Author: Dr. Alida Liberman, University of Indianapolis

Paper: Disability, Sex Rights, and the Scope of Sexual Exclusion

People who have disabilities are often sexually excluded or marginalized: positive portrayals of disabled sexuality in fiction or news media are rare, and people with disabilities are often seen as asexual or disregarded as viable sexual (for example, a 2008 poll found that 70% of Britons would not consider having sex with a physically disabled person). In some jurisdictions, people with disabilities can meet their needs for partnered sexual intimacy through commercial means. However, this option isn’t available in places where the sale and purchase of sex is illegal. Should people with disabilities who live in these places be granted special access to commercial sex?

In my paper, I criticize an article previously published in this journal that gives an affirmative answer to the above question. Jacob M. Appel has argued that jurisdictions that prohibit commercial sex should make a special exemption for disabled people, whose access to sexual surrogacy services should be covered by private and public health insurance plans. The cornerstone of his argument is an appeal to sex rights. He presumes that (partnered) sexual pleasure is a fundamental right that should be available to all, and that preventing disabled people from purchasing sex violates this right (insofar as it makes partnered sex impossible or very difficult).

However, this argument does not yet establish Appel’s conclusion. For we do legitimately restrict people’s ability to exercise their right to sexual pleasure whenever doing so interferes with the rights of others or is otherwise seriously harmful. For example, we generally prohibit sex with anyone who does not consent to sex, as well as public masturbation, exhibitionism, bestiality, consensual incest, and necrophilia, and we do so even for people whose sexual needs can be met only through these practices.

Appel’s conclusion follows only if we have a further argument that granting a special exemption is not seriously harmful. And this is unlikely to be forthcoming, even if we granted that an exemption would not harm sex workers in any way. This is because a special exemption sends a damaging and false social message that disability and sexual exclusion are inextricably linked.

Instead, I propose that the question of whether disabled people should be granted special exemptions to the prohibition of prostitution is fundamentally misguided. This is because being disabled is neither necessary nor sufficient for being sexually excluded. It is not necessary, since there are many people without physical or intellectual disabilities who fail to have their sexual needs met, for a wide variety of reasons. And it is not sufficient, because many people with disabilities are not sexually excluded, and have their sexual interests met through non-commercial means (see this video for just a few examples of such people).

Sexual exclusion—understood for present purposes as desiring to engage in partnered sex and being unable to find a partner—is indeed a source of harm. But I argue that it is the harm of sexual exclusion itself, rather than any harms that are essential to the experience of disability, that proposals like Appel’s should be seeking to remedy. In our ableist society, disability is a frequent cause of sexual exclusion. But to narrowly focus on disability status as the feature that grants one a legal exemption is to conflate the category of disabled people with the category of sexually excluded people. Focusing on disability status as a proxy for sexual exclusion both perpetuates negative stereotypes about disability, and is a less fruitful approach to mitigating the harms of sexual exclusion than is focusing on sexual exclusion directly.

In future work, I plan to more closely investigate the different ways in which sexual exclusion can be harmful, and what our responses to various forms of sexual exclusion should be. People (with or without disabilities) might be sexually excluded in any of the following harmful ways: (1) lacking access to sexual pleasure or gratification (usually due to physical incapacitation for self-stimulation or lack of knowledge about sexual health), (2) lacking romantic or partnered intimacy, and (3) lacking the social or psychological validation that comes from being seen as a sexual being.

What our collective responses to these harms should be will vary. For example, we should seek to give all people access to the opportunity for (non-partnered) sexual gratification. But we cannot guarantee partnered sexual intimacy without unacceptably infringing on the negative sexual liberty rights of others. Rather, I propose that we should work to change the negative social attitudes that make disability a barrier to partnered intimacy and that create stigma and invalidation in the first place (see, for example, this article and this TED talk). As we work to make these social changes, we must be careful not to presume that sexual liberty rights are completely unrestricted, or that disability is always or fundamentally a source of sexual exclusion.

Competing interests: None declared.