In 2008, the Department of Justice (“the DOJ”), Civil Rights Division, published a Notice of Proposed Rulemaking seeking to amend the regulations which enforce the ADA’s prohibition of discrimination in public accommodations.[1] As part of the proposed changes, the DOJ wished to clarify the obligations of public accommodations regarding the use of service animals by persons with disabilities.[2]

According to the DOJ, the need for clarification was brought about by a large number of complaints from individuals with service animals concerned that covered entities were confused regarding the full scope of their duty to accommodate service animals.[3] Another concerning trend in need of correction was the growing use of wild, exotic, and untrained animals as supposed service animals.[4] In response to these concerns, the DOJ proposed defining “service animal” to include dogs and other “common domestic animals.”[5] The proposed rule specifically carved out of the definition “wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents.”[6]

The DOJ explained this proposed change was necessary because of a growing concern among commentators who suggested that “limiting the number of allowable species would help stop erosion of the public’s trust, which results in reduced access for many individuals with disabilities despite the fact that they use trained service animals that adhere to high behavioral standards.”[7] In other words, an overly broad definition of service animal had resulted in public backlash with the practical effect of facilities turning away individuals with disabilities, which was the opposite intent of the ADA and its regulations.

The public reacted strongly to this proposed change with a stalwart defense of one category of animals specifically marked for exclusion from the definition of service animals. While commentators acknowledged the wisdom of excluding primates, reptiles, and other concerning animals, a strong case was made for inclusion of miniature horses as service animals.[8] One commentator pointed out that miniature horses had “proven to be very effective and well-received by the public both domestically and abroad in Europe.”[9] The American Association of the Deaf-Blind opined that miniature horses served “not only as seeing eye guides but as support for balance problems. For these deaf-blind people, guide dogs are not strong enough to give them something to hang on to when they stumble, wobble, or lose their balance.”[10] The Disability Rights Education and Defense fund likewise noted, “Miniature horses have been used as service animals by the disability community for some time, particularly the blind community. Miniature horses are able to be trained to do work or perform tasks for people with disabilities, can be housebroken, and are a viable option for those who are allergic to dogs or who would like a service animal with a longer lifespan.”[11] The Washington State Human Rights Commission argued that miniature horses “should also be allowed for those with balance issues or allergies to dogs.”[12] One commentator told the story of his blind friend who experienced deep grief from the loss of two guide dogs to old age. The commentator’s friend subsequently decided to train a miniature horse due to their long life expectancy and found she had received, what she called, “A Guide for Life.”[13]

The DOJ was ultimately convinced by these and other commenters into recognizing properly trained, appropriately sized, miniature horses as service animals in their final rule announced on September 15, 2010.[14] The DOJ stated the following points contributed to their decision:

  1. Proven Effective. Miniature horses already had a long history providing assistance to persons with disabilities.
  2. Allergies. Miniature horses constituted a viable alternatives to dogs for individuals with dog allergies.
  3. Religious Concerns. Miniature horses could service those whose religious beliefs preclude the use of dogs.[15]
  4. Longer Life/Strength. A strong factor in favor of miniature horses is their longer life span and strength in comparison to dogs. Specifically, miniature horses can provide service for more than 25 years while dogs can provide service for approximately seven years, and, because of their strength, miniature horses can provide services that dogs cannot provide. Accordingly, use of miniature horses reduces the cost involved to retire, replace, and train replacement service animals.
  5. Training Methods. Similar to dogs, miniature horses can be trained through behavioral reinforcement to be “housebroken.”
  6. Variety of Services. The rulemakers noted miniature horses are not one specific breed, but are derived from several breeds, with distinct characteristics that produce animals suited to a variety of service animal work. The horses generally range in height from 24 inches to 34 inches measured to the withers, or shoulders, and generally weigh between 70 and 100 pounds. These characteristics are similar to those of large breed dogs, such as Labrador Retrievers, Great Danes, and Mastiffs. According to information provided by an organization that trains service horses, miniature horses can be trained to provide a wide array of services to their handlers, primarily guiding individuals who are blind or have low vision, pulling wheelchairs, providing stability and balance for individuals with disabilities that impair the ability to walk, and supplying leverage that enables a person with a mobility disability to get up after a fall. According to one commenter, miniature horses are particularly effective for large stature individuals. The animal can be trained to stand (and in some cases, lie down) at the handler’s feet in venues where space is at a premium, such as assembly areas or inside some vehicles that provide public transportation. Some individuals with disabilities have even traveled by train and have flown commercially with their miniature horses.[16]

These points, in contrast to the lack of utility of other animals proposed exclusion, lifted miniature horses out of disfavor and into recognition as viable service animals. The example of the miniature horse highlights the important role public commentators serve in the rulemaking process.

[1] Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 FR 34508-01, (June 17, 2008)

[2] Id. at 34516.

[3] Id. at 34515.

[4] Id. at 34516.

[5] Id. at 34520.

[6] Id. at 34521.

[7] Id. at 34516

[8] Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 FR 56236-01 (September 15, 2010) (“Commenters asserted that certain species of animals (e.g., reptiles) cannot be trained to do work or perform tasks, so these animals would not be covered.”)

[9] DOJ-CRT-2008-0015-0906 (Steven Jacquez).

[10] DOJ-CRT-2008-0015-2670 (American Association of the Deaf-Blind).

[11] DOJ-CRT-2008-0015-2753 (Disability Rights Education and Defense Fund).

[12] DOJ-CRT-2008-0015-2693 (Washington State Human Rights Commission).

[13] DOJ-CRT-2008-0015-1752 (D. Vaughn).

[14] Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 FR 56272 (September 15, 2010).


[16] Id.