normative judgments, and serves mainly to reduce protection of disability. In contrast, the Supreme Court interpreted the Americans with Disabilities Act with a social model that rejected “impairment” as the basis for defining disability, but that approach similarly served to rationalize reduced protection for disability. Instead, disability doctrine - and equality law in general - should be re-oriented to reject this central division between biological and social origins.

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Washington University Journal of Law & Policy

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Originally published in the Washington University Journal of Law & Policy, 33 Wash. U. J. L. & Pol'y 109 (2010).