#FreeBritney
Clarifying (or deciding) who gets to decide for people with disabilities
This post marks an anniversary that is rather dry but relates to an important concept. Tomorrow is the 12th anniversary of General Comment 1 of the Convention on the Rights of Persons with Disabilities.
Let’s take a step back and explain what that means. There are a number of human rights treaties, with the 2006 Convention on the Rights of Persons with Disabilities being one of the newer ones. While it’s newer, the world has still changed a lot since the era of MySpace and the Backstreet Boys. Negotiating a treaty takes years, so when it’s finally agreed upon, you can imagine how impossible it is to restart negotiations to revise the text
The solution to this problem is the General Comment. The General Comment (which is always capitalized for … reasons) is the main way to elaborate on what a treaty means after it’s been signed. When the committee that is responsible for a treaty believes something needs clarification or elaboration, it can draft a General Comment. Older treaties often have dozens of General Comments while newer ones have just a few.
Tomorrow’s anniversary is for the first General Comment of the Convention on the Rights of Persons with Disabilities, and its focus is on explaining what “equal recognition before the law” means. The Convention says that people with disabilities enjoy “legal capacity on an equal basis” with anyone else, even if they require some support to exercise that right. The idea is that legal capacity – your standing as a person under law – and mental capacity are two different things. This is novel because for centuries courts have treated people with limited mental capacity as not having legal capacity. In fact, the General Comment goes further by prohibiting all forms of “substitute decision-making”, with guardianship being the most common. Instead, States are supposed to ensure there is the necessary support for the person to engage in decision-making. This radical new stance pushed many countries to debate and reform their laws.
All of this might sound esoteric, but there’s a case of this exact issue that you’ve probably heard of. In 2008 at the age of 26, Britney Spears had a mental health crisis in public and was put under involuntary conservatorship, a type of guardianship, with her father as conservator. She was against this, and already a movement to “Free Britney” began by at least 2009. However, the issue didn’t become well known for a decade. Her fans kept the issue going, starting #FreeBritney in 2019. However, it was the February 2021 documentary Framing Britney Spears that brought her conservatorship into the mainstream. The General Comment isn’t direct law in the United States, but it helped begin a conversation to change the traditional approach. With a new legal understanding and popular support, the case changed rapidly. In June 2021, Spears spoke on her own behalf in court saying the conservatorship was abusive. That was the first time she ever spoke in court, not knowing that she had that right! In July, she was allowed to hire her own attorney for the first time. In September, a judge suspended her father from his role as conservator, finding the arrangement was no longer in Spears’s best interest. And finally in November, the conservatorship was formally ended. In her 2023 memoir, she wrote that “the conservatorship stripped me of my womanhood, made me into a child…”.
While “legal capacity on an equal basis” might sound like a dry topic, it’s principles like these that can change people’s lives. It is phenomenal that Britney Spears is now able to live her life, and we hope the same for everyone else this General Comment covers.
