When justice does not take into account the diseases that affect women more
The Superior Court of Justice of the Canary Islands (TSJC) has rejected the appeal of a woman who claimed that she be recognized with a degree of disability of 75%, alleging ailments such as fibromyalgia, chronic fatigue syndrome, multiple sensitivity syndrome, among others. In the first instance, he had been recognized with a grade of 19%, so he appealed the sentence, understanding that some of the pathologies were not detailed in the forensic medical report that served as the basis for the ruling of the contested sentence.
The woman understood that “an analysis and comparative assessment of the expert reports was not carried out in order to determine which of them could most accurately resolve the matter.” He understands that the coroner did not take into account assessing fibromyalgia and chronic fatigue syndrome, where he did not give any score and gives the example of a ruling from the Superior Court of Justice of Catalonia that recognized a disability percentage of 65% due to chronic fatigue in a situation identical to yours. Furthermore, he criticizes the fact that multiple chemical sensitivity syndrome was left without assessment, pointing out that the standard itself provides the necessary tools for its scale.
The Social Chamber of the TSJC considers that it is not possible to point out that the expert report is incomplete, inaccurate or lacking rigor and that its assessment must be respected and understands that the assessment of disability responds to unified technical criteria established in the scales. The ruling, however, recognizes that even though fibromyalgia is not considered a disabling disease, “no legal obstacle exists so that each of the deficits or impairments that said rheumatological pathology causes in the various organs, systems or devices of the affected person can be object of the corresponding evaluation”, since “what is valuable is not the clinical diagnosis, but the severity of the consequences of the disease.”
However, the TSJC decides to dismiss the appeal in the royal decree that establishes the procedure for recognizing disability. “It is logical to think that if the legislator had understood that pathologies such as fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivity syndrome should be included in the scale in order to be assessed independently, he would not have missed the opportunity that the promulgation of the new valuation system offered, not believing that it is up to us to do so.”
The Chamber recognizes that the ailments presented by the plaintiff occur mainly in women, but “this circumstance can hardly lead us to a different solution than the one we are giving by dismissing the appeal, since our obligation to judge from a gender perspective does not protect interpretations.” contra legem.” And he adds that the rulings of other chambers (whose criteria they respect even if they do not share them) have “a mere illustrative value since they do not constitute jurisprudence.”
Gloria Poyatos remembers the “historical neglect of women's health”
Judge Gloria Poyatos has cast a dissenting opinion in this ruling, considering that “the appeal filed by the plaintiff should have been upheld and the lower court ruling should have been revoked, recognizing that the plaintiff had a degree of disability of 77%, and the effects should have been assessed. physical and psychological conditions than the ailments of fibromyalgia in grade II, chronic fatigue syndrome in grade II and multiple chemical sensitization in grade IV, which affect the plaintiff.”
Poyatos recalls that Annex I of Royal Decree 1971/1999 applicable to the case, “evidence that there is no way to assess the physical and neurological effects and the pain derived from the previous ailments, which are not even referred to, unlike many other diseases, which has a disproportionate harmful impact on gender as it is mostly women who suffer from these diseases,” he summarizes. And he adds that, therefore, “we are facing a legal loophole, as there is no legal approach for its assessment due to the particular effects that these diseases have,” he emphasizes.
For the judge, this is a regulatory gap that “unfortunately” is consistent with the “historical legislative and scientific neglect of women's health.” This, he affirms, makes it difficult for the purposes of specifying a percentage of disability to access economic, social and labor benefits and is seen as “an indirect institutional discrimination based on sex, since it is mostly women who suffer from the three diseases and in some cases the majority is overwhelming.”
Remember that the Ministry of Health, Social Policy and Equality in 2011 recognized that 81.5% of people affected by fibromyalgia are women. The same occurs in the case of multiple chemical sensitivity. Poyatos maintains that the majority decision of the court opts for rigorism, omitting to apply the gender and disability perspectives and the principle of “due diligence” is violated and that when it comes to protected fundamental rights, the “pro persona” principle must prevail.
The judge emphasizes that the absence of any reference to these feminized diseases is “qualifiable as indirect discrimination and therefore violates” the directive relating to the progressive application of the principle of equal treatment between men and women in matters of social security. “The admission of statistical evidence as a probative mechanism for gender discrimination is recognized by the CJEU,” he clarifies. Likewise, he believes that the disability perspective must be integrated.
“In relation to fibromyalgic pathology, and even starting from the difficulties of its medical assessment and the determination of its functional impact, as it is a chronic disease whose diagnosis must be established by the clinical manifestations, it is very important to pay attention to the severity of the same.” And remember that “generalized osteoarticular pain, measurable through trigger points (18 points that correspond to the most sensitive areas of the body), translate into sensory alterations of which pain is the most common and are deficiencies to take into account. account to determine its severity.”
The International Association for the Study of Pain defines the pain of fibromyalgia as “exhausting,” “miserable,” “intense,” or “indescribable,” with coexisting symptoms such as abdominal pain, headaches, muscle stiffness, fatigue, and unrefreshing sleep. among many others, it being highly common for this disease to be associated with reactive psychological disorders, fundamentally anxiety and/or depression. Therefore, “it is a disease that, given its clinical characteristics, which cannot be objectiveized through diagnostic tests, frequently exposes those who suffer from it to a situation of additional emotional stress derived from personal devaluation and professional discredit linked to prejudices and stigmas.” association with laziness or “feminine” weakness.
“Very likely the disproportionate female impact that accompanies this disease has been the direct cause of its historical devaluation, and misgivings regarding the credibility of sick people may be connected to the stereotype of moral inferiority of women,” says Poyatos. , which adds that “the empirical analysis indicates that we are facing a pathology of female prevalence, which affects its social devaluation and legal invisibility as a disease. On the other hand, androcentrism has not helped in health research, which has taken men as reference models and, as a consequence, there are important “ignorances” in the field of knowledge of women's health.
Likewise, he explains that “chronic fatigue syndrome is a complex neuroinflammatory disease, which can seriously affect the patient's functionality and quality of life. In addition, extreme physical fatigue, which does not decrease or recover with rest, is associated with other general manifestations, such as neurocognitive problems with concentration or memory, pain, migraine and sleep disorders. These statements were also proven in the case of the plaintiff, in final sentences.”
Regarding multiple sensitivity, he points out that “it has an obvious impact on the quality of life and its psychosocial sphere. The activities of daily life (personal autonomy) sometimes become a challenge that makes their relationship with the outside world difficult, for example, the use of public transportation.” And he adds that to evaluate the impact of environmental factors on quality of life there are various questionnaires such as Short Form Health Survey that evaluates health-related quality of life. “In our case, no impact assessment questionnaire has been used,” he points out.
“It can be concluded that the forensic expert report, on which the lower court ruling is based, incurs a serious error in obvious assessment, due to the omission of assessment of the three ailments described and is tainted by the gender biases described,” Poyatos emphasizes. , which adds that “in the case of understanding that the tacit assessment of the aforementioned report is 0%, for the purposes of disability, it is clear that the null assessment of the limitations that they entail in personal life and the loss of functionality of the plaintiff, contradicts those already recognized, even for her daily life, in the factual account of the final sentences mentioned,” he highlights.
Another private vote in 2022
This reasoning by Poyatos was already put forward in another ruling from 2022, when the TSJC also dismissed the appeal presented by a 65-year-old woman diagnosed with fibromyalgia since 2012, who is also a victim of sexist violence and who demanded that a degree of disability greater than 65% (now it is 42%) in order to be able to request a non-contributory pension. Gloria Poyatos then highlighted that fibromyalgia should be assessed independently and not “mixed with other ailments.”
He maintained that the absence of this disease in the 1999 royal decree means “ignoring that when it reaches a certain severity it profoundly affects the capacity of people with disabilities.” And it added that the sentence does not integrate the human rights perspective (in reference to disability) or the gender perspective to avoid incurring indirect discrimination based on sex.
