To better serve clients and community members, court personnel and attorneys should develop an understanding of the intersection between neurodivergence, disability, and LGBTQ+ identities.

Neurodiversity, or neurodivergence, refers to variations in the human brain regarding sociability, learning, attention, mood, or other mental functions.¹ And while neurodiversity recognizes and embraces the natural variations in the human brain and that no two individuals think, learn, interact, or perceive the world alike, terms like “neurodivergent,” “neuroatypical,” and/or “neurovariant” describe individuals who do not abide by what society perceives as typical ways of thinking and/or functioning. In other words, neurodivergence describes and can be used by anyone who does not display a typical (i.e., neurotypical) model of mental functioning.

An estimated 15-20% of the U.S. population is neurodivergent.² A 2018 study found that almost 70% of people with autism identify as non-heterosexual.³ Although neurodivergence is not an inherently queer experience, it can affect an individual’s perception of gender, relationships, attraction, pronouns, and presentation; thus, neurodivergence, as well as dimensions of identity, privilege, and historical oppression, often interacts with LGBTQ+ peoples’ lives. Studies have shown that neurodivergent individuals are more likely to have transgender or gender-expansive identities than neurotypical individuals.⁴

Contributing factors to the increase in neurodivergence in the LGBTQ+ population may involve economic, health, and social disparities and the global epidemic of violence LGBTQ+ individuals face.⁵

Neurodiversity is also an umbrella term encompassing neurocognitive differences, such as autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, Tourette’s syndrome, anxiety, obsessive-compulsive disorder, depression, intellectual disability, and schizophrenia as well as “normal” neurocognitive functioning or neurotypicality.⁶ Moreover, neurodivergence is not a medical term; individuals with these conditions may or may not consider themselves to be neurodivergent or to have a disability.⁷

While not all neurodivergent people consider themselves to have a disability, and no reliable estimate for the number of Americans with disabilities who identify as LGBTQ+ exists, an increasing number of studies have found an association between ASD and gender dysphoria.⁸ It is estimated that anywhere from 6-25% of individuals with gender dysphoria have ASD, and autistic LGBTQ+ adults report higher barriers to health care, unmet health-care needs, self-reported mental illness, and being refused services by a medical provider.⁹

The historical stigmatization of the LGBTQ+ community may create challenges for neurodivergent LGBTQ+ people to disclose these parts of their identities.¹⁰ As with most people who don’t fit neatly into the box of what is considered normal, neurodivergent LGBTQ+ people are often bullied, shunned, treated as outcasts, or otherwise targeted unfairly for being different. It can be difficult for legal and medical providers to accurately access support and services for these clients, and some neurodivergent and/or disabled LGBTQ+ people face specific barriers to education, training, and employment if they disclose their identities. As such, practitioners must be aware of barriers and biases affecting their ability to access justice in the legal system.

LEGAL PROTECTIONS FOR NEURODIVERGENT INDIVIDUALS

Generally, three federal laws provide most of the legal protections for neurodivergent individuals:

• The Americans with Disability Act (ADA)¹¹ is a federal civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including legal, educational institutions, employers, and places of public accommodations.¹²
• The Individuals with Disabilities Education Act (IDEA) ensures students with disabilities receive the support they need to have equal access to education.¹³
• Section 504 of the Rehabilitation Act is a civil rights law that prohibits discrimination against people with disabilities in programs and activities that receive federal funding.¹⁴

Michigan also has at least two laws protecting LGBTQ+ neurodivergent individuals:

• The Persons with Disabilities Civil Rights Act¹⁵ prohibits discriminatory practices, policies, and customs in the exercise of those rights; its purpose is to prescribe penalties and provide remedies and promulgation of rules.
• The Elliott-Larsen Civil Rights Act¹⁶ prohibits discrimination based on religion, race, color, national origin, age, sex, height, weight, familial or marital status, sexual orientation, and gender identity in employment, housing, education, and access to public accommodations.

DISCRIMINATION AT THE INTERSECTION OF NEURODIVERGENCE, GENDER IDENTITY, AND SEXUAL ORIENTATION

Discrimination against neurodiverse individuals is pervasive: It is in our educational, legal, and employment systems and public accommodations. Failing to understand the intersectionality between gender identity, sexual orientation identity, and neurodivergence often leads to discrimination. The failure to understand the needs and services a person requires may be intentional, unintentional, or have a disparate impact on a larger class.¹⁷

The ADA prohibits workplace harassment, employment discrimination, and discrimination in housing and public accommodations. The percentage of Equal Employment Opportunity Commission disability charges related to neurodiversity has increased 10% in the last six years from 31% in 2016 to 41% in 2022.¹⁸

LGBTQ+ people with disabilities under the ADA face unique challenges as a result of their disability status and potential biases related to their sexual orientation and gender identity and expression.¹⁹

The equal protection clause of the U.S. Constitution and Title IX of the Education Amendments Act protect students, including LGBTQ+ students, from discrimination based on sex, which courts have applied to include protections for transgender and gender nonconforming students.²⁰ LGBTQ+ youth and students who are neurodivergent or have individualized education programs or 504 plans — which both serve as blueprints for how schools support students with disabilities—may not have their needs met adequately. Neurodivergent LGBTQ+ people, especially youth, are more likely to face barriers to medical and gender-affirming care.²¹ These issues often present in legal cases, especially in domestic cases regarding custody, parenting time, and guardianship.

ACCESS TO JUSTICE AND CHALLENGES NEURODIVERGENT LGBTQ+ PEOPLE FACE

Courts have recognized that access to justice is a vital part of our judicial system, and the promise of fairness, equality, due process, and liberty are part of the fabric on which it is based. For LGBTQ+ people, however, that promise has not fully become reality.

All individuals deserve to be treated fairly with courtesy and respect without regard to their race, gender, or any other protected personal characteristic. Respectful treatment of litigants by the courts is an important characteristic.

Often, the models or programs chosen by courts either through the probation department, friend of the court, guardian ad litem, or court services may not appropriate for someone who is neurodivergent or not safe for someone who is neurodivergent and LGBTQ+. Documents presented to and reports generated by the court may fail to adequately address the complexities of the needs in a given case. In some cases, requests or court orders set people up for failure before they begin.

One notable example is the AppClose and Our Family Wizard co-parenting apps in domestic cases. On the surface, the apps are very useful in many respects and have helped many families. However, this one-size-fits-all approach and automatic notion of ordering their use disregards whether they could present challenges to parties with difficulties multitasking and/or recognizing what they’re being asked to provide, or if they have a disability under the ADA. In situations not analyzed with that lens early on, litigants may seem defiant, indifferent, and noncompliant with the court’s order — which unfairly benefits the opposing party and often places the neurodivergent party in a defensive posture with the court.

Attorneys representing neurodivergent clients need to explore these issues early in the litigation and determine whether the client can comply with what is required and, if not, why that particular task presents a problem and which solution may be appropriate. Attorneys should be mindful of clients’ challenges and prepare to provide alternatives and/or request accommodations from the court. Early conversations with the client regarding the best method of communication (e.g., phone, text, email) and challenges they may have dealing with court services (e.g., friend of court or probation) are essential.

CONCLUSION

The justice system — and those who work within it — must acknowledge neurodiversity and help those clients navigate the challenges they face. Additionally, neurodiverse LGBTQ+ clients often deal with misconceptions and stereotypes that question their abilities and demean their identities. It is important that we deepen our knowledge of access issues and biases that may arise from a lack of understanding of neurodiversity in the legal sector. Accommodations, education, resources, and training are key to ensuring equality and justice in our legal system.

The author thanks Rory Conlin and S. Kerene Moore for their assistance with this article.