A person or a thing? Inside the fight for animal personhood

NEW YORK CITYThe monorail glides past outdoor exhibits displaying a red panda named Linus, a Malayan tiger named Suhana, and Penny the rhino (wearing sunscreen for her sensitive skin, our tour guide points out). Then we come to Happy, a 50-year-old Asian elephant.

As we watch her on this sunny spring day at the Bronx Zoo, in New York City, the chirpy guide cracks jokes and rattles off facts: Happy drinks up to 60 gallons of water every day, she enjoys digging in the sand, she gets frequent pedicures from zoo staff. The elephant lumbers over to the fence, swings her trunk, and lifts her massive right foot. “She came over to say hello!” a fellow zoogoer says to his daughter.

Happy doesn’t know it, but she’s at the center of a nationwide debate that turns on one question: Is Happy happy?

According to the Nonhuman Rights Project (NhRP), a Florida-based animal civil rights organization, the answer is no. On May 4, the New York Court of Appeals, the state’s highest court, agreed to hear the NhRP’s case for declaring Happy a legal person. A date hasn’t been set, but the NhRP expects it will be heard this fall.

We’re “arguing that Happy has the right to bodily liberty,” or freedom from imprisonment, says Steven Wise, the organization’s founder and president. He wants Happy to be moved to an accredited elephant sanctuary where she’ll be with others of her kind in a larger, more natural setting than her present acre-size enclosure where she lives alone.

This is the fourth court the NhRP has argued before on Happy’s behalf. It’s the first time the New York Court of Appeals, which accepts only about 5 percent of cases submitted, has agreed to hear one relating to animal rights. “We think our arguments are very powerful,” Wise says. “But who knows?”

Personhood is “a matter of public policy and moral principle,” he says. It’s a legal designation indicating that an entity has the capacity for rights or responsibilities (such as, for example, to pay taxes and obey laws). It’s “not a biological question,” and it doesn’t mean that Happy would be thought of as equivalent to a human. Corporations, bodies of water, animals, and even deities around the world have been recognized as persons. But in the United States, where no legal designation exists for nonhuman animals, Happy is merely a thing.

The Bronx Zoo, which is accredited by the Association of Zoos and Aquariums (AZA), disputes the idea that Happy has a bad life at the zoo, her home for more than 40 years. In statements, court filings, and publicly released emails, the zoo repeatedly has said that Happy is content.

The zoo has one other elephant, named Patty, but she’s housed separately. Happy had one female companion, Grumpy, for 25 years, who was euthanized in 2002 after being fatally injured by Patty and another elephant, Maxine. (Maxine developed cancer and was euthanized in 2018.) In 2006, Happy’s second companion, Sammie, was euthanized after her kidneys failed. That year, the zoo announced that when Happy, Patty, and Maxine died, they wouldn’t be replaced. That’s because if one died, the other two elephants might not get along, and it would be unethical to keep a solo elephant in the exhibit, the zoo told the New York Times.

According to the AZA’s accreditation standards, zoos with female elephants must “have a minimum of three females (or the space to have three females).” Ideally, the elephants would be grouped, says Dan Ashe, president and CEO of the AZA. “Sometimes animals don’t want to be in a group,” he says. “Happy doesn’t enjoy sharing space—she gets quite anxious.” The AZA puts priority on the well-being of individual animals, he says. “The Bronx Zoo is in full compliance with AZA’s accreditation standards.”

A deepening pool of scientific research gives clear evidence that elephants and other animals are smarter, more aware, and more emotional than previously thought. In light of this, a number of countries—including Germany, France, New Zealand, and the U.K.—have recognized in law their sentience. The U.S. remains conspicuously absent from the growing list.

Happy isn’t the first animal in the country for whom advocates have sought personhood status, but none has succeeded yet.

In 2004, an independent attorney sued the U.S. government on the grounds that its use of sonar to detect submarines was injurious to cetaceans. In 2011, the animal rights group People for the Ethical Treatment of Animals (PETA) sued the marine park SeaWorld under the 13th Amendment for the “enslavement” of five orcas being “forced to perform.” Four years later, PETA sued for copyright infringement after a photographer claimed ownership of a picture a monkey took of himself with the photographer’s camera. And in 2013, the NhRP argued in the New York State Supreme Court for personhood for four chimpanzees—two privately owned animals used in entertainment, two research lab animals—and four years later pressed a personhood case in Connecticut Superior Court on behalf of three elephants in a traveling roadside zoo. (Read more about the fate of these three elephants.)

“I find what’s happening [with Happy] to be the most exciting way that people are legally rethinking and approaching these issues,” says Janet Davis, a historian and professor at the University of Texas at Austin who is not associated with NhRP. “This is the way ultimately to open the floodgates for all creatures.”

‘Happy is not languishing’

That’s what Bronx Zoo director James Breheny wrote in an email to NhRP supporters in 2019. She’s “evaluated frequently by the people that know her best, including the veterinarians that have cared for her for years as well as the keepers who interact with Happy for hours every day.”

Happy “is more comfortable with her keepers and with safe barriers between her and other elephants,” Breheny wrote, and those who criticize her situation at the zoo “know nothing of our individual animal, her personality, preferences, or tendencies.”

Though advocates say Happy should be transferred to an elephant sanctuary, Breheny noted that Happy’s exhibit has many of the same features found in them: “water to swim in, mud to wallow in, vegetation to browse, and objects to interact with.”

Besides, because Happy can’t speak for herself, who’s to say what’s best for her? asks AZA president Ashe. “If it were my personal health and medical well-being, I’d want to be represented by a doctor, or I’d want to be represented by my family members,” he says. “Happy’s family is Bronx Zoo.”

The zoo recently tried to reintroduce Happy and Patty, but “neither animal was comfortable in the company of the other, and both elephants experienced different, yet obvious, levels of stress,” Breheny told NhRP supporters in 2019.  

Today, Happy isn’t completely alone and “has contact with” Patty, according to a statement by the zoo last year. Even though they’re in separate enclosures, they can see and occasionally even touch each other across a cable fence. Earlier this year, Breheny told a reporter that Happy and Patty are “like sisters who don’t want to share the same room.” One of Happy’s former keepers, Jerry Stark, has said she’s “doing phenomenal” on her own and that “she can’t be with other elephants—she just doesn’t get along with them.”

That Happy may dislike Patty “would not surprise any of us,” Wise says. There’s no doubt, he says, that Happy remains aware that Patty had attacked her original longtime companion, Grumpy, with whom she lived for more than two decades. “Happy did have a friend, and Patty killed her,” he says.

The Court of Appeals’ decision to hear Happy’s case “has not changed anything,” Max Pulsinell, the zoo’s executive director of communications, wrote in an email. “We will continue to be the advocates for Happy and her well-being as we have for the past four decades.”

Breheny and other zoo representatives declined National Geographic’s requests for interviews about Happy.

‘I’m looking at a depressed elephant’

Wise, unlike most lawyers, has never met his client, but he’s seen Happy on visits to the zoo. “I’m looking at a depressed elephant,” he says. “She doesn’t look up at us, she just stands there with her head down … I never saw an elephant do that.”

Research shows that elephants suffer in captivity. Zoo elephants die younger than wild elephants, and wild-captured elephants have an even shorter lifespan than their captive-born counterparts. They suffer from foot and joint issues, including arthritis, from standing on hard, unnatural surfaces. A 2012 Seattle Times investigation found that of the 390 elephants that had died in accredited U.S. zoos in a 50-year period, the majority succumbed to captivity-related injuries or disease.

Given all this, in recent years more than 30 other zoos in North America have phased out their elephant exhibits or, like the Bronx Zoo, have announced plans to do so, including the Central Florida Zoo north of Orlando, Philadelphia Zoo, and Chicago’s Lincoln Park Zoo.

Elephants are intelligent and empathetic. They use tools, have close family ties, comfort their friends, and even appear to mourn their dead. Their brains, which weigh about 11 pounds, are among the largest relative to body size of any land species and show similarities to those of cetaceans, great apes—and humans. We know only “a tiny fraction of what elephant brains are likely capable of,” elephant behavior expert and National Geographic Explorer Joyce Poole wrote in an affidavit for the NhRP’s case. (What are elephants really saying? Joyce Poole has catalogued nearly 50 years of data on elephant behavior.)

The experts supporting the case with affidavits or briefs include, in addition to Poole, elephant scientist Cynthia Moss, 50 animal law professors, 12 philosophers, five Catholic theologians, and two habeas corpus scholars.

The NhRP knows of a handful of other solitary elephants in the U.S., but Wise says they chose Happy partly because in 2005 she became the first elephant to pass the mirror test for animal intelligence. Researchers painted a white “X” on Happy’s head, and when she stood in front of the mirror, she repeatedly touched the mark with her trunk, indicating that she recognized the figure in the reflection as herself. The fact that Happy recognizes herself suggests she may also be self-aware—or have knowledge of her own mental states, such as thoughts and emotions.

The NhRP modeled the lawsuit on a 1772 London case in which an escaped enslaved man argued successfully that he’d been wrongfully imprisoned. Similarly, the NhRP asserts, Happy is being held against her will in “solitary confinement.”

Elephants have a complex social life, and they need the companionship of other animals, Wise says. “It’s terrible for an elephant to be by herself” in a confined space. “Elephants are evolved to move—Happy just stands there.”

Precedent for personhood

More than 8,000 miles away from Happy’s enclosure, dust clouds rose around giant feet on November 30, 2020, as Kaavan, another Asian elephant, made history when he stepped out of his transport crate and into his new home at the Cambodia Wildlife Sanctuary, in the northern part of the country.

Kavaan, dubbed “the world’s loneliest elephant” in global headlines and by Cambodia’s deputy environment minister, had spent more than 30 years at Marghazar Zoo, in Islamabad, Pakistan. After his mate, Saheli, died in 2012, he spent the next eight years alone, obsessively swaying and bobbing his head, according to court records—until lawyer Owais Awan filed a petition with the Islamabad High Court.

Awan argued that Kaavan was protected by national anti-cruelty laws, the principles of Islam, Pakistan’s state religion, and the right to life article in the country’s constitution, which states that humans have a right to a healthy environment.

Soon, animal advocates—including the singer Cher—were campaigning for Kaavan’s freedom. On May 21, 2020, the court ruled “without any hesitation” that animals are entitled to rights. “An animal undoubtedly is a sentient being,” the judge wrote, ordering Kaavan to be released to a sanctuary. (The ruling also referenced Happy, describing her as an “inmate” of the Bronx Zoo.)

“In all honesty, when I had filed the petition,” Awan says, “I had never imagined that all of this would have actually happened … I think the stars were in our favor.”

Other animals too have won legal personhood. In 2014, a case in India challenged the traditional practice of jallikattu, or bull taming, which uses methods such as twisting the animal’s tail, tugging on its nose rope, and beating it. The Supreme Court’s landmark decision banning jallikattu acknowledged that all nonhuman animals have the right to life, which it defined as “more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour, and dignity.”

In 2016, an Argentine court determined that a zoo chimpanzee named Cecilia was a legal person with inherent, fundamental rights. The ruling, which quoted philosopher Immanuel Kant (“We can judge the heart of a man by his treatment of animals”), ordered Cecilia to be moved to a sanctuary, and since 2017, she’s had a home in the Sanctuary of Sorocaba, in São Paulo, Brazil.

Meanwhile in the U.S., little progress has been made. As Wise sees it, persistent anthropocentrism—the cultural tendency to see the world solely through the lens of human values and experiences—is a major reason why the U.S. lags behind. “Even those cases that nonhuman animals lost outside the United States, the judges spent more time thinking about it than they do in our case,” he says. “The most poorly written cases have all been in the United States.”

The ‘scandalous unchastity’ of sparrows

Humans have a history of holding animals responsible for their actions—and punishing them accordingly. Pigs, elephants, bulls, dogs, cows, and other animals have been tried, found guilty, and executed for murder. In the early 1500s, a French bishop accused rats of eating the local barley crop, initiated a trial, and assigned the defendants a lawyer. The case was dropped after the rats failed to appear in court.

In Germany in 1559, a parson banned sparrows from the church for their “unceasing and extremely vexatious chatterings and scandalous unchastity” during the sermon, and he enlisted hunters to kill any bird that violated the ban.

These examples from another time show some, albeit perverse, understanding of nonhuman animal sentience and autonomy.

In colonial America, laws granted some protection for animals—for example, requiring that livestock owners allow cattle to “rest or refresh”—Janet Davis says. But “there was nothing about the animal being a sentient creature … There was always an assumption of animals as being property.”

This began to change in 1866, when the New York state legislature enacted an anti-cruelty law that became a model for other state and local laws in the U.S. It gave the recently formed American Society for the Prevention of Cruelty to Animals the authority to bring “the cruelest to justice,” Davis says, deputizing the organization to “essentially act as police.”

For the first time, “there was a recognition in the law that people were responsible to prevent suffering and that animals were sentient beings,” Davis says.

But even today, with science pointing a new way, courts only rarely have accorded rights to nonhuman animals—and never in the U.S. The notion of nonhuman animals as property devoid of rights has “bedeviled animal advocates for generations,” she says.

Happy’s case, as the first of many incremental changes in nonhuman animals’ legal status, could be a path toward unraveling this thinking, Davis says. “This is where we have to start.”

What personhood is—and isn’t

In a November 2020 hearing for Happy before the Appellate Division of the New York Supreme Court, First Department, held virtually, an associate judge named Ellen Gesmer asked Wise whether Happy, if she was granted legal rights, “would have all the rights of personhood in our country, including, for example, the right to vote?”

Asking whether Happy would have the right to vote shows a fundamental misunderstanding about the meaning of personhood, Wise says. Just as children are legal persons but can’t vote, drink alcohol, or own property, nonhuman animals can be persons without acquiring all the rights granted to adult humans.

The concept of personhood for nonhuman entities isn’t new in the U.S. In 2019 after a toxic algae bloom in Lake Erie, voters in Toledo, Ohio, recognized the lake’s “right to a healthy environment” by voting in favor of the Lake Erie Bill of Rights charter amendment. This meant that attorneys could sue polluters on the lake’s behalf. But last year, a federal court judge overturned the law as unconstitutional after a lawsuit challenged its legality. (In 2019, Uganda also formally recognized the rights of nature.)

Corporations have been afforded rights—and therefore considered legal persons—since the 1800s. In 2010, the U.S. Supreme Court ruled that limiting political spending by the nonprofit Citizens United violated its First Amendment right to free speech. Four years later in another famous corporate personhood case, the Supreme Court ruled that Hobby Lobby Stores, Inc., can claim exemption from providing employees with contraceptive coverage on religious grounds if the practice violates the company’s beliefs.

If corporations have rights, it follows that both animals and natural resources should have rights too, says Kelsey Leonard, a scientist and member of the Shinnecock Indian Nation. Leonard advocates for the integration of Indigenous traditions in water conservation and management. “This isn’t some revolutionary idea that’s going to upend our system,” she says. (In 2017, New Zealand recognized the legal personhood of the Whanganui River, which the Maori regard as a living being.) 

Native Americans have recognized the rights of natural resources for millennia. From an Indigenous perspective, when people harvest something from nature—whether it’s food, resources, or even just enjoyment—they also have a responsibility to give back, Leonard says. The same is true of Happy. “We’ve consumed Happy as a society … But what have we given back to Happy?”

What would a win for Happy mean?

If New York’s Court of Appeals rules for the NhRP, it wouldn’t mean that all elephants are automatically considered legal persons. After that, Wise says, “we’d probably work our way through the rest of the elephants in New York.” A win for Happy would help, he says. In approaching other facilities that have elephants, “we’d say, do you really want us to sue you, when the Court of Appeals has already said Happy has [rights]?”

The Bronx Zoo warns that what it calls the NhRP’s “radical argument” of animal personhood would set a dangerous precedent. A February 2021 brief by Breheny and the Wildlife Conservation Society (WCS), which runs the Bronx Zoo and is headquartered there, noted that various laws governing human-animal relationships—from the regulation of dog shelters and the transportation of horses to the criminalization of animal abuse—rely on the “bedrock distinction between humans and animals.” Declaring an animal a legal person would “disrupt and interfere with” that balance, they wrote.

Recognizing personhood based on the NhRP’s definition of autonomy as a “non-observable, internal cognitive process” also would make courts the arbiter of whether a being is autonomous enough to deserve certain rights, which Breheny and WCS said would further burden an already overloaded New York State court system. Requiring courts to determine a creature’s autonomy would leave them with an “impossible task.”

Regardless of how the legal precedent might affect other animals, if Happy wins personhood, Wise says the NhRP will ask the court to order her transfer to a sanctuary, where she’d be with other elephants.

In their February brief, Breheny and WCS said that such a move would amount to changing “the conditions of Happy’s ‘confinement’ from one enclosed setting to another.”

Whatever the result, the case before New York’s Court of Appeals may be Happy’s last chance for personhood. It “could be the end of our litigation,” Wise says, “either because we’ve won, or we’ve lost.”