Kristi McGarity: The Disability Rights Case Against Mask Bans

In August 2024, Disability Rights New York filed a legal challenge to Nassau County’s Mask Transparency Act, a new law intended to deter hate crime by making it illegal for groups gathered in public to wear masks to hide their identity. The law allows exceptions for religious and cultural purposes and “to protect the health and safety of the wearer.” The New York legislature is considering a similar mask ban statewide. While the governor expressed a desire to exempt masking for prevention of illness, they have yet to clarify how the exemption could work in practice.

Some police departments oppose mask bans, because even with a health exception, officers who are not medically trained are put in the perilous position of having to identify “illegitimate” medical use. Because a health exception relies on an officer’s ability to judge intent, these laws are dangerous to anyone who wears a mask to avoid catching or spreading illness.

Before 2020, nineteen states had some restriction on mask-wearing. Several states don’t ban masks outright, but increase penalties if a perpetrator wears a face covering while committing a crime. Most of these laws date from the early to mid-20^th century. In the 1940s and 50s, anti-mask laws reassured the federal government that states were working to quash the KKK, while Jim Crow laws and racial segregation remained intact.

When the COVID-19 pandemic began, some states repealed their pre-existing mask bans. Other states left laws in place, but enforced them selectively during the public health emergency. Most states had some form of mask mandate for at least part of 2020-2021.

Based on data from 2009-2021, mandates to wear a mask have mixed results. This is likely due to different virus types, wide variance in mask quality, inconsistent day-to-day use, and the difficulty of separating the effects of masking from other strategies, such as indoor ventilation. Nevertheless, science is clear that for any given individual, a high-quality (KN95 or better) mask dramatically decreases the likelihood of contracting or spreading a respiratory virus.

The plaintiffs in the DRNY lawsuit wear masks because their disabilities put them at high risk for severe consequences from respiratory illness. Not only are disabled and immunocompromised people at greater risk from COVID-19 and other pathogens, but we have also seen the number of disabled people grow as more people are diagnosed with Long COVID.

Simply wanting to avoid sickness is sufficient reason to wear a mask. Simply wanting to avoid sickness is not sufficient reason for police to stop someone and ask whether they intend to commit a crime.

Yet under model mask ban bills, a group wearing masks in a theater could be charged with a misdemeanor, if an officer incorrectly believed they intended to hide their identity. People with disabilities (especially the 80% of disabilities that are invisible) fear being arrested at protests and other gatherings, since police have no clear standard to judge whether they are protecting their health or concealing their identity.

Despite the continuing threat of COVID-19 – the nation’s fourth leading cause of death in 2022  – some states are proposing mask laws even more restrictive than the pre-2020 status quo. North Carolina, for instance, passed a mask ban in June 2024 with a narrow exception allowing a “medical or surgical grade mask” for “preventing the spread of contagious disease,” replacing a broad pre-2020 exception that allowed “a mask for the purpose of ensuring the physical health or safety of the wearer or others.”

When lawmakers propose a mask ban in response to hate crime, it’s assumed that detaining masked individuals will prevent more horrific hate crimes in the future. Many experts on hate crime, along with survivors and advocates, question this assumption.

Risks of increased police surveillance are especially high for people of color, who are already disproportionately stopped, questioned, subjected to faulty and biased facial recognition technology, searched and harassed by officers and strangers. Even when mask-wearing was common early in the pandemic, people of color were more likely to be incorrectly perceived as having criminal intent while wearing masks to protect themselves and others.

Clean air would improve safety for people who are medically at risk, along with their families and care workers. In the absence of a major national effort to improve air quality, however, laws that stigmatize masking will inevitably stigmatize disabled and immunocompromised people trying to access daily life, from medical care to shopping to engaging in protest. Worse yet, a disabled person who is mistakenly arrested while wearing a protective mask could be brought to jail, only to face the bitter irony that jails are among the most hazardous places for spreading respiratory illness.

If and when another respiratory pandemic hits the United States, states may decide to repeal or selectively enforce anti-mask laws yet again. Reactive policy-making, snapping back and forth from requiring something to banning that same thing, has concerning implications.

As a community of people with disabilities, we urge policymakers to avoid reactive policy: consult experts, invite people with disabilities to speak from lived experience, and focus on long-term strategies that include everyone.

Kristi McGarity is a member of the Long Term Services and Supports – Healthcare Subcommittee of the National Council on Independent Living.