Within the scope of the article “Essential framework of the legal status of sign language: recognition and officiality”, published in the Revista de Llengua i Dret, Journal of Language and Law, this post aims to clarify the meaning and scope of legal recognition and, not least, the content inherent to an official language declaration. A central question is whether the legal status of a sign language regulated by a State in its respective national legal system complies with the parameters defined by international legal instruments such as the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). What are the criteria for determining whether the legal status of a national sign language is compatible with these criteria? What does “recognition” mean under the UNCRPD? Is it equivalent to a polysemic concept of the term official language? What constitutes an official language?
The fundamental aim of the article was to approach an understanding of the legal statutes of sign languages in their respective states, and to identify and clarify the inherent aspects of these in light of the Convention that determines their normative parameters.
According to the UNCRPD, we must read and understand the meaning and scope of Article 21(b) (“accepting and facilitating the use of sign language”) and (e) (“recognising and promoting the use of sign language”). Here, each of the verbs employed – “accept”, “recognise”, “facilitate” and “promote” – entail a number of essential legal implications.
It is important to note that the official language declaration must at least correspond to the scope of protection of the UNCRPD, in the sense that the legal status adopted by the State must meet the minimum threshold of protection provided under Article 21 of the UNCRPD.
Articles 21(b) and (e) of the UNCRPD include a requirement to define and establish the legal status of sign languages with official language declarations to ensure their effectiveness in the daily lives of their respective speakers. It is important to note that the official language declaration must at least correspond to the scope of protection of the UNCRPD, in the sense that the legal status adopted by the State must meet the minimum threshold of protection provided under Article 21 of the UNCRPD. This article provides a minimum threshold of protection for the establishment of legal regimes for sign languages and, above all, the determination of the legal framework adopted by the State in question, compatible with the purposes of the UNCRPD. It is also worth remembering that, while Article 21 allows the respective State to determine, through ways and means to be achieved, its own conditions for the recognition of a sign language as a fully-fledged language, it clearly does not allow a State to freely derecognise or arbitrarily deprive sign-language speakers of access to and use of the language in contravention of the parameters established in the UNCRPD.
Returning to the article cited at the head of this post, two steps were identified in the process of determining the compatibility of the respective official language declarations in two different moments. First, the State must formally declare the recognition of a sign language through legislation that adequately addresses the legal-linguistic situation of the sign language in question. Certainly, the polysemic concept of legal recognition is an evolving, dynamic and multifunctional concept dependent on the sociopolitical, sociocultural and sociolinguistic circumstances of the respective State with varying political-legislative faculties in accordance with the respective legal systems that declare and regulate possible legal regimes.
The State must provide and create the necessary conditions for the exercise of the speakers’ rights to use and access the respective sign language in different contexts of everyday life.
Second, regarding the content of the official language declaration, the State must provide and create the necessary conditions for the exercise of the speakers’ rights to use and access the respective sign language in different contexts of everyday life. In short, the multifunctional concept of official language declaration includes officialisation on the one hand, and officiality (in the strictest sense) on the other, with their respective implications.
For improved understanding, the content inherent to the official language declaration must be implied. This is, once again, a concept with different meanings according to the respective legal orders of the State in question, but one which implies that it must at least comply with the cumulative presuppositions of the declaration of officiality (that is, the existence of the legal framework for this purpose) and, above all, the content of the officiality declared by the State (that is, the legal framework declared by the State has a substantially determined content).
Legal recognition does not always automatically imply the enforceable (and effective in itself) official language declaration in the practical terms of exercising the respective rights to use the language in different contexts. An official language necessarily implies the existence of an adequately effective and sufficiently objective legal framework that defines the conditions of use and access to the language as a full-fledged language, with a materially official character. It is emphasised that legal recognition is seen as a predefinition, and a cumulative, nuclear and unconditional requirement of an official language declaration.
Once again, it is emphasised that the compatibility of the respective legal status that cumulatively fulfils the conditions of recognition and its implications of the official language declaration must have a legal-linguistic substance, that is, the effectiveness of the legal conditions for using and accessing a particular language in different circumstances to the detriment of the generic or abstractly “symbolic” status lacking the legal definition of the enjoyment and exercise of the rights assigned.
In the article under discussion, we analyse the legal regimes pertaining to the respective sign languages of Portugal and the Spanish autonomous community of Catalonia through the lens of comparative law. On the one hand, Article 74(2)(h) of the Portuguese Constitution declares: “Protecting and developing Portuguese sign language as an expression of culture and an instrument for access to education and equal opportunities”. On the other, Article 50(6) of the Statute of Autonomy of Catalonia establishes the following: “Public authorities shall guarantee the use of Catalan sign language and conditions of equality for deaf people who choose to use this language, which shall be the subject of education, protection and respect.” These legal regimes reveal that the scope and intentions declared by their respective states are close to the parameters of Article 21 of the UNCRPD.
Regarding officialisation, the legal meaning and scope of the constitutional recognition of Portuguese sign language is in accordance with the provisions of Articles 21(b) and (e) of the UNCRPD. Likewise, Article 50(6) of the Statute of Autonomy of Catalonia is formally compatible with the purposes of the UNCRPD. It should be noted that, from a formal point of view, the terms established by these legal systems render Portuguese and Catalan sign languages official as fully-fledged languages. However, on officiality (in the strict sense), there are several difficulties of feasibility and effectiveness from a material point of view, that is, practical and enforceable conditions to ensure speakers the full enjoyment and exercise of the rights attributed to them in different contexts.
Constitutional recognition and practical rights need to be made effective through a clear, objective and enforceable legal framework that safeguards deaf speakers in communicative interactions with public authorities.
In Portugal there is no specific legislation that defines and establishes the conditions for the exercise of the rights assigned and that is, by itself, sufficient to ensure constitutional recognition. Constitutional recognition and practical rights need to be made effective through a clear, objective and enforceable legal framework that safeguards deaf speakers in communicative interactions with public authorities. Despite the lack of specific legislation, however, a number of laws on equality and non-discrimination exist. Law No. 46/2006, for example, regulates all public and private entities that discriminate on the grounds of disability through their actions, and sanctions discriminatory practices on grounds of sign language, specifically Article 4(d): “Refusal or impediment to the use and dissemination of sign language”. In the area of education, Article 15 of Decree-Law No. 54/2018 recognises the right of deaf speakers to bilingual education in sign language. Consequently, there is still a need for comprehensive rather than partial regulation of the legal conditions for access to and use of the language in various public services. This situation is not yet complete in light of the provisions of Article 21(b).
In relation to Catalonia, statutory recognition of Catalan sign language was implemented by the law that regulates the statutory recognition conditions under Article 50(6) of the Statute of Autonomy of Catalonia: Law No. 17/2010. This Law regulates the legal framework inherent in the statutory recognition of Catalan sign language as a language specific to Catalonia and, in principle, remains close to the purposes of Article 21 of the UNCRPD. For example, articles 1 and 4 of Law No. 17/2010, which are compatible with the parameters of Article 21(e) of the UNCRPD, require Catalan public authorities to recognise and promote the use of Catalan sign language in public services, for example. However, despite having complied with the provisions of the UNCRPD, the main difficulty is inadequate effectiveness and enforceability in relation to the exercise of practical and effective rights, rather than theoretical or illusory rights, as illustrated in the main concerns identified by the Catalan Federation of Deaf People under the Catalan Agreement on the Language.
Filipe Venade de Sousa
Professor at the Lisbon School of Law at the Catholic University of Portugal and at the Higher School of Education at the Polytechnic Institute of Porto