Difficult distinctions in anti-discrimination law: Disfigurement, appearance and disability

Abstract

The Equality Act 2010 provides that someone with a severe disfigurement may fall within the protected characteristic of disability. However, the parameters of the severe disfigurement provision remain uncertain. These parameters are under particular tension from the related concepts of appearance and disability, which partially overlap with disfigurement. This article argues that ‘disfigurement’ should be read as encompassing a broader range of appearance-altering conditions than has yet been recognised. Legal protection should extend beyond conditions such as scarring to include other visible differences. The personal, relative nature of disfigurement should also be recognised; disfigurement should not be viewed as a universal standard irrespective of context, but as a measure of the extent to which a particular person’s appearance is affected by an impairment. Resolving the underlying tension between the concepts of disability and appearance is key not just to addressing disfigurement but also other visible, stigmatised conditions, including obesity.

Towards a better understanding of the social stigma of facial difference

“…Discrimination against, and human rights violations towards, people with FD are still neglected (Swift & Bogart, 2021). In many contexts, the rights of people with FD are not sufficiently protected (Saunders, 2020). This lack of protection concerns financial, medical, educational and other societal domains (Swift & Bogart, 2021).…”

A hidden community: Facial disfigurement as a globally neglected human rights issue

“…These parameters are under particular tension from the related concepts of appearance and disability, which partially overlap with disfigurement." 22 In regards to legislation outside of the UK, further research by Saunders is important to frame the international context. "The variation is perhaps best encapsulated by the position in the United States, where federal law includes 'cosmetic disfigurement' as in impairment under the Americans with Disabilities Act of 1990, but various state and municipal codes also prohibit discrimination on grounds including personal appearance, height and weight and physical characteristics."…”

“…"The variation is perhaps best encapsulated by the position in the United States, where federal law includes 'cosmetic disfigurement' as in impairment under the Americans with Disabilities Act of 1990, but various state and municipal codes also prohibit discrimination on grounds including personal appearance, height and weight and physical characteristics." 22 In Europe, the EU Charter of Fundamental Rights does not offer a definition of disability and instead a definition has developed via case law which does in fact consider social and environmental factors rather than mention of 'physical or mental impairment' as in other jurisdictions. However this does not make protection for people with disfigurements any more explicit.…”

“The elephant in the room”: Disclosing facial differences.

“…2There is significant, but not complete, overlap between the constructs of disability and FD. According to many disability frameworks, FD is considered to be a disability (Saunders, 2020; World Health Organization, 2001). However, some people with FD do not identify as disabled, perhaps because of a lack of FD representation in the disability community and attempts to avoid additional stigma (Swift & Bogart, 2021).…”