Dorfman, Doron, Disability as Metaphor in American Law (April 26, 2022). University of Pennsylvania Law Review, Forthcoming, Available at SSRN

“In recent decades, the term disability has become associated with a legally protected minority group of people living with impairments and the social oppression that stems from them. Yet in the legal realm the term disability has also been used as a metaphor that carries over meaning beyond the scope defined in disability law. This article identifies such use of disability as metaphor in two legal contexts. The first is the linguistic use of disability as metaphor for disadvantage, inability and impediment generally. I show how courts and legislators have been using the term to describe an inability to file a claim, inability to continue in a legal role, and disadvantages inflicted by state action in equal protection jurisprudence. The second context is what I call “disability frame advocacy”: when scholars and advocates use disability rights framework, and disability as metaphor for other oppressed identities, to advocate for resources, recognition, and redress, for groups outside of people with impairments (like Black, trans, poor, and homeless people, students who experienced inflicted trauma, and others). This Article is the first to explore both types of metaphoric use of disability in American law. It makes a descriptive claim and a normative claim. First, after excavating the use of disability as a linguistic metaphor in legislation and case law and describing examples of “disability frame advocacy,” the Article connects the two. It suggests that the expansive linguistic use of disability in legal discourse enabled scholars and advocates to engage in “disability frame advocacy” and stretch the concept of disability well beyond the biomedical realm. Second, the Article explains why using disability as metaphor, both linguistically and in advocacy, is problematic. My claim is that using disability as metaphor perpetuates a simplistic understanding of disability relying on an outdated and unidimensional version of the social model of disability thus downplaying the role of impairment and the body/mind. In addition, the use of disability as metaphor disregards and marginalizes the lived experiences of people with disabilities and the history of disability rights. When the concept of disability gets stretched too far beyond the concept of impairment, it dilutes the meaning of what it means to live with disabilities, causing the lived experiences of disabled people seem trivial and commonplace. This Article therefore calls scholars, legislators, judges, and advocates to adopt a bio-psycho-social model of disability and to avoid the use of disability as metaphor and prevent backlash against disability rights and the further marginalization of people with disabilities.”