EMOTIONAL SUPPORT ANIMALS ARE MORE THAN JUST PETS: IT IS TIME FOR THE DEPARTMENT OF JUSTICE TO ALIGN ITS EMOTIONAL SUPPORT ANIMAL POLICIES WITH OTHER ANTI-DISCRIMINATION LAWS.

• Author: Butwin, Jake

Introduction 197 I. Background on Emotional Support Animals 200 A. The Development of Emotional Support Animals 201 B. The Definition of "Emotional Support Animal" 202 i. The Types of Emotional Support Animals 202 ii. Emotional Support Animals Distinguished from Service 203 Animals and Other Assistance Animals C. The Benefits of Emotional Support Animals 204 D. The Controversy Surrounding Emotional Support Animals 205 II. The Different Legal Regimes Regulating Emotional Support 206 Animals A. The Fair Housing Act 207 i. History of the Fair Housing Act 207 ii. Restrictions 208 iii. The Department of Housing and Urban Development 209 B. The Air Carrier Access Act 210 i. History of the Air Carrier Access Act 210 ii. Restrictions 211 iii. The Department of Transportation 212 C. The Americans with Disabilities Act 214 i. History of the Americans with Disabilities Act 214 ii. Title I's Restrictions on Employers 215 iii. The Equal Employment Opportunity Commission 215 iv. Title Ill's Restrictions 217 v. The Department of Justice 217 III. Rethinking the Department of Justice's Approach 219 A. The Department of Justice's Categorical Exclusion Is 220 Unreasonable B. The Department of Justice's Categorical Exclusion 221 Undermines Other Major Federal Anti-Discrimination Laws C. The Department of Justice's Categorical Exclusion Leads 223 to Even Greater Discrimination Against Persons with Mental and Emotional Disabilities D. The Department of Justice Can Revise its Policies 224 Without Compromising its Fraud, Public Health, and Public Safety Concerns i. The Department of Justice Can Mandate Certification 225 for Emotional Support Animals ii. The Department of Justice Can Require that Emotional 226 Support Animals Receive Standard Obedience Training iii. The Department of Justice Can Better Monitor 227 Medical Professionals iv. The Department of Justice Can Impose Other 228 Limitations on Emotional Support Animals Conclusion 229 INTRODUCTION

Rebecca began experiencing symptoms of anxiety and depression when she was fourteen years old. (1) At first, her symptoms would "come and go." (2) But eventually, anxiety and depression became a "constant presence in her life." (3) It hit her like a "ton of bricks," and as time passed, more and more of her days were spent "paralyzed by endless thoughts of regrets of the past and worries for the future." (4) Her life depended upon a solution. (5)

Rebecca attempted everything. (6) She tried anti-depressants, special teas, yoga, vitamins, and medical advice. (7) She even moved eight hours away from her home in "hopes of having a new beginning." (8) Nothing worked. (9) For over ten years, Rebecca woke up with "weight on [her] shoulders" and "nausea in [her] stomach." (10) Even getting out of bed felt impossible. (11) But Buddy, a Pembroke Welsh Corgi, changed her life. (12)

Buddy was Rebecca's "new beginning." (13) Since Rebecca met Buddy, she has never spent another day unable to get out of bed. (14) She has not cried herself to sleep or spent days paralyzed by fear and regret. (15) Instead, Rebecca has learned how to manage her emotions. (16) Buddy was the "missing piece" in Rebecca's life. (17)

Rebecca's struggles are not unusual. Each year, about 47 million Americans suffer from mental illness, (18) and research shows that mood disorders--like depression--are the third most common cause of hospitalization in the United States. (19)

Traditionally, there has been a general recognition that specially trained animals can be used to assist persons with disabilities. (20) For instance, many are familiar with the "guide dog" for the blind or the "hearing dog" for the deaf. (21) But increasingly, medical professionals have discovered the profound effects that ordinary animals can have on persons with mental or emotional disabilities. (22) And, for the most part, the law has adjusted. (23)

For example, the Department of Housing and Urban Development's regulations pursuant to the Fair Housing Act generally require housing providers to make "reasonable accommodations" for animals that provide emotional support to persons with disabilities. (24) The Department of Transportation considers a "service animal" to be "any animal... necessary for the emotional well-being of a passenger," and the Air Carrier Access Act requires airlines to accept emotional support animals for transportation in aircraft cabins. (25) And while the Equal Employment Opportunity Commission has long been silent on this topic, it recently signaled that its position is no different. (26)

Nevertheless, the Department of Justice has consistently declined to adjust its policies, (27) maintaining that, under Title III of the Americans with Disabilities Act, "places of public accommodation" (28) are never required to accommodate animals "whose sole function is to provide emotional support" to persons with mental or emotional disabilities. (29)

While the Department of Justice is justifiably concerned that "some individuals with impairments--who would not be covered as individuals with disabilities--[would] claim that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access" to public accommodations, (30) this Note argues that, on balance, a categorical ban on emotional support animals is unreasonable. This Note further posits that the Department of Justice's inconsistent policies not only undermine other major federal anti-discrimination laws, they also lead to even greater discrimination against persons with non-visible, mental, and emotional disabilities. (31)

Part I provides background on emotional support animals, their development, and the benefits they offer to persons with mental and emotional disabilities. Part II examines federal anti-discrimination laws and the different legal regimes that have developed to regulate the use of emotional support animals. Part III explains why the Department of Justice's distinct approach is unreasonable and discusses how it undermines other major federal anti-discrimination laws and leads to greater discrimination against persons with mental and emotional disabilities. Part III also describes how the Department of Justice can align its policies with those of other major federal anti-discrimination laws without compromising fraud, public health, and public safety concerns.

1. BACKGROUND ON EMOTIONAL SUPPORT ANIMALS

   Part I provides background on emotional support animals. Part LA describes the evolution and rise of emotional support animals. Part LB defines "emotional support animals" and distinguishes them from "service animals" and other "assistance animals." Part I.C highlights some of the benefits emotional support animals offer to persons with mental or emotional disabilities. Part I.D discusses some of the major issues surrounding the use of emotional support animals.

   1. The Development of Emotional Support Animals

      Humans began domesticating animals roughly 12,000 years ago. (32) Since then, domesticated animals have served a variety of functions, such as hunting, herding, and guarding. (33) Humans have also valued animals for their companionship. (34) Systematic attempts to train animals to help persons with disabilities, however, were not recorded until after World War I, when millions of veterans returned home from the front with permanent disabilities. (35) Blindness, in particular, was one of the more "corporeal consequences of the war." (36) As a result, countries began experiments to train dogs to serve as "guides" for the Wind. (37)

      That "transnational experiment" had far-reaching consequences for successive generations of blind veterans and other civilians with disabilities. (38) Since World War I, medical professionals have continued to discover the "vast potential" of properly trained animals. (39) For example, animals have since been trained to alert deaf persons to specific sounds, provide balance to persons with mobility disabilities, and alert persons with epilepsy of imminent seizure onset. (40) Animals have also been certified to visit and interact with patients suffering from a range of medical conditions. (41) Nevertheless, the use of ordinary animals, or "emotional support animals," to treat persons with mental and emotional disabilities originated only recently. (42)

   2. The Definition of "Emotional Support Animal"

      There is no single, prevailing definition of an "emotional support animal." Generally, an emotional support animal is any companion animal that provides therapeutic benefits to individuals with mental or psychiatric disabilities. (43) Importantly, emotional support animals are not pets. (44) Rather, licensed medical health professionals prescribe them to offer companionship, relieve loneliness, and help persons with verifiable disabilities such as depression, anxiety, and phobias. (45)

      i. The Types of Emotional Support Animals

      While laws differ laws in restrictions, (46) all domesticated animals may generally qualify as emotional support animals for medical purposes. (47) That includes cats, dogs, mice, rabbits, birds, hedgehogs, rats, pigs, horses, and ferrets. (48) This is in part because the animal's "very presence" is supposed to mitigate a person's disability symptoms. (49) Thus, while the type or size of an animal might bear on a medical professional's treatment decision, the relevant inquiry is often limited to whether the animal is indeed able to "alleviate one or more identified symptoms or effects of a person's disability." (50)

      ii. Emotional Support Animals Distinguished from Service Animals and Other Assistance Animals

      By most standards, emotional support animals are distinct from "service animals." (51) Unlike emotional support animals, service animals are trained to do work or perform specific tasks--pulling a wheelchair, guiding a person who is visually impaired, alerting a person who is having a seizure, or calming a person who suffers from post-traumatic stress...