Technology and Persons with Disabilities

Paragraph 19 adds the acceptability element: scientific education and the products of science should be tailored to the particularities of populations with special needs, such as persons with disabilities. So the requirement of adapted formats is not only in paragraph 35 but is built into one of the four elements of the right itself.

Two ideas that carry marks

Universal design means designing a product, environment or service so that it is usable by the widest range of people without adaptation. It operates before the person arrives. A building with a step and a later ramp has been accommodated; a building designed level was universally designed. In technology the difference is stark and cheap: software written so that a screen reader can interpret it costs almost nothing at the design stage and cannot be retrofitted without rewriting.

Reasonable accommodation is the modification made for a particular person in a particular case, where the general design does not serve them. It operates after the person arrives, and is limited by reasonableness.

The two are complements, not alternatives, and the Committee requires both, at paragraph 35(c) and (e) respectively. The distinction matters legally because they allocate cost and initiative differently: universal design is a standing obligation owed to everybody in advance, while reasonable accommodation is triggered by an individual and can be resisted on grounds of disproportionate burden. A State that relies on accommodation alone has left the excluded person to ask, every time.

The Convention, named and placed

The Convention on the Rights of Persons with Disabilities of 2006 is the governing instrument. General Comment 25 relies on it, citing at footnote 11 particularly its articles 1 to 9, in support of the requirement to raise awareness of capabilities and contributions and to combat stereotypes and harmful practices.

As with the Convention on the Rights of the Child in [Technology and the Rights of the Child], the Convention is not in this book's authority base. It is named, placed, and relied on through what the Committee records of it, and no article of it is quoted here. A candidate should do likewise, and should note that the Convention is the source of the two concepts above, which the Committee uses without defining them.

The Indian frame

Article 14 guarantees equality before the law and the equal protection of the laws, and equal protection has long been understood to permit and sometimes require differential treatment where circumstances differ. Article 15 prohibits discrimination on the enumerated grounds and permits special provision. Article 41 requires the State, within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 41 is the directive principle that names disablement expressly and is the natural citation for the distributive obligation.

Worked example

A State digitises its public services: applications, payments, certificates and grievances all move to a single portal. The portal is built to a modern visual design and is not compatible with screen readers. The State's answer is that any person unable to use it may attend a facilitation centre where an operator will complete the transaction for them.

Which right, and how is it engaged? Article 15(1)(b) read with article 2(2). The applications of science must be accessible without discrimination, particularly where they are instrumental for the enjoyment of other rights, and here they are instrumental for almost every dealing with the State.

Universal design. Paragraph 35(c) requires it, and this is the paradigm failure: compatibility with assistive software is a design property that costs little in advance and a great deal to retrofit. The exclusion was not intended and is complete.

Is the facilitation centre reasonable accommodation? It is an accommodation, and it is worse than it looks. It requires the person to travel; it makes them dependent on an operator; and it destroys the privacy of every transaction, since the operator sees the medical, financial and family information the portal handles. A blind applicant conducts their affairs in front of a stranger while a sighted applicant does so alone. That is not equal access; it is access on inferior terms, and the inequality is in dignity and privacy rather than in outcome.

Adapted formats. Paragraph 35(e) requires that the products of scientific development be disseminated in adapted formats, and paragraph 19 puts the same requirement inside acceptability. The obligation is to make the portal usable, not to supply a human substitute for it.

Participation. Paragraph 35(a) asks who was in the room. A portal that fails this way is almost always one designed without any user who needed a screen reader, which is the design-stage exclusion of paragraph 34 producing the access-stage exclusion.

Measurement. Paragraph 35(b) requires statistics disaggregated by disability. A State that does not measure who is failing to complete a transaction cannot know it has this problem, and cannot demonstrate compliance.

What it does NOT mean

It does not mean technology is uniformly good here. The same automation discussed in [Artificial Intelligence and Decisions by Machines] can exclude: a system trained on data that does not represent disabled users performs worse for them, and a verification step that assumes a particular physical capability locks them out entirely. The point is that the balance in this area is unusually favourable, not that the risks are absent.

Assistive technology is not charity. It is the means by which a right is exercised, which is why the Committee places it under an obligation rather than under welfare.

Reasonable accommodation does not discharge the design obligation. They are separate requirements in paragraph 35, and an accommodation that requires the person to ask, to travel, or to surrender privacy is unequal access even when it works.

And participation is not consultation after the fact. Paragraph 35(a) speaks of participation and contribution in decision-making procedures concerning science, which is a place at the table rather than a comment on a finished design.

Quick revision

• The area where technology is chiefly an enabler, so the legal problem is distribution and design, not restraint.
• Paragraph 34: deep discrimination, for two reasons, physical, communication and information obstacles, and products that do not take account of their specificities and particular needs; and persons with disabilities contribute to the promotion of the right.
• Paragraph 35, seven measures at the least: (a) participation in decision-making, including women with disabilities facing multiple discrimination; (b) statistics disaggregated by disability; (c) universal design; (d) promote technologies facilitating access to scientific education and employment; (e) reasonable accommodation, including dissemination in adapted formats; (f) raise awareness and combat stereotypes, citing the CRPD, particularly articles 1 to 9; (g) free, prior and informed consent where they are research subjects.
• Paragraph 19: acceptability requires science and its products to be tailored to populations with special needs, such as persons with disabilities.
• Universal design operates before the person arrives and is owed to everyone; reasonable accommodation operates after, for an individual, and is limited by reasonableness. Both are required.
• India: articles 14 and 15; article 41, which names disablement expressly.
• The CRPD is not in this book's base: name it, say what the Committee draws from it, quote nothing.

Test yourself

1. Give the Committee's two reasons why persons with disabilities have suffered deep discrimination in the enjoyment of this right, and say why the second is the more significant. Either because of severe physical, communication and information obstacles to accessing basic and higher scientific education and careers, or because the products of scientific progress do not take into account their specificities and particular needs. The second is more significant because it locates the exclusion at the design stage rather than at the point of access: nothing is placed in the person's way and nobody intends to exclude them, but a product built without them in mind is unusable by them, and the effect is as complete as a barrier. It follows that the remedy cannot be limited to removing obstacles after the fact and must reach the design itself, which is why the Committee requires universal design and participation in decision-making.

2. Distinguish universal design from reasonable accommodation and explain why both are required. Universal design is the design of a product, environment or service so that it is usable by the widest possible range of people without adaptation; it operates before any particular person arrives, is owed generally, and in technology is usually cheap in advance and expensive to retrofit. Reasonable accommodation is a modification for a particular person in a particular case where the general design does not serve them; it operates after the person arrives, is triggered by them, and is limited by reasonableness so that it can be resisted as a disproportionate burden. Both are required, at paragraph 35(c) and (e) respectively, because each fails where the other is absent: design cannot anticipate every individual need, and accommodation alone leaves the excluded person to ask every time, on terms that are often less private and less convenient than those enjoyed by everybody else.

3. List the measures paragraph 35 requires States to adopt at the least. To promote the participation and contributions of persons with disabilities, including women with disabilities who face multiple discrimination, in decision-making procedures concerning science; to develop statistics on access to science and its benefits disaggregated by disability; to implement universal design; to promote technologies that facilitate access to scientific education and employment; to ensure that reasonable accommodation is provided so that they can access scientific education and employment and benefit from the products of scientific development, including diffusion and dissemination in adapted formats; to adopt appropriate measures to raise awareness of their capabilities and contributions and to combat stereotypes and harmful practices; and to ensure that they have given their free, prior and informed consent when they are subjects of research.

4. A State offers a facilitation centre where an operator completes online transactions for anyone unable to use its portal. Is that equal access? No. It is an accommodation rather than access, and it is unequal in three respects that the framework recognises. It requires the person to travel, so the transaction costs them time and money a sighted user does not spend. It makes them dependent on another person's assistance, removing the independence the service gives everybody else. And it destroys privacy, since the operator sees whatever the transaction contains, including medical, financial and family information, so the person conducts their affairs before a stranger while others conduct theirs alone. The inequality is therefore in dignity and privacy rather than in outcome, and paragraph 35(c) and (e) require the portal itself to be usable and disseminated in adapted formats rather than a human substitute to be provided for it.

5. Why does the Committee say that persons with disabilities contribute to the promotion of this right, and which element of the right does that statement belong to? Because it treats them as participants in science and not merely as recipients of its products, stating in paragraph 34 that they bring unique perspectives and experiences into the scientific landscape and thereby specifically contribute to the promotion of the right. The statement belongs to the third dimension of accessibility, the open opportunity for everyone to participate in scientific progress without discrimination, under which States must remove discriminatory barriers that impede participation. Its practical importance is that it supports the obligation in paragraph 35(a) to include them in decision-making procedures concerning science, which is a claim to a place in the process rather than a claim to the output of it, and it supplies the answer to the design-stage exclusion identified in paragraph 34.