Equal accessibility for sign language under the Convention on the Rights of Persons with Disabilities.

• Author: Ball, Andrea R.
• Position: Divided Loyalties: Professional Standards and Military Duty

Achieving recognition of sign language as a protected and full language is a plight of Deaf sign language users. National recognition provides rights to access, advancement, and protection of the dominant means of communication for most Deaf individuals. Despite the positive implications of official recognition, many countries either refuse to recognize sign language, attempt to unify regional sign languages into one common, socially-constructed language, or simply manually code the majority spoken language. Regional and minority sign language users have no recourse as they find themselves excluded from official recognition as a domestic linguistic minority. Appealing to international human rights law likewise proves futile due to the inherent difficulties in classifying the Deaf as a linguistic minority. Shedding the linguistic minority framework, this Note will argue that classifying Deaf sign language users as disabled offers greater linguistic rights and protections than under a linguistic minority classification. Through the Convention on the Rights of Persons with Disabilities, sign language users have greater rights and States have explicit obligations to recognize and protect minority sign languages.

1. INTRODUCTION II. OFFICIAL AND NATIONAL SIGN LANGUAGES III. MINIMAL PROTECTION UNDER INTERNATIONAL LAW IV. SIGN LANGUAGE ACCESSIBILITY UNDER THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES V. RECOMMENDATIONS FOR ACHIEVING SIGN LANGUAGE ACCESSIBILITY UNDER THE CRPD A. Defining an "Undue Burden" B. Applying the Undue Burden Standard to Sign Language Accessibility in Public Services C. Resolving the Burdens of Full Accessibility for All Sign Languages VI. CONCLUSION I. INTRODUCTION

   In 2009, the World Federation of the Deaf and the Swedish National Association of the Deaf issued a report entitled "Deaf People and Human Rights." (1) Drawing data from surveys completed by ninety-three countries, the report outlined several areas of concern for the Deaf (2) community around the world. (3) The findings concluded that in many countries, Deaf individuals are deprived access to "large sections" of society due to a lack of recognition of sign language, a lack of bilingual education, and a limited availability of sign language interpreting services. (4)

   The common link among these barriers is sign language. Sign language, the "most appropriate" first language for the Deaf, (5) is an obstacle to accessibility due to the failure of many countries to officially recognize it as a language or national language. (6) Yet even after official recognition is obtained, there is still uncertainty those Deaf individuals who do not communicate through a recognized (such as a national sign language) or majority sign language lack accessibility (7) to public services and facilities. One reason behind this deprivation of access is the Deaf community's unsettled status as a linguistic minority. (8)

   This Note explores the negative implications of classifying the Deaf as a linguistic minority. Part Two presents a brief overview of official sign language recognition with a focus on national sign languages. This overview includes several case studies exemplifying the cultural implications of official recognition on sign language users. Part Three reviews the lack of protection and recourse in several human rights instruments for individuals who communicate through unrecognized or minority sign languages. This section includes a relevant discussion of why national sign languages, though beneficial, are theoretically detrimental to achieving accessibility for the Deaf under a linguistic minority approach. (9)

   Part Four details the impact of the Convention on the Rights of Person's with Disabilities (CRPD) (10) and explains how classification as "disabled" under the CRPD, though controversial, would be a positive step for the Deaf community. This Note proposes that shifting from a linguistic minority approach into the disability rights framework of the CRPD (11) may provide greater opportunities for linguistic accessibility and protection for the Deaf--regardless of the form of sign language an individual uses to communicate. Specifically, this Note focuses on a state's obligations under the CRPD to recognize and adopt official or national sign languages while providing accessibility and preserving cultural identities--important values to the Deaf signing community. (12)

   To ensure that states ratifying the CRPD fulfill these obligations, (13) Part Five of this Note proposes guidelines for the CRPD tailored to the Deaf community. These guidelines include defining an explicit "undue burden" standard that obligates states to utilize all possible resources to accommodate Deaf individuals. The additional proposed guidelines are focused on strengthening the state's duty to furnish the most effective means of communication possible for a Deaf individual, thus opening up accessibility to public services and society.

2. OFFICIAL AND NATIONAL SIGN LANGUAGES

   Despite the benefits, official state recognition of sign language as a language can act as both a condition and barrier to accessibility in the public realm. For spoken languages, recognition often entails designation as either an "official" or "national" language. (14) In many cases, states formulate national languages as a means to stabilize the state. This encourages state parties to bypass offering protections to minority languages within the state's borders. (15) Under the guise of a "national" language, states assimilate indigenous linguistic groups, cultural groups, and immigrants into the majority factions. (16)

   Though intended to unify and stabilize, national languages transform into a survival mechanism. (17) Minority language users are compelled to learn the language in order to freely function within the domestic political and civil system. (18) As a result of the state's freedom to choose which language(s) are deserving of this official status, (19) speakers of minority languages, as well as individuals who are simply unable to learn and acquire the designated national language, experience linguistic persecution. (20)

   Similar to the treatment of spoken languages discussed above, states that recognize sign language as an official language may then attempt to standardize and unify the various forms of sign languages for political stability. (21) Although they lack a written component, sign languages are considered a full and genuine language. (22) Over time, Deaf individuals came together from around the world to form communities that developed natural sign languages with distinct signs and cultural practices. (23) These distinct sign languages, also known as "shared sign languages," now act as a source of political and social identity for Deaf communities dispersed throughout the world. (24)

   Since these distinct communities and sign languages developed around the world without regard for geographic neatness or boundaries, (25) it is challenging to identify a specific region solely by the content of a single sign language. (26) With such variation among sign languages, official recognition of sign language is a priority for Deaf communities because of the benefits and protections afforded to individuals who communicate in state-recognized languages. (27) This suggests that assimilation into a single, "official" linguistic minority is therefore in the best interest of the Deaf sign language community. (28)

   Official state recognition of sign language, however, can undergo various formulations that effectively downgrade the status of certain sign languages within a state. Foremost, implementing a national sign language involves language planning. (29) Language planning may consist of deliberately changing or altering existing languages. (30) Alteration is notably prominent in the development of some national sign languages. For example, instead of officially recognizing all sign languages, many states artificially create a national sign language by manually-coding the state's dominant oral or written languages. (31) Although manually-coded languages are not considered a natural sign language, (32) their intent is to encourage the acquisition of reading and writing skills. (33) Another type of artificial sign language involves finding commonalities among regional sign languages (34) and formulating a single sign language by unifying the numerous distinct minority sign languages. (35)

   Under these methods, it appears insensible for some countries to even attempt and define a national sign language without ignoring the cultural value and importance of different natural sign languages. (36) While standardized languages are beneficial because they provide access and educational value to Deaf students, it is imperative to incidentally promote and protect Deaf culture---a protection that cannot be achieved through recognition of one sign language. Many different forces (37) affect language choices, such as political borders historical, events, and social reasons. (38) These forces vary among Deaf communities and render it difficult to find cohesion in one single, national sign language. (39)

   Several case studies exemplify the potential negative implications inherent in official recognition of sign language. First, linguists in both the Netherlands and South Africa witnessed firsthand the intricacies of adopting a common sign language. In the Netherlands, researchers developing the Sign Language of the Netherlands (SLN) in the early 1980s observed regional variations in the sign language utilized in the five Deaf schools around the country. (40) The researchers decided to take these regional variations into consideration when formulating SLN because of the risk that Deaf communities would not accept the national sign language if their regional signs were not included. (41)

   Analyzing the variations, the researchers concluded that while some regions shared common signs, other...