Article by Melissa Cole
This Article develops what the author calls Gimp Theory, a critical legal theory used to examine the legal treatment of disability. The Gimp Theory analysis draws from Queer Theory and applies its concept of closeting homosexuality to disability. In particular, the author describes how the concept of “covering,” or the expectation that gay men and lesbians hide conduct that is constitutive of their identity, such as sodomy, applies equally to disability. Just as the law sanctions homosexual conduct while purportedly protecting homosexual status, the author argues that the Americans with Disability Act (ADA) protects disability status but not conduct that is constitutive of that status.
The Article illustrates how the ADA promotes disability covering by examining its treatment of health insurance. It first explains how insurers' actuarial determinations create artificial distinctions between able-bodiedness and disability and how insurance plans account for this distinction by restricting coverage for treatments generally used only by the minority of insureds given disability status. When restricted treatments are central to bodily autonomy, and, therefore, disability status, insurance plans dictate that beneficiaries cover their disabilities, or conform to expectations of “normal” healthcare decisions.
The Article finally examines how the ADA and its judicial interpretations protect and reinforce this insurance practice. As interpreted, the author explains, Title III of the ADA protects the status of individuals with disabilities by requiring that they be given access to health insurance; it does not protect conduct constitutive of this status, however, because it has been interpreted as not providing a cause of action for plan terms that have the effect of discriminating on the basis of disability. Similarly, the ADA's insurance safe harbor explicitly exempts actuarially justified plan terms from ADA liability. The safe harbor provision thus does not protect the right of individuals with disabilities to engage in conduct constitutive of their disability status. Yet it purports to protect that status by providing an exception to the safe harbor for plan terms that are intended as a subterfuge to evade the purposes of the ADA. In this way, the Article concludes, the ADA reinforces the insurance industry's role in requiring individuals with disabilities to cover, thus compromising their autonomy as people with disabilities.
About the Author
Melissa Cole. Assistant Professor of Law, St. Louis University School of Law. J.D., Columbia University School of Law.
Citation
77 Tul. L. Rev. 839 (2003)