On November 5, 1998, I sued a Chilean national airline for requiring me to fly with either a guide dog or a nondisabled companion at my own expense. At the time, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) did not exist. Instead, I based my arguments on the 1980 Chilean Constitution’s right to equality before the law as well as Chile’s 1994 Social Integration of Persons with Disabilities Act. But as my case demonstrated, these norms did not provide effective protection when it came to disability-based discrimination.
The Appeals Court of Santiago decided the provisions I invoked were nonjusticiable. It characterized my dispute not as a disability rights violation but as a “matter between private parties.” Following my unsuccessful appeal to Chile’s Supreme Court, I brought a petition before the Inter-American Commission on Human Rights. My petition forced the state to the negotiating table: I sat across the table from numerous civil aviation representatives and regulators, where I had the opportunity to explain the discriminatory nature of their conduct and the need for legal protections against it. In 2003 the commission approved a friendly settlement agreement between me and the state, which provided for my appointment to the Air Traffic Control Commission under Chile’s federal civil aviation authority. Although my litigation in the Chilean courts was unsuccessful, it was a necessary precursor to my recourse to the regional human rights system. Ultimately, the settlement vindicated my earlier losses and resulted in positive changes to Chile’s air traffic regulations that expanded access for passengers with disabilities from the country.
This experience spurred me to found a program on disability law at a Chilean law school with the aim of laying the foundation for strategic litigation to promote disability rights. There, I organized seminars and other awareness-raising activities throughout the country, including among Chile’s many islands, both to explain emerging disability rights norms and to explore critical intersections, such as the rights of persons with disabilities and Indigenous persons. I also organized trainings for members of civil society organizations and judges on how they could apply the Social Integration of Persons with Disabilities Act and international instruments adopted by the United Nations, including the 1993 Standard Rules on the Equalization of Opportunities for Persons with Disabilities.
To bring the cases themselves, I partnered with law school clinics. Our first case was a petition for constitutional protection (recurso de protección constitucional) challenging the lack of accessibility in public transit. The Appeals Court of Santiago ruled in favor of the Ministry of Transportation, accepting its argument that having reserved spaces for wheelchair users on otherwise inaccessible buses was sufficient. Troublingly, the court also reasoned that persons with disabilities could opt to hail private taxis if they found public transit inaccessible.
Our second case centered on the inaccessibility of television channels, which lacked sign language interpretation during news broadcasts. The National Television Association argued that their subtitles were sufficient to provide access. In fact, the subtitles resembled chyrons in that the words that appeared on screen were minimal and failed to capture the full content of the programs. For example, a subtitle might say, “earthquake,” but fail to indicate the location, severity, or impact on the population. Again, the Appeals Court of Santiago ruled against us, reasoning that these “mini-subtitles” effectively fulfilled television channels’ obligations to provide access to viewers who were deaf or hard of hearing.
Both cases were legal setbacks for persons with disabilities. Our arguments were strong, but they were grounded in broader notions of natural justice that lacked firm footing in Chile’s laws. Nevertheless, both cases generated positive results. Following the public transit case, ahead of its next round of procurement, the Ministry of Transportation commissioned studies on accessibility gaps in the bus system and relevant legal standards. The analyses contained in these studies were incorporated in its procurement process, thereby obliging public transit operators to conform to new accessibility standards. Also, following the television channels case, deaf persons’ civil society organizations organized public protests as well as a roundtable dialogue with television stations. Due to this mobilization, the organizations negotiated an agreement with the stations to include sign language interpretation in their news broadcasts. Later, these developments were codified into law.
My experience with these cases has shown that losses in court can nevertheless lead to positive changes beyond.
We also obtained other favorable decisions, as in the case of a bank employee with a disability whom the bank’s insurance company for employees refused to cover because of their disability. There, in our constitutional protection petition we focused on a provision in the 1980 Chilean Constitution stating “neither the law nor any authority shall make arbitrary distinctions.” The insurance company’s exclusion demonstrated that the discriminatory, disability-based distinction was arbitrary and in violation of this provision. Before the CRPD was adopted by the United Nations General Assembly in 2006, such a decision was an important victory, not just for the parties but for the broader disability rights movement.
My experience with these cases has shown that losses in court can nevertheless lead to positive changes beyond. Indeed, unfavorable court decisions can mobilize civil society organizations to raise public awareness, and these awareness-raising campaigns may later bring about the same aims that the litigant sought to achieve through the courts. Moreover, because these advocacy activities outside the courtroom involve stakeholders beyond the individual litigants, they may be even more likely to affect the broader disability community than isolated courtroom victories. Thus, a cause lawyer should view visibilizing disability rights and engaging the public outside the courtroom as part of their role. This requires, of course, a special kind of conviction and persistence.
Aside from high-impact court cases, another vital cause lawyering strategy is legislative-political advocacy. With regard to persons with disabilities’ right to political participation, I had previously brought an unsuccessful case against a Chilean electoral precinct that had barred a blind person from voting with an assistant of their choosing during the presidential elections of 2005, which violated their right to a free, equal, and effective vote. The local court held that it lacked jurisdiction over this kind of cause of action, because at that time Chile’s law did not expressly recognize such a right, and the Appeals Court agreed. Thus, the case had exposed a critical gap in the relevant legal norms that needed to be addressed in order to guarantee persons with disabilities’ right to assistance while voting.
My subsequent advocacy strategy began with a study recommending amendments to Law No. 18.700 on Popular Elections and Counting in order to promote persons with disabilities’ right to vote. I disseminated the study through academic channels and among the Chilean Parliament. It was also one piece of a larger advocacy campaign, which included workshops for civil society organizations for persons with disabilities, trainings for electoral workers, and a television advertisement produced by persons with disabilities that was aired nationally on public access programs. These efforts ultimately culminated in key reforms that not only recognized the right to voting assistance for persons with disabilities but also enacted broader accessibility requirements for elections.
The CRPD has helped to expand the scope of persons with disabilities’ rights to political participation, namely article 29’s recognition that this right includes not only casting ballots but also running for office themselves.
I believe that a disability cause lawyer’s duties are not confined to securing a positive judicial decision. Rather, they encompass a broader responsibility to guarantee rights in ways that generate changes for the widest number of persons with disabilities possible. Sixteen years after my initial unsuccessful voting rights case, persons with disabilities have undoubtedly participated more and more in elections.
The entry into force of the CRPD has also helped to expand the scope of persons with disabilities’ rights to political participation, namely article 29’s recognition that this right includes not only casting ballots but also running for office themselves. Thus, a key goal within the process of developing the new Chilean constitution became guaranteeing quotas for persons with disabilities among political parties’ candidates lists. A measure establishing quotas for disabled office-seekers was opposed by the Senate’s Commission on the Constitution, Legislation, and Justice. To overcome this opposition, I authored a background paper offering arguments for incorporating a 5 percent quota for candidates with disabilities in the new constitution; this was based on an analysis of Chile’s international obligations following its ratification of the CRPD. I presented this paper before the Senate Commission, arguing not only for the quotas but also for sanctions that would disqualify party lists that failed to comply with the quotas.
Elsewhere in the framework of the elaboration of the new constitution, I approached the Emancipation Circle of Women and Girls with Disabilities (CIMUNIDIS, for its initials in Spanish) about proposing a “popular law” (iniciativa popular) granting constitutional recognition to the rights of persons with disabilities in the spirit of the CRPD that would secure the right to legal capacity, universal accessibility, inclusion of independent living in the community, and participation. Citizens may present petitions for popular laws in the context of setting up a new constitution, which must be considered if they obtain at least 15,000 signatures. By the close of the period for collecting signatures in February 2022, we had obtained more than 16,000.
On March 9, 2022, in accordance with the protocol of the Constitutional Convention, the Commission on Fundamental Rights decided to take up our petition and the additions of several of its members as the basis for a norm that would be presented before the full Constitutional Convention. Advancing this petition entailed a significant commitment by civil society organizations, especially CIMUNIDIS, as they tracked the prescript’s progress, working on it daily and developing detailed briefing memoranda explaining each provision to the convention members. On April 18, 2022, the plenary of the Constitutional Convention adopted various provisions, taking into consideration the original language proposed by CIMUNIDIS. On May 2, the plenary also adopted two provisions that were incorporated into the proposal of new constitution, whose plebiscite will be held on September 4 of this year.
Over time, disability cause lawyers who possess a special kind of conviction and persistence have the power to change their countries’ legal systems.
Another aspect of the debate in the Constitutional Convention about the voting rights of persons subject to guardianship orders warrants mention. There arose an urgent need to oppose a proposal that would “suspend” the voting rights of persons with disabilities for whom a court had appointed a legal guardian. I prepared a briefing paper for the convention members that was rooted in the concluding observations adopted by the United Nations Committee on the Rights of Persons with Disabilities (“CRPD Committee”) with respect to Chile’s initial periodic report on its implementation of the CRPD, which recommended that Chile ensure that no one is denied the right to vote due to disability or based on legal capacity restrictions. Ultimately, the convention declined to adopt the proposed “suspension” of voting rights provision. Not only did we successfully oppose this limitation on certain persons with disabilities’ voting rights, but we succeeded in applying a disability human rights lens throughout the new constitution’s provisions. Thus, the new constitution recognizes that the denial of reasonable accommodations is a form of discrimination, the right to education means an inclusive and quality education, and that accessibility is a component of the right to housing and the right to access the city, among others.
As my experiences suggest, strategic litigation, regardless of outcome, can be combined with other advocacy strategies to bring about the transformative changes called for by the human rights of persons with disabilities. Law schools should ensure that students of human rights learn skills necessary to both litigation and other advocacy strategies. Barriers can be eliminated through both approaches, and both approaches are necessary to ensure that human rights are fully enforced. My experience also shows that over time, laws change and lawyers can change the law. When I began my career as a disability cause lawyer in 1998, Chile lacked many of the legal protections that would have allowed me to win cases in court. Now, the rights of persons with disabilities have been incorporated into the country’s Fundamental Charter, making possible the kinds of court victories that eluded me earlier in my career. Thus, over time, disability cause lawyers who possess a special kind of conviction and persistence have the power to change their countries’ legal systems from not recognizing disability rights at all to securing express guarantees of those rights in their countries’ supreme legal norms.
María Soledad Cisternas Reyes is a Chilean human rights lawyer and the special envoy on disability and accessibility to the United Nations secretary general. She has previously been chairperson of the UN Committee on the Rights of Persons with Disabilities of the United Nations and is a 2014-2015 recipient of the National Prize of Human Rights.
