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Neurodiversity and Psychedelics Decriminalization

By Dustin Marlan

Following over fifty years of the racist and corrupt war on drugs, drug decriminalization is now a social justice issue. As I explore in Beyond Cannabis: Psychedelic Decriminalization and Social Justice, the decriminalization of psychedelic drugs, in particular, is a matter of diversity, equity, and inclusion.

Psychedelics have long been prohibited under Schedule I of the federal Controlled Substances Act. However, after successful efforts in Denver, Oakland, Santa Cruz, and Ann Arbor, there are now attempts underway to decriminalize psilocybin mushrooms and other natural psychedelics in over 100 cities across the country, including Washington, D.C., which will vote on Initiative 81 in November 2020.

Spearheaded by the organization called Decriminalize Nature, these initiatives do not fully legalize the substances (as Oregon’s Measure 110 for psilocybin therapy proposes). Instead, through either ballot measures or City Council votes, decriminalization ordinances simply minimize or eliminate penalties for the personal use and possession of natural psychedelics, and in some cases their production and distribution as well.

What principles justify these decriminalization efforts? Decriminalize Nature emphasizes cognitive liberty in advocating for “the unalienable human right to develop our own relationship with nature.” Cognitive liberty is the right to mental self-determination. From this perspective, individuals should have the freedom to alter their own consciousness and ingest what they please, so long as it does no harm to others. While providing powerful rhetoric, cognitive liberty has unfortunately been found not to poll well among the (non-libertarian leaning) public.

I believe that psychedelic decriminalization proponents should also be making a diversity-related claim. A focus on furthering neurodiversity—i.e., brain-based equality—could allow the decriminalization movement to gain broader public support, especially among left-leaning voters.

Neurodiversity is the belief that cognitive differences should be embraced as normal and natural human variations on par with categories like ethnicity, gender, and sexual orientation. Coined by Judy Singer in 1998, neurodiversity involves the recognition that social inequality, privilege, and oppression manifest as to cognitive diversity just as with other aspects of human diversity.

Under the tenets of neurodiversity, brain function that diverges from the norms of society—i.e., “neurodivergence”—should not be rejected or stigmatized, but understood rather as a source of creative potential. According to neurodiversity advocate Dr. Nick Walker:

Neurodivergence (the state of being neurodivergent) can be largely or entirely genetic and innate, or it can be largely or entirely produced by brain-altering experience, or some combination of the two (autism and dyslexia are examples of innate forms of neurodivergence, while alterations in brain functioning caused by such things as trauma, long-term meditation practice, or heavy usage of psychedelic drugs are examples of forms of neurodivergence produced through experience).

People who use psychedelics often report feelings of ego dissolution, an experience of unity or connectedness, transcendence of time and space, feelings of revelation or intuitive understanding, and a sense of awe or sacredness. Through these mystical experiences, psilocybin and other psychedelics are being shown to provide relief to those suffering from depression, addiction, and anxiety, as well as benefit healthy individuals by leading to personal and spiritual growth.

Neuroscience theorizes that these atypical insights relate to substantial changes to the brain’s “default mode network” (DMN). The DMN is a set of interconnected structures in the brain associated with ego, self-identity, and self-representation. Psychedelic states promote an unconstrained style of thinking by reducing neural activity within the DMN.

As Rick Doblin, founder of the Multidisciplinary Association of Psychedelic Studies (MAPS), explains, “psychedelics act by dissolving our filtering systems . . . . You don’t see things from your own individual perspective anymore, but you see a larger perspective, and you get more sensory input.”  And psychedelic use can cause long-term changes to the personality, such as increasing the trait of “openness”—an appreciation for new experiences.

Seen through the lens of neurodiversity, psychedelics lead to neurodivergent thinking, and their criminalization can be viewed as limiting diverse perspectives. Neurodivergent cognitive preferences, such as accessing altered states of consciousness, should be recognized as a source of creativity and spirituality, rather than stigmatized and criminalized.

In terms of cognitive liberty, we should be free to alter our own thoughts and consciousness.  In subtle contrast, in terms of neurodiversity, we should, as allies, respect others who wish to do so. The decriminalization issue is one of non-normativity, acceptance, and recognition. The law should not spend its limited resources criminalizing access to neurodivergent states of mind.

For many, the psychedelic experience is intertwined with their sense of identity. Through the neurodiversity paradigm, this psychedelic identity can be reconceptualized from drugged and delusional to a natural and valuable form of human diversity. The psychedelic community is deserving of equity and inclusion rather than discrimination and exclusion. Decriminalizing psychedelics is thus a step in the right direction.


Dustin Marlan is an Assistant Professor of Law at the University of Massachusetts School of Law.

Dustin Marlan

Dustin Marlan is Assistant Professor of Law at the University of North Carolina School of Law. He is also a Project Affiliated Researcher for the Project on Psychedelics Law and Regulation (POPLAR) at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

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