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The law must adapt to recognise and accommodate neurodivergent individuals

Letlhokwa George Mpedi
By Letlhokwa George Mpedi
6 Mar 2024
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Legal systems must establish and enforce anti-discrimination laws that address the unique challenges neurodivergent individuals encounter, ensuring equal opportunities for employment, fair treatment and reasonable accommodations.

The American author Harvey Blume once said that “neurodiversity may be the birthplace of some of humanity’s greatest minds”. As Blume implied, the very idea of embracing neurodiversity opens up the opportunity for us to create a better-equipped society to support and nurture neurodivergent individuals.

This can propel greater levels of innovation and progress. This idea is particularly relevant in the lead-up to South Africa’s Human Rights Day, which coincides with World Down Syndrome Day. This signals a powerful opportunity to celebrate diversity and inclusivity while advocating for the rights of neurodivergent individuals within the context of human rights.

As a parent to a young neurodivergent boy with Down syndrome, I have exceptional insight into how his unique cognitive landscape can contribute to a richer and more diverse tapestry of human intelligence which not only challenges conventional notions, but also fosters a broader appreciation for the multifaceted nature of intellectual prowess. Embracing neurodiversity in legal frameworks is an acknowledgement of these diverse cognitive landscapes and their valuable contribution to human intellect.

There is a compelling argument to be made that legal systems should better safeguard the rights of neurodivergent individuals, ensuring inclusive policies that respect and protect their inherent dignity while fostering an environment where their unique perspectives and capabilities are acknowledged and celebrated within the broader context of human rights.

The CEO of NeuroAccess, Annie Crowe, says “the lack of acknowledgement and adaptations for our differences, in hearing, movement, sight, thinking, feeling, and more is a human rights issue. Neurodivergence, unlike other groups in the disability community, is invisible. It’s also not absolute… However, the cumulative effect of this neglect of my access needs has a large and significant cost – to me and society.”

She argues for “neuroaccessibility”, a set of guidelines that promote and protect the values, identity and ability to ensure an adequate standard of living for neurodivergent individuals. Without this in place, neurodivergent individuals’ human rights are directly violated.

Variations, not defects


For those unfamiliar with neurodiversity, it essentially advocates for accepting and celebrating neurological differences. Neurodiversity challenges the traditional notion of what is considered typical neurological functioning by recognising the diverse ways in which individuals’ brains work. Conditions such as Down syndrome, autism, ADHD, dyslexia and other neurological differences are considered variations of the human experience rather than defects.

According to the Neurodiversity Foundation, in South Africa, 10% of all children experience neurodivergence to differing degrees. The biggest challenge, however, is that most families do not have access to early diagnosis or treatment, which is incredibly limiting for neurodivergent individuals. This increases the risk of their introduction to the prison or destitution pipelines.
Laws should promote inclusive learning environments that accommodate diverse learning styles.

Importantly, however, as Jonathan Mooney, a prominent advocate for neurodiversity, states, “we do not need to cure neurodiversity. We need to embrace it.”

So, as society evolves in its understanding of these differences, so too must the legal frameworks underpinning our understanding of diversity and human rights. The legal landscape concerning neurodiversity is multifaceted.

To protect human rights, and “neuroaccessibility”, laws need to adapt to the unique needs of neurodivergent individuals. For instance, many neurodivergent individuals face discrimination in the workplace. Legal systems must thus establish and enforce anti-discrimination laws that address the unique challenges neurodivergent individuals encounter, ensuring equal opportunities for employment, fair treatment and reasonable accommodations.

According to Brett Abraham, writing in Polity, in South Africa the accommodation of neurodivergent employees is mainly reactive. To support neurodiversity in the workplace, initiatives should include:

  • Awareness training to educate individuals about neurodiverse conditions and provide tools for understanding and managing them;

  • Establishing easily implementable policies, procedures and workplace adjustment mechanisms;

  • Refining recruitment processes that consider neurodiversity in candidates and identify roles suitable for individuals with neurodiverse conditions; and

  • Fostering communication channels between neurodiverse individuals and their colleagues or managers to help enhance mutual understanding, identify shared experiences, and quickly address any potential “blind spots”.


Regarding education, laws should promote inclusive learning environments that accommodate diverse learning styles. Schools and universities must implement policies that support neurodivergent students through reasonable adjustments to ensure equal access to education.

According to the Structural Learning Project, it is crucial to establish a psychologically safe environment where students feel comfortable expressing themselves and asking questions. Moreover, active listening and positive relationships contribute to the well-being and confidence of neurodivergent learners.

It is imperative to recognise that different brains may require varied approaches to teaching and learning. Monitoring individual progress and adapting lessons accordingly, such as offering online options, can cater to diverse learning needs. Celebrating the strengths of neurodivergent students, such as attention to detail or unique problem-solving skills, can contribute to a supportive atmosphere.
Collaboration between healthcare professionals, educators and support networks can facilitate a holistic approach to neurodiversity.

Additionally, engaging parents in the learning process, seeking their insights on their child’s response to various styles, and providing feedback on mental health conditions can foster a collaborative partnership between home and school or university, ensuring that there is comprehensive support.

Access to healthcare is another fundamental human right and legal frameworks must ensure that neurodivergent individuals receive appropriate and respectful medical care. This includes mental health support tailored to their needs and protection against unethical practices.

Creating sensory-friendly environments in healthcare settings and providing clear communication are essential factors. Additionally, specialised services tailored to the unique requirements of neurodivergent individuals, such as behavioural therapies and social skills training, should be readily available.

To refer back to some of my earlier points, collaboration between healthcare professionals, educators and support networks can facilitate a holistic approach to neurodiversity, ensuring that individuals receive comprehensive and personalised care that considers both their physical and neurodevelopmental needs.

This, of course, merely scratches the surface. There are considerations along every human right that require a reframing of legislative frameworks and societal norms.

Read more in Daily Maverick: Why the concept of neurodiversity should firmly be a part of our language

Importantly, we must work towards fostering “neuroinclusive” societies. This entails legal systems that adapt to recognise and accommodate the unique needs of neurodivergent individuals across various aspects of life.

Boutros Boutros Ghali, former UN secretary-general, said “our contemporary human rights system is heir to demands for human dignity throughout history and across cultures. It expresses the enduring elements of the world’s great philosophies, religions and cultures.”

To build on this idea, we must ensure that our frameworks accommodate and respect neurodivergent individuals. This is not only a matter of social justice, but is inherently connected to the principles of human dignity that form the foundation of our global ethical and moral frameworks. DM

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