Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding
| DOI | http://doi.org/10.1111/j.1467-6478.2016.00762.x |
| Date | 01 September 2016 |
| Published date | 01 September 2016 |
| Author | Nick O'Brien |
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 3, SEPTEMBER 2016
ISSN: 0263-323X, pp. 444±68
Disability Discrimination Law in the United Kingdom
and the New Civil Rights History: The Contribution of
Caroline Gooding
Nick O'Brien*
This article concerns the theoretical and practical contribution of
radical lawyer, feminist, and disability activist, Caroline Gooding to
disability rights in the United Kingdom. It assesses the impact of her
published work in the 1990s and translation of her insights into
practice through her work on the Disability Discrimination Act 1995
and later at the Disability Rights Commission, not least in securing in
legislation a positive disability equality duty. In particular, it seeks to
situate Gooding's contribution within the `new civil rights history',
with its emphasis on the role of lawyer as mediator, facilitator, and
`gatekeeper'. It argues that through her engagement with strategic
law enforcement, law reform, and the wider mobilization of the law,
Gooding created `alternative visions and accounts' of disability and so
forged a decisive connection between disabled people as a social
movement and the law, in ways of exemplary value to social movements
more generally.
INTRODUCTION: LEGAL LIVES AND THE NEW CIVIL RIGHTS
HISTORY
The purpose of this article is to explore the unique contribution to disability
rights in the United Kingdom made by Caroline Gooding,
1
who died in 2014,
and to illuminate that contribution by reference to the `new civil rights
444
*University of Liverpool, c/o 17 Longhurst Lane, Marple Bridge, Stockport
SK6 5AE, England
nick.obrien@ntlworld.com
The author is grateful to Anne Kane and Bob Niven for comments on earlier drafts of this
article.
1 Caroline Gooding, born 1959, died 2014.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
history'.
2
It aims in particular to distil from her thought and practice aspects
of the successful engagement more generally of law with social movements,
and so place an individual legal life in its broader socio-legal context. At its
centre is the dilemma facing all `radical lawyers' who, `as legal professionals
with socialist values, feel something of a common bond and are uneasy with
the conventional professional culture':
3
namely, how to use the law to
achieve social change by harnessing the inherent individualism of the legal
process to collective ambition in the political arena.
Through her engagement with that central dilemma, Gooding's reflections
on the social construction of disability, the ideological force of law, and the
mechanics of legal mobilization, not least in respect of a `mainstreaming'
positive equality duty, retain their salience: in many ways, the challenge of
converting egalitarian aspiration into substantive equality remains as acute
now as in the 1980s and 1990s when she first grappled with these issues. Just
as acute also is the fundamental task of situating disability rights within the
broader discussion of equality and anti-discrimination law. In particular, the
insights of Caroline Gooding still resonate strongly in the key contemporary
debates about the evolution of equality law through stages of individual,
minority group, and universal entitlement;
4
about the significance of `inter-
sectionality';
5
about the possibilities for giving force to positive social rights
entitlement for disabled people in a broader `human rights' context;
6
and the
balance to be struck between a `legal rights' approach and `welfarism'.
7
445
2 Gooding's chief published works referred to: Trouble with the Law? A Legal
Handbook for Lesbian and Gay Men (1992); Disabling Laws, Enabling Acts (1994);
Blackstone's Guide to the Disability Discrimination Act 1995 (1996); editor, with A.
Lawson, Disability Rights in Europe: From Theory to Practice (2005); `Promoting
Equality? Early Lessons from the Statutory Disability Duty in Great Britain' (2009)
29 European Year Book of Disability Law 29.
3 S. Scheingold, `The contradictions of radical law practice' in Lawyers in a
Postmodern World: Translation and Transgression, eds. M. Cain and C.B Harrington
(1994) 265.
4 See, for example, S. Fredman, `Disability Equality: A Challenge to the Existing Anti-
Discrimination Paradigm' in Lawson and Gooding, op. cit., n. 2, p. 199 and, more
generally, S. Fredman, Discrimination Law (2011, 2nd edn.); compare. J.E. Bicken-
bach, `Minority Rights or Universal Participation: The Politics of Disablement' in
Disability, Divers-ability and Legal Change, eds. M. Jones and L.A. Basser Marks
(1999) 101.
5 For example, see Fredman, id. (2011), pp. 139±43.
6 See Fredman, op. cit. (2005), n. 4; S. Fredman, Human Rights Transformed: Positive
Rights and Positive Duties (2008); C. O'Cinneide, `A New Generation of Equality
Legislation? Positive Duties and Disability Rights' in Lawson and Gooding, op. cit, n.
2, pp. 219. Compare T. Burchardt, `Capabilities and disability: the capabilities
framework and the social model of disability' (2004) 19 Disability and Society 735;
M.A. Stein, `Disability Human Rights' (2007) 95 California Law Rev. 75.
7 S.R. Bagenstos, Law and the Contradictions of the Disability Rights Movement
(2009); compare S. Bagenstos `The Future of Disability Law' (2004) 114 Yale Law J.
68; P. Alldridge, `Locating Disability Law' (2006) 60 Current Legal Problems 289.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
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