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The weaker sex: is being male a legally cognizable defect, impairment, or disability?
Louis M Solomon1, Rebekka C Noll, Rebecca Guttman
1Proskauer Rose LLP, New York, New York 10036-8299, USA. Lsolomon@proskauer.com
Insights
This study explores the scientific evidence needed to legally recognize male biological predispositions as a disability. It examines legal and policy implications, including potential criminal defenses, for classifying "maleness" as a disability.
Area of Science:
- Medical science
- Legal studies
- Genetics
Background:
- Men face higher mortality rates from cancer and coronary artery disease compared to women.
- Males are disproportionately affected by various emotional and developmental disorders.
- Genetic predispositions contribute to numerous male health deficiencies.
Purpose of the Study:
- To determine the scientific evidence required to legally classify 'being male' as a disability.
- To analyze the legal and policy ramifications of recognizing male health disparities as a protected category.
- To assess the potential for a 'maleness' defense in criminal law.
Main Methods:
- Review of scientific literature on male health problems.
- Analysis of legal frameworks for creating protected categories.
- Examination of scientific proof for genetic or biological determinants of behavior.
- Assessment of policy implications for legal classification.
Main Results:
- Significant scientific evidence exists for male-specific health deficiencies and predispositions.
- Current legal frameworks may need re-evaluation to accommodate scientifically-based disability classifications.
- Overcoming historical skepticism towards science in legal rulings is a key challenge.
Conclusions:
- Recognizing 'maleness' as a legal disability requires substantial scientific validation.
- Advances in genetics and a broader legal definition of disability are crucial.
- Policy and legal systems must adapt to incorporate scientific understanding of biological determinants.
Abstract:
Compared with women, men die from cancer and coronary artery disease in disproportionately higher numbers and are more susceptible to a host of emotional and developmental disorders. The authors of this article consider what scientific proof or evidence would be required to legally recognize "being male" as a disability, based on the overwhelming number of physical deficiencies to which males are genetically predisposed. The article summarizes major scientific findings on male health problems and explores various laws and policies that might be implicated by treatment of males as a special category recognized by the law. How the law creates categories of individuals and the reasons why these categories are created for legal classification are reviewed. In addition, the potential for a "maleness" defense in the context of criminal law and procedure is assessed. Lastly, the authors examine the policy implications of treating men as a disabled class, and consider how judges, juries, and legislators would view a scientifically based approach to the creation of a class. Given the many false starts in the past, in which the law had embraced what later was shown to be bad science, substantial historical baggage will have to be overcome to convince judges, juries, and legislators that science has now got it in the sense of having established a valid, causal, genetic or biological determinant for behavior. The consideration of a "male deficiency" theory under the law would have to rely on a more inclusive view of legal "disability" and a willingness to allow technologic advances in genetics to inform our understanding of criminal behavior.
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