The direct application of international law by national courts can also play an important role in the implementation of international human rights law applicable to persons with disabilities by respecting relevant international standards and citing precedents in other jurisdictions. In the case of legislation on persons with disabilities, due process must be followed. Despite some legislative progress over the past decade, these violations of the human rights of persons with disabilities in society have not been systematically addressed. Most disability laws and policies are based on the assumption that persons with disabilities are simply unable to exercise the same rights as persons without disabilities. Therefore, the situation of persons with disabilities is often addressed in terms of rehabilitation and social services. Legislation at the national level is fundamental to promoting the rights of persons with disabilities. While the international community recognizes the importance – and growing role – of international law in promoting the rights of persons with disabilities, national legislation remains one of the most effective ways to facilitate social change and improve the status of persons with disabilities. International standards on disability are useful in establishing common standards for disability legislation. These standards must also be duly taken into account in policies and programmes that can reach persons with disabilities and bring about positive changes in their lives. This chapter examines federal disability rights laws and provides an overview of their applicability to the parental rights of Americans with disabilities. In particular, the chapter examines the protections afforded by the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 and their application to the efforts of persons with disabilities to found and maintain families. Translating a convention, norm or international standard into national law and then into local application is slow and complex, but fundamental.
States have the primary responsibility for transforming legislative, administrative and judicial practices to enable persons with disabilities to exercise their rights. States that have become parties to an international convention are legally obliged to apply the provisions of the convention on their internal territory. International law leaves it to States, in accordance with their constitutional procedures, to take the necessary legislative and other measures to fulfil their obligations and to ensure that any person whose rights or freedoms have been violated has an effective and justifiable remedy before independent and impartial tribunals. The impact of discrimination on grounds of disability is particularly severe in areas such as education, employment, housing, transport, cultural life and access to public places and services. The more international disability standards are known, the more likely it is that national courts will comply with these standards. This enables courts to play an important role in interpreting and developing international standards by applying international standards to national disability issues. Title III of the ADA prohibits public housing from discriminating against persons with disabilities by denying them access to full and equal enjoyment of goods, services, or facilities. Public housing includes all areas accessible to the public, including restaurants, shops, banks, pharmacies, law firms, doctors` offices, and hospitals. Under Title III, “private entities are considered public housing if the commercial activities of such entities affect commerce and fall into one of the 12 categories set out in the statutes.” [167] Title III is relevant in this case because it undoubtedly regulates access to private adoptions, since it specifically includes the term “adoption agency” in the definition of public accommodation.1[68] Similarly, providers of assisted reproductive technologies must comply with Division III because they provide services in the office or hospital of a health care provider included in the definition of public accommodation.
The course of the legislative process will vary according to the respective national legal systems. Thus, the inclusion of international human rights principles and standards in national constitutions – or similar documents – remains the most important means of bringing national laws into line with international standards. Title III aims to ensure that persons with disabilities are denied goods or services offered to the public because of their disability. Under Title III, the High Court of Kenya ruled that the directive did violate the right to privacy and violated the fundamental guiding principle of the “best interests of the child”. He ordered that all data be anonymized so that a person`s name could not be linked to their HIV status. In partnership with community leaders, KELIN continues to advocate for compliance with the court decision by raising awareness and supporting schools` efforts to help children living with HIV. In addition, judicial initiatives can prompt the executive and legislative branches of governments to take action in the drafting, implementation and evaluation of disability laws. Courts may also encourage different stakeholders to take action on specific issues. At the international level, several non-binding international instruments specific to disability have been adopted. One of the dominant features of legal thought in the twentieth century was the recognition of law as a tool for social change.
Although legislation is not the only means of social progress, it is one of the most powerful instruments of change, progress and development in society. (2) Adoption of various legislative measures in civil, criminal and administrative law to implement the rights recognized in international instruments. (3) Autonomous functioning of international legal instruments in the national legal order. There are also some cultural and social barriers that have contributed to discouraging persons with disabilities from fully participating. Discriminatory practices against persons with disabilities may therefore be the result of social and cultural norms institutionalized by law. Changing perceptions and concepts of disability will lead to both value shifts and better understanding at all levels of society, as well as attention to social and cultural norms that can perpetuate false and inappropriate myths about disability. One of the dominant features of legal thought in the twentieth century was the recognition of law as a tool for social change. Although legislation is not the only means of social progress, it is one of the most powerful instruments of change, progress and development in society. The proper application of federal disability rights laws for parents with disabilities is essential to achieving and promoting the goals and objectives of the Rehabilitation Act and the ADA, namely the full participation of persons with disabilities in society and protection from discrimination that would limit such participation. Until these laws are properly enforced, persons with disabilities will continue to face barriers in exercising their fundamental right to training and family support. People with disabilities are often excluded from the centre of society and deprived of their human rights.
Discrimination against persons with disabilities takes many forms, ranging from abhorrent forms such as denial of educational opportunities to more subtle forms of discrimination such as segregation and isolation due to the imposition of physical and social barriers. The impact of discrimination on grounds of disability is particularly severe in areas such as education, employment, housing, transport, cultural life and access to public places and services. This may result from the distinction, exclusion, limitation or preference or denial of reasonable accommodation based on disability, effectively nullifying or impairing the recognition, enjoyment or exercise of the rights of persons with disabilities. Next month, in our blog series on disability health and rights accountability, we will look at how our partners are building multi-stakeholder coalitions to achieve their advocacy goals. When cooperation and dialogue do not work, civil society can take legal action to ensure that governments meet their legal obligations. In 2015, the Kenyan government issued a presidential directive requiring district education departments to collect the names of HIV-positive schoolchildren and their guardians. Although the Directive aims to provide more effective care, it exposes children to potential discrimination that can cause real hardship and negatively affect educational performance. Despite some legislative progress over the past decade, these violations of the human rights of persons with disabilities in society have not been systematically addressed. Most disability laws and policies are based on the assumption that persons with disabilities are simply unable to exercise the same rights as persons without disabilities.