Equal Rights for People with Disabilities: Report

The question of equal treatment for disabled and non-disabled people must begin with the term 'disability': What does 'disabled' mean? How does one define 'disability'?
In the past, this was understood to mean that certain people do not fit the norm of what was defined as a healthy, able person.

The World Health Organisation (WHO) seeks to disseminate a new concept of disability. Such a definition is not oriented towards the deficits of a disabled person, but also includes the social dimensions of our lives. It identifies four tiers, incorporating the following questions:

1.  The question of impairment of physical functions

2.       The question of which activities are limited by this impairment

3.       The question of how such a limitation of activities affects participation in public and social life or cultural opportunities, responsibilities and achievements

4.       Finally, there is the question of contextual factors or consideration of the extent to which individual factors including family background, intellectual capacity, character and the entirety of environmental factors either obstruct or promote participation in social life.

Those who pose such questions and define disability as the WHO does are seeking ways in which disabled people – whatever their personal situation – can achieve greater self-determination and opportunities for participation. To be disabled is no longer to be viewed an object for social assistance and care. An increasing number of disabled people now act on their own behalf, shaping and managing their own lives.

Positive as this sounds, I would like to reiterate that this new concept of disability is a product of our neoliberal era, and that autonomy and personal responsibility will only flourish in an atmosphere of social and community care. So it is of utmost importance to Procap that an equal rights law include enforceable legal rights for disabled people; as a federal judge has said once, legal rights put teeth into morality.

2.             The equal rights discussion in Switzerland

In August 1998, following a parliamentary initiative by Swiss disabled persons' organisations, the 'Equal Rights for People with Disabilities' initiative was launched.

The government rejected the initiative, referring to the Swiss Constitution's existing equal rights provision (Article 8 of the new Federal Constitution).

However, pressure from the initiative led to a government-proposed disability act in order to minimise the initiative's potential political success. This law has since been passed by Parliament. The referendum to be held on 18^th May 2003 will include the 'Equal Rights for People with Disabilities' initiative. This is the situation as it currently stands:

TRANSPARENCY 1: 'Inclusion Initiative in the Federal Constitution Article 8: legal equality”

The primary difference between the current constitutional text and the initiative lies in the guarantee of building access or utilisation of services. Such a guarantee at the constitutional level would mean rights directly indictable at court rather then a mere legislative order.

TRANSPARENCY 2: 'Integrazione dell’iniziativa nella costituzione federale Articolo 8: Uguaglianza giuridica”

3.             Notes on the Equal Rights for People with Disabilities Act

I have a number of copies of the Equal Rights for People with Disabilities Act here in German, French and Italian. You can also find the text in the Internet under
http://www.admin.ch/ch/d/ff/2002/8223.pdf (German), http://www.admin.ch/ch/f/ff/2002/7640.pdf (French) and http://www.admin.ch/ch/i/ff/2002/7333.pdf (Italian).

The People with Disabilities Act has been divided into 6 sections.

-Section 1: This section states the purpose of the act.

TRANSPARENCY 3: Objectives of people with disabilities act

TRANSPARENCY 4: Definitions - article 2 of people with disabilities act

TRANSPARENCY 5: Definitions (continuation)

TRANSPARENCY 6: Scopo della legge delle persone con handicap

TRANSPARENCY 7: Art. 2 Definizioni della legge

TRANSPARENCY 8: Definizioni (continuazione)

          Furthermore, the first section defines the concept of disability, how discrimination is to be understood and the act's area of applicability. Disabled persons' organisations have a particular objection to this section: the law applies only to residential buildings with more than 8 residential units, for which authorisation for construction or renovation will be granted once the law has gone into effect. In addition, it only applies to buildings with over 50 employees. And finally, it applies only to public employment in accordance with federal personnel law, not to private sector employment contract law.

-         Section 2 of the law regulates legal claims and the procedure used to enforce such claims. This is a critical point from our perspective as disabled persons' representatives, in so far as in cases of discrimination against disabled people by private sector sources offering public services, CHF 5,000 is the maximum a court can order in damages to be paid. On the other hand, a right to abolish discrimination exists only in the area of public transportation and utilisation of training and continuing education. A positive aspect is the introduction of the right of appeal and right to sue on the part of disabled persons' organisations (i.e. these rights are not restricted to individuals).

-         Section 3 of the People with Disabilities Act provides for the administrative legal principle of commensurability, especially
– in the interest of economic costs
– in the interest of environmental protection as well as
   conservation
– where transportation and operating safety are concerned.

Unfortunately, the act also provides that the abolishment of discrimination with regard to access to buildings, facilities and residences (Articles 3 a, c and d) can only be enforced if conformance exceeds 5 % of the building insurance value or if renovation costs exceeds 20 % of the new value.

-         Section 4 obligates the Swiss Confederation to offer equal opportunities to disabled people in the personnel sector. Specific programmes are to be developed for different types of disability. Moreover, the Confederation must enact regulations on technical standards for railway stations, communication systems, issuance of tickets and public transport vehicles. Integrative programmes in the areas of education, professional activity, residence, personal transport, culture and sport must be offered as well.

-         Section 5 is directed towards the cantons. They are responsible for ensuring that children with disabilities receive primary education adapted to their specific requirements. Unfortunately, this provision as well is phrased in very general terms.  This is one of the decisive points of criticism against the new People with Disabilities Act.

-         Section 6 has some organisational prescriptions.

4.             Outlook

Opinion pollsters say that the 'Equal Rights for People with Disabilities' has a relatively good chance of success in the 18^th May 2003 referendum, even though 9 of 10 previous initiatives were defeated. Even reasonable success would have a positive influence on the implementation of provisions in the new People with Disabilities Act. In addition, conclusions can then be drawn with regard to future sociopolitical bills. In contrast, an overwhelming rejection of the initiative would be a dismal portent for future sociopolitical improvements.

For this reason, Swiss disabled persons' organisations have assumed great political risk with this initiative. This is the first time that such a central initiative on behalf of disabled people has come to a vote. In conclusion, I would like to give you some Internet addresses where you can follow the results of the initiative on 18^th May from home.

TRANSPARENCY 9: Internet addresses on voting results and arguments for and against

You will also find addresses providing arguments of supporters and opponents of the 'Equal Rights for People with Disabilities' initiative.

Thank you very much.