Weaponizing fitness to serve is undermining our democracy 

On Monday, U.S. Rep. Jennifer Wexton of Virginia advanced her most recent legislation on the House floor using text-to-speech assistive technology. Last year, Rep. Wexton revealed her diagnosis with Progressive Supranuclear Palsy (PSP), a rare neurological disability that progressively impairs motor functioning. While not the first elected representative to use assistive technology (Pennsylvania Sen. John Fetterman also communicated through text-to-speech after his stroke), the visibility of her disability matters more than you might think for democratic legitimacy. 

The modern public servant is given two choices when it comes to disclosing disability: keep quiet and pray no one finds out, or disclose and endure the invasive, career-threatening scrutiny. 

Current conversations about disability and fitness generate a distrust of disability, guided by an entrenched risk aversion to perceived physical or mental vulnerability. Despite being the largest minority group in the country, disabled people remain underrepresented in public service.  

As many as 1 in 4 people in the U.S. have some form of disability, compared to an estimated 1 in 10 disabled politicians. Miscalculated risk aversion to disability undermines the accessibility of public service and, as a result, threatens democratic legitimacy and the mission of antidiscrimination laws to advance a pluralistic, inclusive society. As Sen. Elizabeth Warren of Massachusetts remarked about Fetterman’s use of assistive technology: “This just means the Senate caucus looks a little more like the rest of American people who have different challenges, but who are out there doing their jobs every day.”  

Disability visibility in the public sphere has also brought to the forefront conversations surrounding “fitness to serve,” notably around the presidential race. Public debates about the fitness of President Joe Biden, former President Donald Trump and, most recently, presidential candidate Robert F. Kennedy lack nuance and have, to date, treated the existence of disability as a proxy for incapacity to serve. The message is clear: disability is still not entirely welcome in our American democracy; disabled people are appropriately the subject or object of service but are not public servants.  

Debating the qualifications and acumen of political candidates is a crucial aspect of risk assessment in democracy. Employment and disability rights laws do not prohibit an employer from assessing whether the individual can meet the essential job requirements “with or without a reasonable accommodation.” Where do we draw the line between legitimate concerns for the wellbeing of the country’s governance with permissible testing of job qualifications and a deeply rooted prejudicial response to disability?   

Disability has a long history in public service. We now know many politicians, particularly presidents, who either denied or hid disability and illness, from Woodrow Wilson to JFK to Thomas Eagleton, a Missouri senator forced off George McGovern’s democratic presidential ticket in 1972 after just 18 days, when he revealed his hospitalization for depression. Barry Goldwater, a Republican presidential nominee in 1964, faced public scrutiny about his mental capacity when a Fact magazine publisher polled thousands of psychiatrists about the candidate’s psychological fitness. The subsequent libel suit precipitated the “Goldwater Rule,” condemning professional psychiatric opinions without an authorized examination to support them.  

External pressure to hide disability or illness can lead to an alarming lack of disclosure, like the recent delay of Defense Secretary Lloyd Austin to inform top officials, including the president, that he had been hospitalized for three days. Congressional leaders have since raised red flags about Austin’s lack of transparency. But security protocols may inadvertently encourage non-disclosure. Government and military positions frequently require disability disclosure and psychological screenings to determine a candidate’s fitness to serve. As a result, some federal employees fear seeking treatment for psychosocial disabilities that could put security clearances at risk, even though, ironically, delays or failure to access treatment may make the individual less “fit” to serve.  

Even public servants in lower risk positions may face disqualification because of psychosocial disability and mental illness. Lawsuits arising out of the Peace Corps and AmeriCorps for example, point to a poignant issue of gatekeeping service positions from those deemed “mentally unfit.” Applicants to these organizations have had medical clearances denied and job offers rescinded for conditions such as managed minor chronic depression and anxiety, two impairments widely shared in society. Having psychosocial disabilities can prohibit an entirely qualified individual from serving, whether they are undergoing treatment or not — and whether it imposes any actual impairments on their ability to perform their job.   

Today, some politicians find success in being transparent about disability, but it requires diligence and defense. 

 Sen. Fetterman, for example, has spoken extensively, not only about his stroke and subsequent recovery but also about his depression and mental health struggles. Though accommodations have allowed Fetterman to do his job, they haven’t protected him from scrutiny about his fitness to serve, and even led a NBC reporter to ask whether Pennsylvanians would be comfortable with a representative who communicates through live closed captioning, a popular use of assistive technology for disabled and nondisabled people. Communication delays, interruptions and mistakes, however common, visibly manifest incompetence and, by extension, threaten our national security. Social scientists suggest society has a tendency to link small fragments of visible disabilities with deeper lying traits than really exist.  

Candidates themselves critique the merits of their opponents’ platforms using the language of disability and mental incompetency. They openly question the ability of their disabled colleagues and challenge who should be “allowed” to serve the public and who poses a risk. Republican primary candidate, Nikki Haley, for example, called for the use of mental competency tests to screen out candidates over the age of 75. When associations of disability are implicitly intertwined with discussions about “fitness to serve,” stigma guides interpretation of qualification, substituting ableism for legitimate policy disagreements. This reinforces who should be excluded from public service, and to what extent they can (and should) be permitted to utilize legally protected accommodations before their competence is challenged.  

Stigmatization of disability during elections further bleeds into the way we prioritize and address disability discrimination in law and policy. This creates structural barriers to participation in American democracy for millions of people.  

Though social attitudes toward disability have improved over several decades, disability remains an Achilles’ heel for disabled public servants, from the White House to our front-line service corps volunteers. The way we represent and discuss disability in public service matters. People with disabilities are not simply passive subjects of service but must be active public servants participating in democratic governance at all levels.   

Jasmine E. Harris is a professor of Law at the University of Pennsylvania Carey Law School who writes and teaches about disability and antidiscrimination law.  

Laura E. Hannon is a third-year law student at the University of Pennsylvania Carey Law School.