Disability, Sex Work, and the Law: A Comparative Case Study of Two Judicial Rulings

Abstract

The intersections between disability, sex work, and the law are complex and intertwined. The paper aims to uncover how courts approach this entanglement and conceptualize disabled sexuality. Our account will illustrate how social norms, legal frameworks, international standards, and disability rights intersect in judicial outcomes and reasoning. The paper employs a case study methodology and disability theory. It offers a detailed analysis of two case studies that share a similar story, that of a disabled individual seeking funding for some sexuality-related services. Yet, they differ in many other perspectives; they were given 15 years apart by courts in different countries with distinct social and legal contexts. An Israeli case from 2006 highlights the challenges faced by a disabled individual in the absence of a formal disability rights framework, reflecting broader debates about the meaning of sexuality in the lives of disabled people, and an Australian case from 2020 centers on the inclusion of sexual services within disability support schemes, touching on issues of sexual rights, participation, and disabled individuals’ needs. This comparative approach highlights the evolving nature of judicial views on disabled sexuality, revealing both a gradual recognition of disabled individuals’ sexual rights and needs, alongside persistent stigmatizing and ableist misconceptions of disabled sexuality.

1. Introduction

The recognition of disabled individuals as sexual beings is not self-evident and has encountered strong opposition or recoil over the years. While disability rights movements and legislation brought about significant changes in our social and legal understanding of living with a disability (Oliver 1990; Shakespeare 2013; Degener 2016; Bickenbach and Felder 2018), accepting sexuality as a significant component of disabled individuals’ lives was a much slower and hesitant process. The journal Sexuality and Disability has been in print since 1978, and Hepner’s (1979) “Sexual expression and the mentally retarded: The lawyer’s role” offered an early exploration of sexual expression among disabled people. Nonetheless, the concept of “disabled sexuality” only gained wide currency decades later, following Shakespeare’s article titled “disabled sexuality: twords rights and recognition” (Shakespeare 2000).

Over time, the notion that society has a pivotal role in constructing and de-constructing disability extended to include issues of intimacy and sexuality (Wendell 1996; Shakespeare 2000; Sherry 2004). Eventually, the legal discourse surrounding disability rights raised important voices advocating for recognizing sexual rights as part of the agenda (Sherry 2004; Sanders 2007; Shildrick 2007, 2013; Mor and Pikkel 2019).

Nonetheless, as this paper claims, the notion of disabled sexuality remains heavily rooted in stigma, ableist ideas, and misconceptions (Cook 2000; Nosek et al. 2001; Perlin et al. 2017; Shakespeare and Richardson 2018; Foley 2019). These misconceptions are still a critical barrier to inclusion and participation in all realms of life. Some of the most persistent perceptions are of disabled people as undesirable partners (Shakespeare et al. 1996; Shakespeare 2013; Mor and Pikkel 2019), a-sexual and child-like, unwilling or unable to participate in sexual relationships, to give or to receive sexual pleasure (Tepper 2000; Shakespeare and Richardson 2018; Pikkel and Gershuni 2023). As we will show, these perceptions still shape legislation and judicial reasoning today.

Debates and discussions accompanying changes in the legal status of sex work, both legalization and criminalization alike, often evoke disability and the rights of disabled people to sex as a pro-sex work argument.1 These arguments also infiltrate the judicial text, in different types of cases, tribunals, and fields of law. A close reading of relevant verdicts reveals that judges, similarly to other stakeholders and ordinary people alike, often discuss the role of paid sexual services as a way to satisfy the sexual needs and rights of disabled people. Considering judges’ and court decisions’ role in mirroring and shaping socio-legal ideas and concepts, it is critical to explore whether and how they manifest in judicial reasoning, affect decision-making and rhetoric.

It is now reasonably acceptable to view disabled people as sexual beings and even respect their right to sexuality (Sanders 2007; Shildrick 2007, 2013; Shakespeare and Richardson 2018). However, the premise of this paper is that misconceptions and stigma still underlie the way we understand what those sexual rights are. Paradoxically, Legal cases that address claims regarding disability sexual needs or rights and ruling in favor of the disabled plaintiff echo stereotypical ableist rationalizations, posing yet another obstacle for disabled persons in pursuit of intimate relationships.

The main objective of this paper is to explore how courts address and conceptualize disabled sexuality in the context of paid sex work. We aim to uncover the judicial perceptions about disability, sexuality, and sex work underlying reasoning and decision-making. Our account will illustrate how pre-conceived notions, social context, local legal landscape, and international standards manifest in judicial texts. This paper will provide a comparative case study analysis of two legal cases that share a similar story of a disabled plaintiff seeking funding for sexuality-related services. Yet, the background to the story will differ dramatically, as they took place in two separate countries, in two different decades, and in contradicting socio-legal contexts. The cases will vary in the country of origin, year of issue, tribunal, case type, disability rights legislation, and the country’s legal status of sex work. The first is the Israeli case of Ploni V. Migdal Insurance Company: this was a case brought forward by the plaintiff following his disablement in a car accident for compensation for harm to his sexual functions. The second is the Australian case of WRFM V. NDIA, which discussed the meaning of a clause in the national disability scheme and whether it can be interpreted to fund sex workers’ services. We will carefully analyze each court case separately and comparatively to identify similarities and differences in legal context, judicial reasoning, and rhetorical choices. We aim to uncover how judges perceive and define the sexuality and sexual rights of people with disabilities in the context of sex work and trace the perceptions underlying judicial rulings. Anchored in disability legal studies (Mor 2006; Kanter 2011; Heyer 2015), this paper investigates the interplay between legal discourse, judicial rhetoric, and social views of disabled people’s sexuality.

While sex work is a highly debated issue, this paper will not take a normative stand on whether it should be legal or legitimate; it will rather focus on perceptions and attitudes toward disabled persons’ sexuality and on disabled persons’ struggle for equality and inclusion in the realm of sexuality. The legal status of sex work in each country will be part of each case’s context but not a focus of inquiry.

Our analysis will demonstrate that social norms, legal frameworks, and persistent assumptions closely shape judicial approaches to disability and sexuality. Courts increasingly acknowledge sexuality as a fundamental aspect of human life, yet they often stop short of recognizing it as a human right. The study highlights how legal reasoning can both challenge and reproduce stigmas and barriers faced by people with disabilities.

2. Disability, Social Barriers, and Sexuality

Disability rights activists and scholars have significantly changed how we perceive life with a disability and what it means to be a disabled person (Shakespeare 2006; Stein and Stein 2007; Vanhala 2011). The understanding of disability has shifted from personal tragedy with a robust medical focus (Oliver 1990; Davis 1995; Linton 1998; Drum 2009; Goodley 2010) to a socially constructed idea, minimizing the role of individual impairments and accentuating societies’ responsibility to accommodate the full scope of human abilities (Oliver 1990; Davis 1995; Abberley 1997; Charlton 1998; Shakespeare 2006; Drum 2009; Goodley 2010). On the social front, the disability rights movement advocated for disabled individuals to make their own life decisions—“Nothing about us without us” (Charlton 1998) and introduced the notion of disability rights (Davis 1995; Linton 1998; Mor 2019). Later theories developed affirmative approaches based on human variation and disability pride (Swaine and French 2000; Drum 2009). Current socio-critical models of disability focus on how different social barriers, including policy, inaccessible spaces, economic disparities, stigma, and perceptions, hamper equality and inclusion (Shakespeare 2006; Goodley 2010).

In the legal realm, the disability rights approach addressed disability as a human and civil right and focused on legal recognition and remedies against discrimination and rights violations (Silvers 1998; Swaine and French 2000; Stein and Stein 2007; Bagenstos 2009). This shift led to the enactment of disability rights legislation worldwide, such as the Americans with Disabilities Act (1990) in the USA, The Equal Rights for People with Disabilities Law (1998) in Israel, The Disability Discrimination Act (1992) (DDA), and many others. These laws provide lists of protected rights, mostly addressing anti-discrimination and access. The enactment of disability rights legislation brought the disability cause into courtrooms and assigned judges the role of their implementation, protection, and promotion (Mor 2006; Vanhala 2011; Kanter 2011; Heyer 2015). Later, the 2006 UN Convention on the Rights of People with Disabilities (CRPD) articulated a comprehensive vision of disability rights and the core principles necessary for their realization.

For the first few decades, disability advocates and scholars paid little attention to sexuality. The pioneering work of Shakespeare et al. (1996) incorporated sexuality into the disability agenda. Their work underpinned the prevailing narratives and identified patterns in how society (mis)understood disabled sexuality (Shakespeare et al. 1996; Shakespeare 2000; Tepper 2000; Shildrick 2007; Shuttleworth 2007; Shakespeare and Richardson 2018). In the following years, researchers identified numerous social barriers that exclude disabled people from the sexual realm. The common denominators of many of these barriers are lack of access, need for assistance or accommodations, and persistent stigma. Inaccessible spaces hinder the possibility of meeting potential partners and forming intimate connections (Emens 2009; Perlin and Lynch 2016; Shakespeare and Richardson 2018). This paper focuses on stigmatizing perceptions, and the ways in which they still shape how society treats disabled people (Shakespeare et al. 1996; Shakespeare 2000; Tepper 2000; Shildrick 2007; Shuttleworth 2007; Shakespeare and Richardson 2018). People with disabilities are considered undesirable, a-sexual and child-like, unwilling or unable to participate in sexual relationships, to give or to receive sexual pleasure (Tepper 2000; Shakespeare and Richardson 2018; Pikkel and Gershuni 2023). In general, the sexual needs and desires of disabled people are often disregarded or addressed in a narrow context of sexual consent (Lyden 2007; Boni-Saenz 2015), reinforcing perceptions of vulnerability and incapacity (Cook 2000; Nosek et al. 2001; Perlin 2008; Perlin et al. 2017; Shakespeare and Richardson 2018; Foley 2019).

As the paper demonstrates, social perceptions influence and are influenced by legal frameworks; therefore, in the context of disability and sexuality, we will trace how the above-listed perceptions and social barriers manifest in judicial outcomes and rhetoric. The paper will explore how international human rights standards inform national court decisions, how judges conceptualize sexual rights for people with disabilities, and how factors like gender and sexual orientation influence judicial analyses. We will investigate how social assumptions about disabled individuals (such as the assumption of undesirability, meaning that disabled people are perceived as undesirable partners) contribute to their marginalization from the sexual sphere (Carvalho et al. 2013).

3. Sexual Rights and Disability

Sexual rights are a relatively new and contested way of addressing human sexuality (Miller 1999; Mattar 2008; Richardson 2017). While Article 8 of the European Convention on Human Rights (ECHR) protects the right to respect for private and family life, that can be interpreted to include sexual autonomy, international Human Rights mechanisms have not yet explicitly acknowledged sexual rights (Gruskin et al. 2019; Gruskin and Ferguson 2003). Without a clear consensus on the status of sexual rights, there is no widely accepted definition. The WHO defines sexual rights as “The application of existing human rights to sexuality and sexual health constitute sexual rights. Sexual rights protect all people’s right to fulfill and express their sexuality and enjoy sexual health, with due regard for the rights of others and within a framework of protection against discrimination” (World Health Organization 2006).

Sexual rights were initially categorized as sexual and reproductive rights, with a focus on procreation and health (Miller 1999; Mattar 2008; Richardson 2017). Human rights scholars criticized the term sexual and reproductive health and rights, as it does not address all aspects of human sexuality and underplays the importance of sexual pleasure. (Corrêa 1997; Miller 2000). A common thread in recent sexual rights scholarship addresses the broadness of the term sexuality; its many aspects and interpretations go far beyond the traditional understanding of sexuality as sexual intercourse, favoring the plural term ‘sexual rights’ (Corrêa et al. 2008; Roseman and Miller 2011; Richardson 2017).

The introduction of sexual rights brought about a new conceptualization of disability and sexuality as a human right and not simply a socially constructed idea (Sanders 2007; Shildrick 2007, 2013; Mor and Pikkel 2019). Despite scholarly recognition, sexuality is yet to be included within local and international disability rights legislation. The CRPD does not openly address sexuality or sexual rights as independent rights. Yet, it protects and acknowledges several aspects of sexuality (Schaaf 2011; Foley 2019; Sabatello 2014; Ruiz 2017; Pikkel and Gershuni 2023). Article 23 deals with the right to family life and is commonly interpreted as the right to choose sexual partners, relationships, and reproductive rights. Article 25 encompasses the right to health, including sexual health (Schaaf 2011; Sabatello 2014; Pikkel and Gershuni 2023). Article 19, which protects the right to access and accessibility, can also be interpreted as the right to sexual access.

The socio-political theory of Disability sexual citizenship also provides valuable insight into how we should understand and define sexual rights (Shildrick 2007, 2013; Shah 2017). The theory provides a new understanding of the positive aspects of disabled sexuality; emphasizing the state’s role in providing a positive social and legal environment, encouraging claims for sexual assistance, recognizing non-heteronormative sexual identities, acknowledging sexual pleasure access as a critical component in sexual rights (Tepper 2000; Shildrick 2007, 2013; Shah 2017).

4. Disability, Sexuality, and the Law—A Brief Review

The law regulates the sexuality of disabled people disabled in many ways (Perlin and Lynch 2016; Mor and Pikkel 2019). It marks the borders of accepted sexual behavior and determines who is allowed to be sexual, when, where, and with whom (Shildrick 2013). While legislation is often extensive, little litigation or scholarly work deals with the matter (Perlin and Lynch 2016; Mor and Pikkel 2019).

The relationship between disability, sexuality, and the law has changed and evolved over recent decades (Perlin and Lynch 2016). Early chapters in this history involved eugenic policy and ideology, that explicitly restricted and prevented disabled persons’ procreation (Lombardo 2008; Perlin and Lynch 2016). Despite significant progress and general rejection of classic eugenic ideas, reproductive aspects are still substantially present in the legal discourse. Parenting and access to reproductive technologies are still debated (Dorfman 2015; Rothler 2017), and parental capacity is often considered flawed or diminished until proven otherwise (Perlin and Lynch 2016).

Criminal law is another site where disabled sexuality is scrutinized. People with disabilities are often overrepresented as victims and as criminals (Perlin et al. 2017; Thorneycroft and Asquith 2019; Arstein-Kerslake 2023) and are more likely to be victimized and suffer physical or sexual abuse (Wacker et al. 2008). Many court cases concerning sexual violence that involve disabled persons examine their capacity to consent to sexual acts and potential exploitation (Benedet and Grant 2007; Lindsey 2021).

The civil law field of Torts also offers two relevant types of cases that address the sexuality of disabled individuals. The first is “sex torts,” addressing the liability of caregivers, doctors, and professionals in cases of sexuality gone wrong (Perlin and Lynch 2016; Mor and Pikkel 2019), such as rape or sexual assault within institutions, unwanted pregnancy, and sexually transmitted diseases (Perlin and Lynch 2016; Mor and Pikkel 2019). The second type of case is “sex damages,” compensating disabled plaintiffs for harm to sexual function following an injurious event (Mor and Pikkel 2019).

Finally, the transition in the legal status of sex work often implicates scrutinizing disabled persons’ sexuality. Legislative initiatives involve arguments regarding disabled clients, marking them as a reason to support the legalization or anti-discrimination of sex work (Fritsch et al. 2016), claiming that the absence of legal sexual services harms disabled people’s access to sex and even violates their sexual rights (Appel 2010; Thomsen 2014). The intersection between disabled sexuality and sex work is also present in judicial rulings and is at the heart of this study.

5. Sex Work and Disability—A Multilayered Relationship

The relationship between disability and sex work is multilayered and complex in research and practice. In real life, disabled people play different roles within the sex industry as clients, consumers, or workers (Sanders 2007; Liddiard 2014; Geiss and Egner 2021). Disabled people, especially women, are overrepresented among sex workers (Kuosmanen and Starke 2011). While some view it as a livelihood that offers autonomy and self-worth, others emphasize that sex work involves inherent risks of abuse and exploitation (Felkins 2022). As we advance with our case studies, we must consider terminological choices. For this paper, we chose the term “sex work,” a relatively neutral term suggested by sex workers (Leigh 2013).

In recent years, scholarly interest in disability and sex work has risen. Liddiard (2014), Fritsch et al. (2016), and others discussed the importance of access to sex work for the fulfillment of disabled men’s sexual needs. This line of research coincides with the arguments raised in favor of legalizing sex work. Paying for sex is portrayed as an opportunity for intimacy for individuals who may otherwise not be able to experience it (Sanders 2007; Wotton and Isbister 2010). Other scholars claim that purchasing sex is a realization of disabled people’s rights and falls within the definition of the right to sexuality (Appel 2010; Earp and Moen 2016). When some writers discuss the many opportunities in paid sex, others shed light on critical issues. Jeffreys (2008) presents a feminist critique framing sex work as a “male sex right,” underlining the statistics about male clients and female workers. Those who object to legalization emphasize the role disabled clients play in the sexual, physical, mental, and economic exploitation of sex workers and their possible contribution to the continuing worldwide sex trafficking. As two marginalized minority communities, sex workers and disabled people can either struggle separately for rights and recognition or, as Fritsch et al. (2016), create affinities and alliances to promote mutual causes.

Mintz (2022) was the first to raise the question of the possible implications of the connection between disabled sexuality and sex work, as it reinforces ableist perceptions of what is an attractive, sexual person and cements the idea that only non-disabled individuals are suitable sexual partners. Mintz presents us with an ethical argument; the ableist subtext he points out has not received attention from empiricists or legal scholars.

6. Methodology

The objective of this paper is to uncover the underlying perceptions linking disability, sexuality, and sex work. Using a qualitative case study methodology, the paper will illustrate how these perceptions and conceptualizations manifest in judicial texts. The paper presents two legal cases from distinct countries, decades, legal settings, and social contexts that share a parallel story. Content and discourse analysis will allow us to unravel the legal text’s assumptions. Each case study is analyzed separately, followed by a comparative investigation to uncover common themes and overarching patterns.

6.1. Courts and Social Construction/Perceptions

This study focuses on legal cases as case studies. The research on judicial rulings offers invaluable insights into the dynamics between law and social perceptions. Judicial rulings have a two-dimensional role in shaping and portraying social perceptions, thus making them an essential source for socio-legal research into constructing ideas and concepts. (Mor et al. 2024). Judges in higher and lower courts capture social views and beliefs in their reasoning and discourse, providing important insight into social mindsets and understandings (Danziger et al. 2011). Legal actors, in this case, judges, are vital in shaping societal perceptions, norms, and realities. Court decisions actively contribute to constructing legal meanings; they reflect and impact changes in public opinions and social perspectives (Rollins 2002; Vanhala 2011; Vogler 2016). They also teach us about the motivations of legal actors and the society in which they operate (Linos and Carlson 2017). Ultimately, while there is an ongoing debate about the ability of court rulings to evoke broader social change processes (Rosenberg [1991] 2008; McCann 2008), their role in shaping legal positions is undeniable (Mor et al. 2024). In the context of disability court rulings and, more specifically, judicial reasoning, can illustrate existing social perceptions of what it means to be disabled and how a given society understands equality and inclusion. At the same time, a shift, even a gradual one, in social perceptions can ultimately occur due to the influence of alternative or transformative judges.

The judicial text stands out as a fundamental and independent subject of research, particularly well-suited for content and discourse analysis (Shuy 2015; Hall and Wright 2008; Kirkham and O’Loughlin 2019). It offers a methodological opportunity to explore perceptions by thoroughly analyzing outcomes and rhetorical and linguistic choices. Content and discourse analysis are valuable tools for uncovering the social and legal meaning of disability in general (Grue 2011, 2019) and particularly of disabled sexuality (Mor and Pikkel 2019; Mor et al. 2024), allowing us to better comprehend social perception in context and articulate the underlying assumptions regarding disability, sexuality, and sex work.

Higher courts, hearing appeals, play a significant role in meaning-making, especially in Common Law systems, where they set precedents. However, trial courts also actively participate in shaping legal terms and concepts. While higher courts provide us with noteworthy doctrinal paradigms, trial courts serve as the primary arena where litigants and attorneys present their cases, and judges form an unmitigated assessment of all facts and evidence (Silbey 1981), with the capacity to translate legal theory into reality and potentially instigate doctrinal trends. Therefore, our research will include all rulings from each selected case study to harness the methodological advantages of trial and higher courts.

6.2. Using Case Study Methodology in Legal Research

The current paper focuses on individual case studies from two jurisdictions—Israel and Australia. The qualitative Case study analysis is a relatively new addition to the toolbox of empirical legal studies (Webley 2010; Argyrou 2017; Stępień 2019). Originating in social sciences, it allows us to examine phenomena within their specific contexts, explore actors’ interpretations, and underline perceptions of such phenomena (Webley 2010; Linos and Carlson 2017). Employing an interpretive approach in case study research will allow us to scrutinize a small sample of court cases in their given context and shed light on a larger-scale legal reasoning trend (Creswell and Poth 2016; Stępień 2019).

The case selection method chosen for this paper is that of the most different cases design (Linos and Carlson 2017, pp. 62–64). It assumes that the selected cases will differ in their characteristics and vary in all or most aspects except one explanatory factor (Linos and Carlson 2017). According to the most different cases design approach, we selected cases that diverge in jurisdiction, time period, legal system, and sex-work policy, yet share a core concept. This design allowed us to examine whether similar underlying patterns emerge despite contextual differences

We selected two court cases to serve as case studies; for each case study, we will examine trial and appeal court rulings and the socio-legal context in which they were given. The selected case studies differ in the following relevant variables: country of Jurisdiction, area of Law, Temporality (Year), the applicability of disability rights legislation (domestic and international), and contextual background. We hypothesize that despite their differences, Judicial discourse will follow similar underlying assumptions regarding disabled people’s sexuality. These assumptions will influence reasoning, rhetoric, and outcome, overshadowing the case disparities.

The paper will showcase each case study individually, providing insights into the social context, legal circumstances, case specifics, and the outcomes determined by the respective courts involved. The analysis will delve into judicial rhetoric, employing qualitative content analysis to elucidate the motives and perceptions influencing judicial decisions (Hall and Wright 2008; Murchison and Jochelson 2015; Mor and Pikkel 2019; Kirkham and O’Loughlin 2019). This approach goes beyond a conventional doctrinal analysis of case law by treating judicial texts as qualitative data that reflect social norms, perceptions, and implicit reasoning. Compared to doctrinal analysis, which focuses on legal norms and their implementation, content analysis focuses on linguistic choices and vocabulary, alongside contextual background to analyze how judges write about disability and sexuality, and provide insight into broader social and legal meanings (Hall and Wright 2008; Kirkham and O’Loughlin 2019).

7. Unpacking the Case Studies

Uncovering biases and underlying assumptions about disability, sexuality, and the connection between sexual rights and sexual services requires a thorough investigation of each selected case study. We will describe the factual background of each case, the rulings of all relevant judicial instances, the socio-legal context regarding the status of paid sexual services, sexual surrogacy, and the legal framework covering disability sexual rights. We will explore both the outcome and the terminology to uncover how judges addressed disability and sexuality and in what ways the rulings rely upon a disability sexual rights framework, if any.

7.1. Israel: Ploni V. Migdal Insurance Company (2004)

Between sex trafficking and disability rights—The socio-legal context

Section 10 of the Israeli Penal Law (Penal Code 1977) prohibits Procurement (Criminal acts involving the facilitation, encouragement, or exploitation of others for the purpose of prostitution), Inducement to an act of or to engage in prostitution, exploitation of minors for prostitution, and renting or maintaining a place for purposes of prostitution. Selling sexual services by individual sex workers was and remains legal.

During the 1990s, the number of sex workers in Israel increased, and what began with the exploitation of new immigrants from the former USSR continued to the widespread trafficking of young women from eastern Europe through the Egyptian desert. By the end of the decade, there were approximately 3000 trafficking victims in Israel (Amir and Amir 2004). In 2000, Israel took the first legislative step to fight the phenomenon by passing an act banning the trafficking of women for sexual purposes (Hacker 2015). Enforcement initiatives carried out by Israeli police and border patrol during the 2000s managed to reduce the number of trafficking victims (Cavaglion 2010). The efforts to eradicate trafficking continued and led to vigorous public disputes (Klin 2016; Shamir 2019), culminating with the enactment of a new law criminalizing any purchase of sexual services in 2018 (Lahav-Raz 2020).

The late 1990s and early 2000s also marked significant changes in protecting the rights of people with disabilities in Israel (Ziv 1998; Rimmerman et al. 2005). The Equal Rights of People with Disabilities Law (1998) (ERPDL) was passed following significant protests by disability activists in the late 1990s and early 2000s. The ERPDL is a comprehensive law designed to ensure the equal rights, dignity, and full inclusion of people with disabilities in all areas of life. The law articulates general principles applicable in different areas of life such as anti-discrimination, equality and accessibility, and contains specific provisions regarding employment and accessibility of public spaces and services. Puts particular emphasis on employment and accessibility alongside (Ziv 2004; Mor 2019). Israel signed the CRPD in 2006 and ratified it in 2012, obliging it to adhere to its principles and amend local legislation accordingly. (Kanter and Tolub 2017; Mor 2019). It is important to note that the ERPDL does not address sexuality, either explicitly or implicitly, and at the time of the Ploni vs. Migdal (2004; 2006) rulings, the CRPD was not yet in effect in Israeli law; therefore, there was no legislation protecting the sexual rights of people with disabilities.

The selected Israeli case of Ploni vs. Migdal (2004) was a personal injury Tort case filed according to the Road Accident Victims Compensation Law (1975); as such, it dealt with providing compensation to Ploni for the damages caused following the disabling injury. In Israel, Tort cases are not directly subjected to disability rights legislation such as the ERPDL or the CRPD. Therefore, the district and supreme court judges were not obligated to address principles such as equality or access (Mor and Pikkel 2019).

The final crucial contextual aspect of the case is the social and legal status of sexual surrogacy in Israel. Sexual surrogacy is one of the most innovative and advanced therapy treatments in the field of sexuality. The term is derived from the English word “surrogate,” meaning a substitute or replacement; therefore, sexual surrogacy is treatment through a surrogate partner (Masters and Masters 1980; Wotton and Isbister 2010; Shapiro 2017). A surrogate partner serves exclusively for therapeutic purposes, practicing and refining intimate and relational skills. It may include dating skills, transitioning from physical gestures to sexual relations, understanding the various types of physical contact, and so forth. Therapy with a surrogate is not a sexual service; it is designed to address physical, emotional, cognitive, or psychological challenges in engaging in sexuality (Wotton and Isbister 2010; Rosenbaum et al. 2014).

In Israel, sexual therapy with the assistance of surrogates started in 1989 at a Psychological Station of the Kibbutz Movement. After promising results, it was adopted and approved by the Ministry of Defense for injured soldiers in the 1990s (Aloni et al. 1994; Rosenbaum et al. 2014). In the following years, surrogacy was available as a private service and sometimes funded by national healthcare providers at their discretion. The Ploni V. Migdal (2004; 2006) rulings were issued when accessible surrogate services were available only for a relatively small group of individuals. In 2012, 6 years after the Supreme Court ruling, funding for all types of sexual therapy was included in the national healthcare program and is currently available to Israeli citizens.

7.2. District Court Ruling

Ploni is an Israeli man, born in 1975, who was injured in a car accident in 1998 at the age of 23. He filed a suit for damages against the car insurer under the Road Accident Victims Compensation Law (1975), to the District Court in Tel Aviv (1553/99). Medical experts appointed by the court determined the plaintiff has various disabilities, including 70% total psychiatric disability and an assessed medical disability of 83% (full function is considered as 0% disability, while complete loss of function is considered as 100% disability, meaning the plaintiff lost 70% of his mental health functions and a combined total loss of 83% in all areas). One of the central claims made by the plaintiff was regarding compensation for loss of sexual functioning.

The plaintiff claimed that due to his disabilities, mainly his psychiatric disability, he struggles with sexual encounters and can only function appropriately with sex workers; therefore, he requested compensation for the use of different types of sexual medications (Viagra, injections) and sessions with a sexual surrogate. The medical experts, including a sexual therapist and a urologist, acknowledged the plaintiff’s desire for sexual release and, more so, for a significant sexual relationship with a chosen partner. The experts determined that upon entering a relationship, the plaintiff may benefit from the services of a trained sexual surrogate, who will be able to guide him to strengthen his confidence and self-image and achieve sexual intimacy with a partner. The experts also concluded that his chances of finding a meaningful relationship are meager to non-existent. District Court Judge Pilpel rejected the plaintiff’s claim for surrogate services and granted him “escort services” instead:

“It appears that in light of the medical opinion that the plaintiff will not be able to establish meaningful and long-term relationships, due to his circumstances, with a romantic partner, and in any case, … leads me to the conclusion that the path of treatment and/or referral to escort services is the appropriate way to address the plaintiff’s problem arising from the accident.” [emphasis added] (p. 12)

This short paragraph captured several essential aspects of the ruling. The text portrayed a relatively narrow and gendered understanding of disabled sexuality. First, the title of the section dedicated to compensation for harm to sexual function was titled “Impotence.” This title focuses on the medical and physical aspects of sexuality, the ability to achieve an erection. The term impotence is gendered, referring to a man incapable of performing intercourse; it is a narrow definition that does not consider other possible sexual difficulties. It appears that even though the plaintiff had a 70% psychiatric disability and only 10% urological disability, the court disregarded the mental aspect of sexuality and offered solutions for reaction and ejaculation—Viagra or injections alongside weekly visits to a sex worker,2 based on statements by the expert urologist.

Second, the plaintiff did not complain about impotency; he explained that he could achieve an erection during encounters with sex workers and sought the assistance of a specialized surrogate therapist to assist him in regaining abilities and confidence in a future relationship. He has also contacted a surrogate for such treatment. Yet, the court dismissed his request.

Finally, the court determined that he was unable to establish a relationship. The court relied on the medical experts and dismissed the fact that Ploni had girlfriends since the accident with whom he tried and couldn’t have sexual relations. The court explains that this inability is rooted in the plaintiff’s “circumstances,” hence his disability. It is the court’s conviction that the disabled plaintiff will not enter a meaningful sexual relationship that leads the court to grant compensation, providing only a partial, incorrect answer to the plaintiff’s needs.

Notably, the district’s court ruling and the compensation for the use of sex workers’ services were not unique,’ and followed an established trend in Israeli tort cases of the time. It, therefore, provides a good representation of the judicial reasoning and rhetoric behind this type of compensation (Mor and Pikkel 2019).

7.3. Supreme Court Appeal

In an appeal to the Supreme Court (Ploni V. Migdal 2004), the insurance company challenged the compensation granted for escort service. The Supreme Court ruled on the appeal in 2006 after two years of hearings and deliberations. The Supreme Court determined that awarding damages for escort services is illegal and contradicts public policy by indirectly legitimizing prostitution and women trafficking. It offered two different pathways: compensation for medical costs and therapy or non-monetary damages for loss of sexual enjoyment (Mor and Pikkel 2019).

The rationalization, terminology, and eventual outcome of the Supreme Court’s ruling significantly differed from that of the district court. The Supreme Court discussed the issue in a chapter titled “Compensation for Escort Service” and focused on the moral and ethical considerations of sex work. Justice Rivlin addressed the tension between the efforts to fight sex trafficking and the legitimization of sex work in the original ruling:

“The Israeli law is one, and the courts that adjudicate cases involving the prostitution industry in Israel are the same sought for compensation in escort services cases. The law must, therefore, speak with one voice: considering Israeli law and the Israeli reality, the use of the services of a prostitute cannot be recognized as ‘compensation’ for damages.” (p. 24)

Yet the court did not leave the plaintiff empty-handed and acknowledged his right to seek sexual therapy. The Supreme Court described his sexual needs more broadly, focusing on nonphysical elements and addressing psychological needs. More so, the court emphasized that the use of escort services won’t provide an answer to other aspects of an intimate relationship:

“…it is doubtful whether the dependence on escort services can be categorized as a compensatory facility standing against the loss associated with harm to the ability to engage in sexual relations. Moreover, compensating a sex worker does not address the potential loss of the various aspects of an intimate relationship and the restriction of the injured plaintiff’s choices in this domain.” [emphasis added] (p. 24)

Unlike the district court, the Supreme Court did consider the plaintiff’s desire to have relations with a significant partner. Yet, at the end of the above quote and in other sections of the verdict, the court emphasized the narrow scope of the romantic and sexual opportunities that derive from the acquired disability. The court concluded, therefore, that escort services would not be able to compensate for the loss of sexual enjoyment and the plaintiff’s limited choices.

The Supreme Court, which also sits as the High Court of Justice in Israel, remained committed to human rights. With no references to any civil or human rights legislation, such as the ERPDL, the CRPD, or any other legislation or UN convention to guide him, the court cited selected decision from Israeli case law to provide a first-of-a-kind rights-based justification, sand stated that every individual has an inherent right to engage in intimate relationships:

“In another context, it has already been established that “denying an adult the possibility of engaging in intimate relationships for a not-insignificant period constitutes a severe infringement on one’s inherent rights. The sexual drive is natural and human, and suppressing it against the will of the individual contradicts human nature and needs” (HCJ 114/86 Weill v. State of Israel, PD 41(3) 477, 483–484). “It can be argued that the pursuit of personal relationships is intricately linked to the drive for life and survival—personal survival and the survival of the race and spices. Suppressing this fundamental drive infringes upon the dignity and the individual’s ability to lead a human life” (HCJ 4714/04 Amir v. Israel Prison Service, Tak-El 2004(3) 3446). [emphasis added] (p. 15)

The court depicts sexuality as an essential part of human existence that stems from the right to dignity and life. Later rulings did not cite these statements. The PLONI V. MIGDAL case was the only case to reach the Supreme Court, and the only time the Supreme Court expressed its opinion on the connection between sexual rights, disability, and sex work. Later cases on compensation for harm to sexual function were discussed by lower instances, awarding compensation for sexual rehabilitation or medical treatment, yet they did not contain any normative or doctrinal discussion. (Mor and Pikkel 2019).

The court severed the link between disabled persons’ sexuality and sex work as a form of compensation. It determined that sexual services are not a legitimate form of compensation in light of the struggle against sex trafficking and discussed possible implications such a form of compensation may have on disability rights. The court acknowledged the narrow scope of sexuality that can be addressed by sex with a professional sex worker yet missed some additional important aspects. The court described the plaintiff’s loss of sexual possibilities and opportunities and his inability to engage in sexual relations with a partner as a direct result of his disability. Thus, the court reinforced the assumption of un-desirability and overlooked relevant social barriers and stigma.

A more disability-oriented terminology would have focused on how compensation could assist in rehabilitating sexual function, funding sexual accommodations, and ways to broaden the plaintiff’s choices. However, disability informed terminology would still be constrained in the context of personal injury compensation. As the principle of restitutio in integrum guides Israeli tort law, it leaves judges little room for more creative compensation measures aimed at inclusion, such as sexual accommodations or rehabilitative pathways. Such measures require a rethinking of Tort adjudication.

7.4. Australia: WRMF V. NIDA (2019)

Liberalizing sex work, broadening the disability scheme–The socio-legal context.

The Australian case study in this research deals with a case of a disabled woman (referred to as WRMF) who sought coverage for sexual services under the National Disability Insurance Agency (NDIA) in 2017, followed by appeals to the Administrative Appeals Tribunal in 2019 and to the Federal Court of Australia in 2020. The question in discussion was whether the NDIA should provide and cover sex services for disabled individuals. Before delving into the judicial texts, we will explore the context in which these rulings were given. Similar to the Israeli case, we will present relevant disability rights legislation and the legal status of sex work in Australia.

The Disability Discrimination Act (1992) (Cth) (DDA) protects the rights of people with disabilities; the Act wasn’t the first Australian legislation to address the issue, as several specific laws existed in some territories. The Act included provisions regarding anti-discrimination in various fields and areas of life. In 2006, Australia also signed the CRPD and has since been obliged to follow the Convention and its protected rights.

In 2013, the parliament passed The National Disability Insurance Scheme (NDIS), a program dedicated to providing support services that can be considered “reasonable and necessary support” (such as personal assistance, therapeutic support, help with household tasks, and many others) for disabled members of the community. In 2023, the NIDS funded care for over half a million people, providing them with services according to their individual “participant’s plan” (National Disability Insurance Scheme Act 2013). In the Australian case study, the courts determine what (sexual) services should be covered under the NDIS in light of disability rights legislation and the CRPD. The Israeli courts operated within the limits of Tort Law and discussed the scope of compensation provided by a private insurance company with no obligation to implement disability rights law. The Australian legal landscape at the time the WRFM rulings were written was different; as an administrative case against the NDIA it was governed by disability rights law, the courts operated according to the guiding principles of the CRPD, and applied through-service scheme that offers individually tailored solutions under the NDIS.

While Israeli law and public opinion tilted towards the prohibition and criminalization of different aspects of sex work, Australia headed in the opposite direction. Australian territories and states enact their own legislation on sex work, leading to diverse regulatory schemes. For example, in New South Wales, sex work is fully decriminalized (Summary Offences Act 1988, Sex Services Premises Act 2012), while in Victoria, sex work is legal and requires state licensing (Sex Work Act 1994)’ (Aroney and Crofts 2019; Sullivan 2010; Weitzer 2022). Despite these variations, Australia’s overall stance on sex work is more liberal, with moves towards legalization and not outright criminalization, nationwide.

We can also learn about the liberal approach to sex work in Australia by examining its prominent sex worker advocacy groups and initiatives since the late 1980s (Aroney and Crofts 2019; Gall 2010; Sullivan 2010). Organizations such as Scarlett Alliance—the Australian sex workers association, and many other state-level organizations play a pivotal role in bringing forward the voices and interests of sex workers and pushing towards legal reforms (Jeffreys et al. 2011).

Sexual surrogacy was first introduced in Australia by Dr. Hickman in the early 2000s; his work was severely frowned upon by the medical and psychological establishments. The controversy sparked a heated discussion on the legality of sexual surrogacy: is it a valid therapeutic method or a form of sex work subject to existing criminal and administrative regulations? (Freckelton 2013). Nowadays, surrogate partner therapy is available within private sexual therapy clinics (Freckelton 2013). Recent changes in sex work affected sexual surrogates as well, lifting previous restrictions on sexuality-related services. Currently, there are no specific regulations for individuals working as sex surrogates, and the term is used for sex workers with expertise or training in disability, sex therapy, or related fields (Wotton and Isbister 2010; Wotton 2020).

In the chosen case study of WRMF V. NDIA (2019) The NDIA contended that according to the NDIS, all types of sexual services are excluded from the scheme and cannot be funded. There were no official documentation of such a policy prior to WRFM’s case. The federal court rejected NDIA’s position and ruled that any service that is not explicitly excluded is therefore covered by the agency. In the case’s aftermath, a proposal was made to formally exclude sexual activity-related support from the list of provided services, yet the territories rejected the proposal. Consequently, in 2023, the Joint Standing Committee on the NDIS’s final report officially embraced the court’s ruling and included sexual support in the scheme.

A significant contributor to this shift was the statement of “Touching Base,” a charitable organization founded in 2000 to connect clients and sex workers who specialize in working with disabled individuals. Touching Base represents a unique phenomenon of an alliance between Australian sex workers and their disabled clients working together that has no parallels at its level of influence in other common law countries.

7.5. The Administrative Appeals Tribunal

The Administrative Appeals Tribunal issued its verdict in 2019 (WRMF V. NDIA 2019). WRMF, the applicant, is a single, lesbian, disabled woman with multiple sclerosis in her forties who receives care under the NDIS. She requested funding for “the services of a sexual therapist, specially trained in treating disabled persons.” (par. 1) and claimed that this type of service falls within the definition of reasonable and necessary support and is therefore covered by the NDIS. NDIA denied her initial request in 2017, leading to her appeal to the Administrative Appeals Tribunal.

The Appeals Tribunal began its verdict with a description of WRMF’s physical disability and how it affects her sex life. The court’s language was vague and conveyed a sense of hardship and misfortune. It emphasized the devastating impact her physical disability has on her ability to engage in intimate relations.

“…The applicant does not seek the services of a sex worker. Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference. She seeks those services not because she does not have a life partner (although she does not have or expect ever to have a partner). As will appear from the confidential section of these reasons, a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services the applicant requires in order to obtain sexual release. Nor, if she ever found a partner, would she be able to sexually stimulate the partner, because of matters referred to in the confidential reasons. Her condition also prevents her from masturbation.” (par. 3)

The opening paragraph offered crucial insights. First, it clarified that the debate was not about financing sex work but focused on the requirement for a specially trained professional. Second, it emphasized the unfortunate circumstances and severe impairments. Third, it conveyed the court’s view, shaped by the WRFM’s testimony, that her condition precludes her from having a partner or being in a relationship. Thus, the starting point of the case was that the solution for the WRFM’s sexual needs can only be met by a service provider. This is further explained in par. 48:

“The applicant at one stage attempted to locate a partner and has ceased to do so, and believes she will never have one. If she did have a partner, she could not stimulate that person, and it seems very unlikely that a partner would undertake the activities which the trained therapist would perform to enable the applicant to achieve such form of release as she is capable of achieving”.

From that point onwards, the court declared that the ruling does not address the moral question of the appropriateness of funding sex work under the NDIS, and will address the question whether the specifically requested services are “reasonable and necessary supports”. With no clear definition, the court interpreted the term based on case law and the CRPD and located the issue in the context of disability sexual rights (par. 16–19). After a short examination of whether sexual rights are indeed covered by the CRPD and constitute a human right, the Tribunal determined that sexual rights are in fact not considered human rights, and therefore, that the CRPD does not contain any specific provision relevant for the case at hand.

Despite the broader conversation on a sex rights framework, the court limited its discussion to the appellant’s sexual needs and release without delving further. It is noteworthy that the Federal Court of Appeals pointed out that the WRFM herself articulated her claim in terms of rights, as evidenced by her statement to the Tribunal (par. 77):

“Without the assistance of a professional sex worker I am not able to achieve sexual release and I am effectively denied the right to sexual health, pleasure and wellbeing.”

WRFM was a Woman who sought the services of a female worker/therapist; thus, while her gender differs from the Israeli case, the gender of the service provider remained the same, underpinning the gendered nature of many legal and social disputes about sex work.

The text provided a careful examination of the provisions in the NDIS, and concluded that funding specialized sex therapists is within its scope; therefore, NDIA must reexamine the request, stating that:

“The applicant chooses to have the services of a sexual therapist. Most people do not need such services to achieve sexual release, so in a sense, she is put on par with others as far as she can be. As I have found, the support will help her realise her potential for social and emotional development and to participate in social life.” (par. 36)

7.6. The Federal Court of Australia

The Tribunal’s ruling gained public and media attention, and disability advocates used the momentum to call for funding for all types of sex work under the NDIS. The NDIA appealed the decision to the Federal Court of Appeals in case FCAFC 79 (NDIA V. WRMF 2020); The Federal Court issued its ruling the following year in 2020.

The NDIA appeal aimed to reframe the case, challenging the administrative Tribunal’s decision. NDIA asserted that the matter revolves around funding sex work in general. A significant portion of the Federal Courts’ ruling was dedicated to determining what “disability-specific training” is and what qualification is required from a specialized therapist. A key issue is the distinction between a “sex worker” and a “sex therapist,” assuming that the latter is more legitimate than the former. NDIA argued that employing sex workers would not constitute a “disability-specific need” and thus fell outside the scope of NDIS coverage. According to NDIA, sex workers’ services were not “a disability-specific need” and should not be covered under the NDIS.

The court determined that the meaning of terms should be examined in context and according to their substance, dismissing NDIA’s claims:

“… it is abundantly clear from the matters referred to at [77]–[91] above that the respondent was not seeking services that might be sought by a non-disabled person for transactional sexual activity or release (however described). The respondent was seeking a particular kind of service from someone who is prepared to work with her knowing her complex medical conditions; prepared to work with her in circumstances that would be challenging to many people (as described by the respondent in her evidence); willing to learn to assist her having regard to her particular needs; and who has appropriate expertise (however gained) working with disabled persons. The fact that it might be provided by a person who might also be described as a sex worker is not to the point. It is the specialised service to be provided that distinguishes the nature of the respondent’s claim.” (par. 96)

A closer analysis of NDIA’s statements revealed that the specific terminology is inconsequential, as they have clarified that they will not fund any services related to sex, including those provided by licensed therapists (see par. 29).

Notably, the terms “sexual surrogate” or “surrogate partner therapy” were missing from the discourse. While the services sought by WRFM bear a resemblance to those of surrogacy or assistance, the dispute about the nature of the services focused solely on “sexual therapy” versus “sex work”. The terminological ambiguity may have stemmed from Australia’s ongoing legislative decriminalization and legalization processes, which led to the broad use of the term “sex work” to describe many different services in the field.

The court examined the applicant’s condition and its implications on her sexual activity and accepted her statement and acknowledging that the physical disability severely hampered her ability to lead a full sexual life. However, a discussion regarding sexual accessibility and what a fulfilling sexual life entails was notably absent. Paragraphs 118–122 offer insights into the court’s and the agency’s perspectives on disabled sexuality. The court contended that the WRFM’s disability rendered her unable to engage in sexual relations or satisfy a potential partner. This stance was contradicted by the agency’s assertion that a potential partner could indeed provide the necessary support and provide her with sexual relief. Upon reading the ruling, a query arises: is this perception unique and stems from her specific level of disability, particularly her perceived inability to stimulate a partner sexually? Or, perhaps, it reflects a more profound misconception about the desirability of disabled people, reflecting a potentially narrow viewpoint regarding sexuality and disability. The court could have provided a broader context, discussing general aspects of disability, sexuality, and relationships while elucidating the specific nuances of the applicant’s condition and desires. Nonetheless, the court’s depiction served an instrumental purpose and facilitated the provision of the requested services, eventually benefiting WRFM.

The applicant’s gender and sexual orientation as a lesbian woman prompt reflection. The widely held belief, supported by data indicating that women generally solicit fewer sex services, raises concern about whether this aspect played a role in the court’s conclusion that the requested service is not “sex work.” Female clients do not fit the dominant paradigm of male clients and female workers, which often shapes debates about the legality of sex work (Sanders 2007; Fritsch et al. 2016). In distancing the case from that paradigm, the Court had the opportunity to frame the service as therapeutic, facilitating a favorable outcome for the applicant (while at the same time reinforcing the invisibility of disabled women’s sexuality).

The final significant aspect is the framing of sexuality and sexual acts. In paragraphs 141–142, the court underscored the intrinsic connection between sexuality and social interaction and posited that if the NDIS did not explicitly exclude sexual activity, it would be inherently included. These insightful remarks made by the court firmly place sexuality as an inseparable part of human existence and an integral part of one’s life:

“We see no reason why sexual activity and sexual relationships would not be regarded as included within the activities listed in s 24(1)(c) (in particular sub-para (ii)); nor why the way an impairment may affect a person’s ability to engage in sexual activity and sexual relationships would not be within the concept of ‘social … participation’ in s 24(1)(d).”

… The Act does not expressly exclude such activities from being funded supports. Nor has any exclusion been made under the NDIS Rules. In our opinion, there is no implied exclusion of such activities either, and indeed in our opinion the better view is that they are intended to be included. Otherwise, the values, objectives, purposes and guiding principles with which this legislative scheme is replete… are to be understood as not meaning what they appear to convey, and as being subject to a limit, by way of a hard and impassable line, at the point of physical intimacy with another human being.”

Finally, the Federal court perceived sexuality as connected to overall well-being, participation, and sexual satisfaction, yet it did not place it within a broader framework of sexual rights. The Court addressed the Tribunal’s discussion regarding whether sexuality is recognized as a right under the CRPD without making any assertion. The Court applied a purposive interpretive approach, interpreting “reasonable and necessary supports” in consideration of the NDIS Act’s objects and the guiding principles of the CRPD. Nonetheless, the engagement with international law remained limited. While CRPD principles were acknowledged indirectly, the judgment stopped short of recognizing sexual rights as explicit human rights. Ultimately, the appeal was denied.

8. Comparative Discussion

The two case studies presented in this paper tell a similar story in different socio-legal settings, almost two decades and continents apart. The differences and similarities between the cases offer a unique opportunity for a comparative exploration of several significant topics: (1) Interaction between society, policy, and legal outcomes; (2) The influence of disability rights legislation and international mechanisms on judicial rulings; (3) Sexuality—between human needs and sexual rights; (4) The role of terminology and linguistic choices in judicial texts; and (5) Perceptions of disabled sexuality over time and space. The overarching conclusions of this comparative analysis will underpin common judicial perceptions regarding disability, sexuality, and sex work.

The Interaction between society, policy, and legal outcomes

As with any judicial decision, both rulings are deeply rooted in the nation’s social and legal contexts. The legal status and social acceptance of sex work heavily impacted the discussion and the outcomes of the cases. Israel’s fight against women trafficking and its overall tendency to criminalize many aspects of sex work were evident in the Supreme Court’s decision. Justice Rivlin overruled the district court’s decision to award compensation for escort services under the premise that it contradicted social and legal policy regarding sex work. The court, therefore, offered the plaintiff a different remedial avenue, similar to what he initially sought from the district court, in the form of sexual therapy and even (without making a clear statement) sexual surrogacy.

Fifteen years later, in Australia, the Federal Court operated in a society that held opposite views about sex work and its legitimacy. The difference between social and legal perceptions of the sex industry, as fertile ground for social harm and exploitation in Israel and a recognized trade and industry in Australia, is evident in the Federal Court’s reasoning. The bottom line of both decisions is similar, as they approved coverage (by the insurer or the state) of some type of sexual therapy. The road and reasoning of the rulings differ tremendously. The Israeli court distinguished sexual therapy from sex work, whereas the Australian court classified the service as part of the sex industry, emphasizing the provider’s expertise. In Australia, it is considered not as an independent service but as a specialized branch of sex work for individuals with disabilities.

The second aspect of social policy that shaped both reasoning and outcomes is the social acceptance and healthcare policy of surrogate partner therapy. In Israel, both courts categorized sexual surrogacy as a legitimate form of therapy. The Australian courts never mentioned sexual surrogacy as a possible treatment, even though their description of a “specialized sexual therapist” bears significant similarities to that of a “surrogate partner therapist”. This inconsistency between the two rulings reflects differences between Israel’s progressive stance on sexual therapy and the ongoing controversy around the practice in Australia.

Both cases raised the question of the type of services provided under public funding. The NDIS offers services based on core principles: reasonable and necessary support, individual choice, and control, and the case focused on whether the services in question meet these criteria. In Israel, the case fell under the “Road Accident Victims Compensation Law—1975,” which involves a private insurance claim but touches upon public funding principles. The act established statutory compensation for pain and suffering and for monetary damages (such as loss of income, assistance, medical treatment, and others). It also created a fallback mechanism for situations when the driver is uninsured, where the state’s insurance agency compensates passengers and pedestrians. The Supreme Court’s ruling emphasized this aspect of public policy in the context of funding sex work amidst ongoing efforts to combat such practices by law enforcement.

Both legal cases had profound social implications and attracted attention from the media and activists. Due to their potential ripple effect, courts paid close attention to statements from interested third parties. In Israel, the Foreign Workers Assistance Center and the Hebrew University’s Clinic for Fighting Women Trafficking joined as Amicus Curie, raising concerns that, as determined by the Supreme Court, compensation for escort services contradicts public policy. Israeli activists pushed for the enactment of “Jhon’s Act” of 2018, criminalizing the purchase of sex services. In Australia, the disability-sex workers’ alliance “Touching Base” submitted several statements to the Administrative Tribunal, clarifying relevant issues about Disability Awareness Training workshops for sex workers and their potential benefits for disabled people. The organization’s continued work also played a role in future public policy developments, as they were involved in legalization efforts and contributed to the shift in NDIA’s course of action.

Undoubtedly, the involvement of social and legal organizations significantly impacted both legal decisions. Still, important questions remain unanswered: Could the involvement of other organizations representing different interests alter outcomes? Would the presence of disability rights organizations have influenced the Israeli courts? Would statements from organizations opposing the sex industry have manipulated the Australian court’s ruling?

8.1. The Influence of Disability Rights Legislation and International Mechanisms on Judicial Rulings

What does it mean to be a person with a disability in a particular society? What is the meaning of a full life? How does disability rights legislation affect case law? The case studies chosen for this research answered these fundamental questions from two perspectives, providing imperative insights.

The Israeli and Australian rulings must be understood in light of their respective disability rights frameworks. While the ERPDL (1998) was already in force at the time of the Ploni v. Migdal rulings, it was not invoked by the courts. Instead, the District and Supreme Courts confined themselves to Tort law, specifically the personal injury law of compensation for road accidents, a field not directly governed by disability rights legislation (Mor and Pikkel 2019; Mor et al. 2024). The court was not obligated to address or implement disability rights in its ruling. Indeed, the courts did not refer to the ERPDL or the CRPD, which had not yet been ratified at the time, reflecting both the legal culture of adjudicating compensation claims through narrow statutory interpretation and hesitation to ground analysis in disability rights legislation in cases outside the core contexts of discrimination or accessibility (Kanter and Tolub 2017). Nonetheless, the Supreme Court dedicated much of its ruling to the above-listed questions. The court acknowledged that a disabled person could enjoy life, share meaningful connections with others, engage in intimate relationships, and experience pleasure. Despite the court’s awareness, the rhetorical choices and the way the plaintiff was portrayed in the text were quite conservative, and the courts often used the term “loss” to describe his current situation.

The Australian case revealed how disability rights legislation and the CRPD influence judicial reasoning. The WRFM case was a recent development that highlighted a shifting legal landscape and a period when courts were required to engage with disability rights and to operate within a comprehensive disability rights framework, grounded in the DDA (1992) and the NDIS (2013). The court’s purposive interpretation of the NDIS provisions was explicitly informed by the CRPD, which Australia had ratified. The NDIS is a social scheme designed to provide the support necessary for the realization of disability rights. It showcases a service-oriented approach in a disability rights era. All litigation regarding eligibility and individual programs provided by the NDIS is, therefore, directly governed by disability rights. Consequently, both the tribunal and the Federal court were deeply committed to disability rights; they described WRFM’s life and needs in detail, addressed her circumstances, used a relatively optimistic tone, avoided loss and suffering terminology, and examined whether sexuality was a human right addressed and protected in the CRPD principles. Rather than limiting itself to statutory wording in isolation, the courts drew on international human rights of equality and participation to frame sexual support as a form of “reasonable and necessary support.”

Comparing the two cases highlights a divergence in interpretive methods. The Israeli Supreme Court employed a narrow approach, emphasizing tort-based compensation without extending analysis to a broader disability rights agenda; while the Australian Federal Court adopted a purposive and systematic approach, situating its reasoning within national disability legislation and international standards. This difference underscores how judicial engagement with disability rights frameworks shapes the recognition of disabled persons’ sexual needs (Mor and Pikkel 2019; Kanter and Tolub 2017).

The disability rights era facilitated a gradual change in the way judges approach people with disabilities. When local laws and international conventions provide a working framework, judicial reasoning and outcomes no longer depend on judges’ personal beliefs and awareness. In both case studies, courts deliberated whether and how disabled people should access the sexual realm, yet the boundaries of these deliberations differed tremendously. The main obstacle for the Israeli plaintiff was the recognition of his sexual needs as a disabled person; in the Australian case, the discussion was based on the outset that WRFM, as a disabled woman, had sexual needs and wishes, and questioned whether sexuality was a human right, yet ultimately decided based on local legislation. The gap between the two perspectives conveys the progression in social understanding of the intricacies of life with disabilities and the meaning of disability rights.

One may suggest that the outcome of the Israeli case might have differed post-CRPD ratification, as was observed in the Australian case study. However, recent years have shown that while Israeli tort cases have begun incorporating disability-oriented principles and language, like equality and inclusion, this process has been slow and limited (Mor et al. 2024).

Whose Role Is It Then?

The comparative analysis raises important questions about the role of legal actors in implementing disability rights agenda into case law. Courts, as a state institution, are constrained by and operate within the statutory guidelines and interpretive approaches. As the Israeli case demonstrates, a court operating within tort law was constricted in extending its analysis into the broader disability rights framework, limiting its ability to transform legal recognition of disability related sexual rights. The legislators are then required to take an active role, using their institutional capacity to revise or expand the law by directly applying the governing principles of the ERPDL and the CRPD to tort cases. At the same time, the Australian case demonstrates that courts can play a crucial role in policy development when the law itself permits a broader interpretation. While the Federal Court’s purposive interpretation of the NDIS provisions, considering the CRPD, did not recognize sexuality as a human right, the discussion itself situated disability and sexuality within a rights-based discourse.

Both legal actors have complementary functions in shaping the way the lives and sexualities of individuals with disability are perceived and addressed in the legal realm. Courts can interpret existing statutes using a broad disability rights framework, even when these laws do not formally recognize sexual rights (Mor and Pikkel 2019). However, it is the legislature that is entrusted with filling doctrinal and policy gaps by expressly incorporating sexuality into disability rights legislation and support frameworks.

8.2. Sexuality—Between Human Needs and Sexual Rights

One of the overarching themes of this project consists of two main questions: How did courts perceive sexuality, and how did they address sexual rights?

The definition of human sexuality changed and expanded over the years to include physical, emotional, social, and political aspects (Shildrick 2013). This trend is evident in the differences between the selected case studies. The Israeli case mainly focused on the plaintiff’s erectile function or dysfunction and his ability to participate in acts involving vaginal penetration; other aspects of sexuality were mostly overlooked. This focus can be attributed to his young age, gender, and the growing popularity of Viagra. The district court dismissed the plaintiff’s assertions regarding interest in sexual surrogacy and desire to engage in intimate relationships with future partners and determined that it is sufficient to address his need for sexual release, thus detaching intercourse from intimacy and emotion. The Supreme Court did little to broaden the discussion; even though it provided a rights-oriented conceptualization of sexuality, the definition of sexuality remained relatively narrow and encompassed what was referred to as “engaging in intimate relationships.” a term originating from a case on conjugal visits, should be interpreted accordingly.

The impact of time and a liberal approach to sexuality was evident in the way the Australian courts defined sexuality. They explored broader facets, identified WRFM as a lesbian interested in female therapists, considered her unique needs and physical capabilities, touched on topics like masturbation, capacity for sexually satisfying a partner, and use of sex toys. WRFM’s ability to participate in intimate relationships was described as part of her ability to participate in social life. Despite this rather holistic view of sexuality, the courts focused on the possibility of sexual release (for WRFM or her partner) and avoided discussion of emotional, social, or political aspects.

The second question to be examined is how courts perceive sexual rights. In recent decades, there have been changes in the socio-legal understanding of sexual rights, particularly in the context of people with disabilities. The contested status of sexual rights as human rights was evident in the selected case studies. They offered insights into the surrounding controversy and the paths courts can take when discussing disabled sexuality.

In both cases, domestic and international disability rights laws did not include sexuality as a protected right. Yet, both jurisdictions discussed the question of disability sexual rights. In its pioneering decision, the Israeli Supreme Court was able to place sexuality within the context of human rights by tying it to human life and dignity, providing non-legislative legal recognition. The Australian Appeals Tribunal carefully examined if sexual rights fell under the protection of the CRPD and concluded that although they are not considered human rights, they may qualify as fundamental freedoms. Subsequently, it turned to local legislation, focusing on the key principles of “needs” and “freedom of choice.” Leveraging this framework, the tribunal proceeded to grant the applicant’s request. The Federal Court accepted the Tribunal’s interpretation of the CRPD and made positive statements that acknowledged sexual needs and embraced the notion of equality and social participation.

It is evident that in both case studies, courts found ways to acknowledge disabled people as sexual beings with needs and desires and to find suitable anchors within the existing legal setting to do so. In both cases, courts depicted sexual needs as inherent to human existence as part of their reasoning, using the terms “fundamental drive” (Israel) and “important human needs” (Australia). Though courts and society realize the significance of sexuality, the recognition of sexual rights as human rights is still pending and depends on advancements in international law and national legislation.

It is important to note that while the CRPD does not protect sexuality as a right (Schaaf 2011; Pikkel and Gershuni 2023), the convention significantly contributed to shaping discussions and raising awareness of this crucial topic. The continued dialogue about the place of sexual rights within human rights frameworks laid the foundations for potential changes.

Thoughts About Gender

When discussing sexuality and sexual rights, one must also consider the role of gender and gender roles. In both cases, the person potentially supplying services, either sex work, therapy, surrogacy, or any other, was a female. Even though WRFM is a woman, she is a lesbian who seeks a female worker, thus following familiar gender trends. Indeed, globally, most sex workers are females catering to male clients (Jeffreys 2008), contributing to a gendered discussion on the legitimacy and legality of the sex trade. This dynamic translated into a gendered narrative in legal rulings, potentially leading to gender-specific solutions for sexual needs.

Deliberating whether paid sexual services are an acceptable, primary, or only way of realizing one’s sexuality often excludes heterosexual women, non-heterosexual men, and non-binary individuals (Mor and Pikkel 2019). Sex rights must be interpreted in a way relevant to all genders and sexualities; thus, while sex work might be discussed as an acceptable solution in some cases (depending on local laws and policies), it cannot be a preferred or an exclusive solution if it is not inclusive. While some aspects of sex rights are gendered, particularly those related to sexual health and reproductive rights (Jeffreys 2008; Liddiard 2014), to truly uphold sex rights, an inclusive interpretation is crucial, acknowledging diverse genders and sexualities.

The second gender-related dimension, originating from the gender dynamics between clients and workers, involves a potential clash between disability sexual rights and sex workers’ rights. The Israeli rulings underscored the enduring controversy surrounding the extent of exploitation and abuse faced by women in the sex industry.

8.3. Perceptions of Disabled Sexuality over Time and Space

One of the most persistent perceptions regarding disabled people’s sexuality is the “assumption of un-desirability”, meaning that people with disabilities are undesirable sexual partners for people with or without disabilities. This misconception still shapes the judicial understanding of disabled sexuality, explaining why some judges considered sex work as a solution for disabled individuals’ sexual needs and overlooked possibilities for consensual relationships, even when eventually they ruled in favor of the disabled plaintiff. The selected case studies demonstrated two parallel outlooks: they showed an evolution of judicial views regarding sexuality and disability and simultaneously relied on ableist stereotypes, posing additional hurdles for intimate relationships.

The evolution of social perceptions concerning disabled sexuality disabilities is a complex process, marked by the gradual acknowledgment of their inherent sexuality, diverse sexual needs and desires, and an initial acknowledgment of sexual rights as an integral component within the disability rights framework. This transformative shift can be observed in both selected case studies, with a 15-year-long time gap and contextual differences emphasizing this process. The Israeli Courts achieved a groundbreaking milestone by recognizing that sexual intimacy is an inseparable aspect of human existence, regardless of the presence or absence of a disability. The Supreme Court emphasized that sexual relations were an integral part of “dignity and the individual’s ability to lead a human life,” and denying such intimacy “constitutes a severe infringement on one’s inherent rights” (par. 14). In the much later Australian ruling the courts reinforced the significance of sexuality determining it a “reasonable and necessary support.”

Another pivotal difference between the case concerns the role assigned to the disabled individual within the legal process. The Israeli district court decision echoed a time when the voices of disabled individuals were historically marginalized. The court was not sufficiently attentive to the plaintiff’s statements and wishes; it overlooked his desire for surrogate treatment that would allow him to pursue sexual relationships with partners, as well as his testimony that he had been involved in relationships with partners since his accident. The Australian judges put particular emphasis on the individual perspective of sexual needs, often quoted the plaintiff’s testimony and requests and reflected a more tailored and person-centric approach. The Federal Court used WRFM’s testimony quoting her words, descriptions, and needs (par. 78–79). The Case is a striking example of a judiciary embracing the notion of “nothing about us without us.” It represents a notable shift towards authentic listening and inclusion in contemporary approaches.

Accessibility is a critical concept in disability theory and disability rights legislation. Neither the district nor the supreme court rulings in Israel used “access” or “accessibility” when discussing the plaintiff’s prospects of finding an intimate partner. The deliberation on the plaintiff’s future possibilities ranged from an outright rejection by the district court to a consideration of rehabilitative pathways by the Supreme Court. In contrast, the case of WRFM demonstrated a change in the socio-legal understanding and awareness to access, as her request for funding was in some instances framed as “the primary reason for needing this support was due to her not being able to access the community to meet sexual partners.” (par. 27, 117) and sexual intimacy was described as a form of social participation.

Despite these remarkable advancements, some enduring perceptions and misconceptions about sexuality and disability were still present. Although courts expanded the definition of sexuality and considered a more comprehensive range of sexual needs, a significant emphasis was put on the physical dimensions of sexual function. In the Israeli context, the discussion centered on the capacity to achieve an erection. Meanwhile, in Australia, courts drew attention to sexual release and physical limitations in satisfying a partner. The focus on physical aspects of sexuality lacked an understanding of the complexity of intimate connections for individuals with disabilities and alternative ways to engage in meaningful, enriching sexual relationships.

The role of society in the disabling processes, its involvement in restricting choices, limiting possibilities, and creating inaccessible spaces, also requires further attention. Creating inclusive spaces to meet potential partners emerges as a critical issue, as it prevents individuals from forming intimate connections. It appears that even in the disability rights era, disability remains an individual matter, and physical impairments are considered the key or the barrier to inclusion and participation. The Australian tribunal and Federal Court repeatedly mentioned that WRFM cannot find a partner because of her specific situation, overlooking her claim about difficulties accessing the community to meet partners, thus putting all the emphasis on her physical condition, and overlooking social barriers and accessibility factors. Even judges who were conscious and committed to the disability cause fell short of acknowledging society’s duty to dismantle barriers and provide opportunities that enable people with disabilities to make decisions in line with their wishes and requirements.

Ultimately, reviewing the cases revealed an implicit belief that disabled individuals are unsuitable sexual partners. In both case studies, the courts operated under the assumption that they were unfit to participate in authentic relationships. In the case of Ploni v. Migdal (2004), the district court fully embraced the medical experts’ opinion that “The plaintiff will not be able to establish meaningful and long-term relationships with a partner due to his circumstances.” (par. 7), while the appeals tribunal determined that “a partner from the community would be unlikely… Nor, if she ever found a partner, would she be able to sexually stimulate the partner” (par. 7)

The judicial discourse did not thoroughly challenge stereotypes or articulate an alternative narrative. The pervasive notion that some people are too disabled for authentic relationships reinforces harmful stereotypes, suggesting that disabled individuals are inherently impaired and asexual. The perception of people with disabilities as unsuitable partners is reflected both in their description and in the courts’ willingness to consider sex work as a viable solution for sexual desires. This assumption of un-desirability prompts the discussion over funding or approving sexual services, given that consensual relationships are deemed unattainable.

This comprehensive analysis highlights the need for a more inclusive and expansive discourse that considers individual needs and actively addresses and challenges societal attitudes. Acknowledging these enduring perceptions and misconceptions is pivotal to mitigating their tangible influence on legal perspectives.

9. Conclusions

We started our journey by delving into the complex relationship between disability, sex work, and legal frameworks. Social perceptions, often rooted in stigma and ableism, shape the discourse around the sexuality of disabled individuals, and the law plays a critical role in reinforcing or challenging these perceptions. Our methodology combined case study analysis with discourse analysis to explore the nuanced ways the law interacts with disability and sex work. The case study method offered an in-depth examination; by selecting two pivotal cases from Israel and Australia, we sought to understand the multifaceted relations between legal context and the social construction of ideas in judicial rulings. Applying discourse analysis tools allowed us to unpack the underlying biases, assumptions, and social values that shape decision-making. For each case study, we examined three key components: (1) context, including the legal status and social norms of disability rights; (2) sex work and sexual therapy; and (3) rulings given by two judicial instances—trial and appeal (the Israeli district and supreme courts, and the Australian administrative appeals tribunal and Federal court). Each case followed a distinct path to determine the appropriate way to address a disabled person’s sexual needs. In the Israeli case of Ploni v. Migdal (2004; 2006), the courts grappled with the question of compensating the plaintiff for harm to his sexual function while operating in a field of law where disability rights do not directly apply and in a time where law enforcement declared war on sex trafficking. The Australian case of WRFM played out in a different setting, when and where disability rights took centre stage amid a reform to legalize sex work. The analysis of both cases, however, underscored the intricacies of how societies and legal systems define disability, sexuality, and legal norms. Our comparative analysis of both case studies uncovered the following juxtaposing themes:

The Interaction between Society, Policy, and Legal Outcomes: Legal reasoning and outcomes are deeply rooted and affected by social norms and policies. Each ruling was situated in a socio-legal context and reflected existing laws and policies regarding disability rights, sex work, sexual therapy, and surrogacy. The cases demonstrated obvious differences and contrasting characteristics in all contextual parameters. This dichotomy highlights the variability in how societies and legal systems conceptualize the sexuality of people with disabilities and how this conceptualization can change over time and space.

The Influence of Disability Rights Legislation and International Mechanisms on Judicial Rulings: Both case studies illustrated the evolving nature of disability rights within the legal system. The influence of domestic disability laws and international conventions has evolved over the last 15 years, pointing to the growing importance of global disability rights frameworks in shaping local legal discourse. Our analysis highlights the distinct but complementary roles of legal actors, both courts and legislatures, to ensure the full recognition and protection of disabled individuals’ sexual rights.

Sexuality—between Human Needs and Sexual Rights: Both case studies revealed a tension between acknowledging sexuality as a fundamental human need and a legal recognition of sexual rights. While courts recognized the significance of sexual intimacy as an inseparable part of human existence and even of social participation, translating this recognition into legally upheld rights remains a challenge that still requires a legislative initiative on a local and global scale.

Perceptions of Disabled Sexuality over Time and Space: Our analysis showed that perceptions of disabled persons’ sexuality are not static but rather evolve and vary over time. The selected cases demonstrated significant advances in our understanding of disabled persons’ sexuality. From the earliest Israeli district court ruling to the latest Australian Federal Courts verdict, we witnessed them embrace the notion that disabled persons are entitled to voice their interests and express their wishes, have sexual needs and desires and that disability should not condemn a person to asexuality and dissatisfaction. At the same time, there is still a significant road ahead as both rulings reinforce outdated stereotypes. As we demonstrated above, even the most inclusive statements were at least partly based on an ableist perception that people with disabilities are undesirable, with limited to no prospect of engaging in fulfilling relationships with partners from the community. A discussion of society’s role in creating disabling spaces, denying access, and limiting choices and opportunities is also absent.

This research uses case studies and comparative analysis to demonstrate the intricate dance between law, social perceptions, and the lived experiences of people with disabilities in the sexual realm. Our endeavour to bridge the gap between legal theory and judicial perceptions highlights the contradictions and challenges in addressing disabled sexuality. Through its comparative lens, the study contributes to the ongoing dialogue about disability, sex work, and the law, as well as the growing literature on the role and implementation of the CRPD. To conclude, this paper calls for further exploration into the concept of disability sexual rights that affirms the role of the law in both contesting and perpetuating stigmas and barriers faced by people with disabilities.

Statutes:

Americans with Disabilities Act of 1990, 42 U.S.C. 12101 (1990).

Equal Rights for Persons with Disability Law, 5758–1998 (Isr.).

Penal Code, 5737–1977 [Amendment No. 132] 2018 (effective 2020) (Isr.).

Disability Discrimination Act 1992 (Cth) (Austl.).

National Disability Insurance Scheme Act 2013 (Cth) (Austl.).

Road Accidents Victims Compensation Law, 5735–1975 (Isr.).

Summary Offences Act 1988 (NSW) (Austl.)

Sex Services Premises Act 2012 (NSW) (Austl.)

Victorian Sex Work Act 1994 (Vic) (Austl.)

Prohibition of Consumption of Prostitution (Temporary Order and Legislative Amendment) Law 2019 (Isr.)

Cases Cited:

Ploni v. Migdal Insurance Company, CC (TA) 1553/99 (2004) (Isr.).

Ploni v. Migdal Insurance Company, CA 11152/04, 310(3) PD 61 (2006) (Isr.).

WRMF v National Disability Insurance Agency [2019] AATA 1771 (Austl.).

National Disability Insurance Agency v WRMF [2020] FCAFC 79 (Austl.)