Eight Problems with Disability Exemptions in Straw Ban Legislation
by Maggie Leppert
Medical exemptions put the onus of responsibility on the disabled individual, rather than the establishment. According to the legislation, people with medical needs must explicitly request a straw in order to receive one. This expectation fails to recognize that not everyone has the communication skills and social capital to do so, as many people with disabilities cannot verbally request this accommodation while others may experience social anxiety that prevents them from doing so. It also represents poor customer service; as Alice Wong writes,”what people don’t understand with bans like this is that having to ask for a plastic straw puts an unfair burden, and scrutiny, on people with disabilities. They should not have to prove a medical need or even disclose their disability status when having a fun night out with friends. This is not hospitality.” Offer first policies, by contrast, can reduce plastic straw use by up to 80%, while still maintaining policies that make all customers feel welcome and accommodated.
Disabled customers must disclose their disability, risking violence, discrimination, and harassment. The disability community knows well the fear associated with disclosing their disability status; as Alice Wong explains, “It's not easy or pleasant asking for help in public spaces like restaurants, because you never know what attitudes you’ll encounter: indifference, pity, or outright rejection.” Not only must they make their disability known to the employee from whom they are requesting the straw, the straw will also signify to all other customers in the space that they have a disability. This inevitably makes that customer a target for harassment and discrimination. As people with disabilities are already 2.5 times more likely to experience hate crimes as our non-disabled counterparts, it is reasonable for us to be reluctant to identify ourselves in public spaces. A customer may not want to disclose for fear of stigma as well; for example, if the person is having a job interview at a local coffee shop, disclosing their identity may cause the employer to reject them as a candidate. For all of these reasons and more, people with disabilities should never be forced to disclose their disability in order to access simple accommodations such as straws. As Cara Liebowitz says, “outing yourself should always be a choice, and not something you need to do to prove you need a necessary accommodation, like a straw.”
Disabled customers will likely face discrimination and judgment from business owners and their employees who have narrow ideas of what constitutes “medical exemption.” Though the intent of this law is not to give store workers the power to decide who counts as a medical exemption and thus “deserves” a straw, this will inevitably happen.The myth of the “disability faker” is as pervasive as it is harmful, and leads to many people with invisible disabilities being denied access to accommodations they need. A simple google search will lead you to thousands of stories that claim to be about disabled “frauds” getting caught in the act, but are really about disabled people being stalked, harassed, and vilified for not fitting society’s stereotypical image of what disability looks like. Every disabled person who has dared to sit on a crowded train, use their handicap parking placard, or ask for extended time on a test has experienced this accusation. As Saigon Flowr says, disability exemptions result in “arbitrary and inconsistent decisions reflecting often inaccurate perceptions about necessity or merit that are framed by ableist biases and assumptions, from individual staff members that may not have the knowledge, understanding, or training about disability inclusion and accommodations.”
The punitive nature of straw ban legislation disincentives accessibility. This legislation establishes fines for establishments who provide or sell single use plastic straws, but does not do so for businesses who wrongly refuse disabled customers access to straws. Fear of exacting fines will likely lead small businesses and vendors to over-enforce this law, erring on the side of caution by denying straws to all customers. Vendors and businesses will also likely stop stocking plastic straws entirely, making the disability exemption moot. We have seen this in Seattle; advocate Shaun Bickley visited over a dozen major chain restaurants in Seattle and found that, to the knowledge of the employees, none of them stocked straws. Seattle has also demonstrated to us that even if disability exemptions do exist, many store owners and the majority of store workers do not know about it, leading them to deny disabled customers their legal right to access a straw. Overall, this law financially encourages establishments to make their stores less accessible for people with disabilities. In a world where the ADA is already under-enforced and public spaces are largely inaccessible, we should be providing incentives to increase accessibility and inclusivity, not discouraging it.
Disability exemptions are largely unenforceable. Even if businesses are aware of disability exemptions, that does not mean that they will comply. The law does not establish a clear and effective method for holding businesses accountable when they wrongly deny disabled customers access to a straw. While it is conceivable that the customer could argue that this is an ADA violation, the vast majority of disabled people do not have the resources to bring a lawsuit every time they are denied a straw. We already know that the Americans with Disabilities Act is highly unenforced, even though it was passed 28 years ago and is very well known. We should learn from this that merely stating that public spaces cannot discriminate is not enough to ensure that they won’t; we need to use every tool in our arsenal to curtail discrimination and inaccessibility, including expanding access to plastic straws.
It violates the disability community’s value of Universal Access. Also known as Universal Design, this philosophy posits that (1) accessibility should be proactive, rather than reactive and (2) accommodations that help people with disabilities help everyone and should be available to all, regardless of diagnosis. An example of this is the “Curb Cutter Effect”; when cities began cutting curbs to create better access for wheelchair users, we did not put up signs saying only wheelchair users may use them. Instead, we allowed mothers with strollers, kids on skateboards, tourists with luggage, and others to benefit from this. By limiting straw access only to people who identify themselves as disabled, we are not only othering and alienating an already stigmatized population, we are decreasing access for everybody. Access is a human rights issue, not solely a disability issue. Alice Wong perfectly describes this when she says “If cafes can offer four types of milk for espresso drinks and restaurants 50 types of wine and beer, small businesses and large corporations can manage offering two types of straws. The key is to have the same level of access for all items. You can accommodate all your customers while reducing waste at the same time.”
The legislation treats disability accommodations as an add on, rather than consulting the community from the onset, further Othering people with disabilities. American society has traditionally dealt with accessibility in a backwards manner; instead of building spaces and creating policies that maximize access from the start, we create systems that exclude people with disabilities and then attempt to adapt after the fact. This form of policy-making further separates and alienates the disability community, while perpetuating the stereotype that disabled people are inconvenient burdens. As Saigon Flowr says “blanket bans don’t work in a diverse society filled with all different kinds of groups of individuals with unique needs and lived experiences, and disabled people shouldn’t be forced to draw attention to ourselves through never-ending requests that you make accommodations for us.”A more effective policy approach would include people with disabilities from the start of the policy making process, rather than treating us as a niche interest group to deal with after the fact. As Lawrence Carter Long says, ““All of this controversy could’ve been avoided if the people making the decisions had just thought to ask actual disabled people about what policies would actually work.”
It represents a symbolic state sanction of the shaming and harassment already directed at people with disabilities using straws. Across the nation, people with disabilities who are voicing their concerns about straw bans are antagonized and harassed in public and online. Straw ban advocates have revealed their ableism as they tell people with disabilities that we can “just go die” if they need plastic straws and that our lives are “not as important” as banning straws. Customers are also being shamed for using straws, even when they need them; twitter user @trishalive shares a story of a waiter regularly asking “Do you want a straw or do you want to save the turtles?” If New Jersey passes a straw ban legislation in any form, it will only provide further ammunition for those perpetuating the culture of shame, judgement, and cruelty against people with disabilities who are simply trying to survive in a world not built for our needs.
Overall, all of these barriers will make it even more difficult to participate in normal social activities, thus pushing people with disabilities back out of public spaces. In the state with the fourth highest rate of institutionalization in the nation, we cannot afford to create any more barriers to community integration. We must work together to make all public spaces more accepting and welcoming for people with disabilities if we hope to truly change the culture that devalues disabled lives. While a non-disabled person may have difficulty imagining why straw bans are such a big deal to disabled people, we hope that non-disabled legislators are able to listen to our concerns and trust our expertise on the issue. As Alice Wong says, “Believe disabled people. Period.”
Our Proposed Solutions
Remove any mention of single use plastic straws from S2776. As we have argued, until there exists a safe, affordable, and sanitary alternative to single-use plastic straws that are accessible to people with disabilities, a straw ban of any kind will be unacceptable to the disability community. We ask that you please refrain from passing any legislation regarding straw use until legislators and disabled self advocates have ample opportunity to collaborate and find solutions that work for everyone. Given the near negligible impact of plastic straw waste (plastic straws make up about.03% of plastic waste), we believe that this bill will be just as effective if it focuses solely on plastic bags and polystyrene foam.
Establish legislation explicitly protecting the right to access plastic straws. Even if New Jersey as a state does not pass any laws banning straws, disabled New Jersey-ans will still suffer, as many companies have started adopting their own anti-straw policies. It is imperative that we take proactive steps to ensure that we can continue to access single use plastic straws to eat, drink, and take medication. This legislation should include three mandates for any vendor that sells or provides beverages: (1) Establishments must keep a small but sufficient stock of single use plastic straws available at any given time. They may supplement, but not replace, this stock of plastic straws with other options, such as biodegradable straws. If they do provide biodegradable straws, a list of possible allergens in the straw must be displayed for the customer to see. (2) Food vendors must provide straws to any customer who requests, no questions asked. It is imperative that the language of the legislation is clear that these requests must always be filled, in order to avoid the issues of discrimination and disclosure outlined earlier. (3) If the straws are not available readily to the customer, the establishment must include a line on the menu or verbally explain to every customer that straws are available upon request.
Support offer first policies and research on plastic alternatives. As Alice Wong reminds us, “customers respond to choice and flexibility.” Given the national support the anti-straw movement has garnered, we can be confident that those who do not need straws will greatly reduce their use. Offer first is a win-win policy, as it reduces the use of plastic straws by up to 80% without making them more difficult to access. These policies are also preferred highly by citizens of all political parties; 75% of citizens support offer first and at request policies. Even the boy credited with starting the anti-straw movement urges advocates for offer first policies over outright bans.
Include disabled voices in further policy making. As S.E Smith points out, “rather than being considered burdens, disabled people should be viewed as incredibly valuable resources for conversations about leading better lives. A lifetime of having to hack, adapt, and subvert a society that says you don’t belong provides a considerable array of skills for rethinking the way we use natural resources.” In order to combat the legacy of ecoableism and the exclusion of disabled voices in the environmentalist movement, we hope you establish an advisory group comprised of disabled constituents to the Environment and Energy committee.