By Gabrielle Plowens

Mari and Vaigai – controlled by bullhooks at the Honolulu Zoo. Jambo, Kimba, Loulou, Lucky, Missy – prisoners of the Cheyenne Mountain Zoo. Amahle, Nolwazi, Mabu – breeding puppets of California’s Fresno Chaffee Zoo. Beulah, Karen, Minnie – violated circus performers. And Happy – detained at the Bronx Zoo. These elephants are clients of the Nonhuman Rights Project (NhRP), a civil rights group that works to help grant rights to animals.  

According to the NhRP’s main arguments, today’s legal systems see nonhuman animals as ‘things’, without legal personhood and, by extension, legal rights (Hutton, 2019). An interest in granting rights to animals has spiked in the last decade, as seen with the increase in court cases about animal personhood (Boyd, 2017). The animal rights argument explains that, because animals have deep cognitive abilities, they should be seen as “legitimate beneficiaries of ethics”, and therefore rights (Gardiner, Thompson and Callicott, 2015, p. 115). As explained by Dale Peterson, a science and natural history expert, the cognitive abilities of some animals, such as elephants, rats, or chimpanzees, through “neurologically based structures” give them “moral systems homologous to ours” (Peterson, 2011, p. 137). For example, elephants have shown signs of grief by standing next to the body of a dead kin for hours. Elephants will even examine the body’s skull, thus seeming to respectfully grieve those who have died (Boyd, 2017). Elephants also communicate in a sophisticated manner through low-frequency vocalizations and stomping which omit rumbles that travel long distances through dense vegetation (Bates, Poole and Byrne, 2008; Keen et al., 2017; Bakker, 2022).  

Elephant emotions, survival skills and communication show to what extent they can feel and think, giving us a reason to afford them legal protection in addition to appreciating their moral significance. Happy is no exception: she was the first elephant to pass the mirror self-recognition test (MSR) in 2005, which describes an animal looking into a mirror and recognizing their reflection, thus showing signs of self-awareness (Plotnik, de Waal, and Reiss, 2006; Plotnik et al., 2010) Happy successfully passed this test by seeing herself depicted in a mirror, after which she touched the white ‘X’ painted on her skin 47 times with her trunk (Plotnik et al., 2010). This demonstrates the cognitive and moral potential of elephants, a species that is already recognized to be extremely intelligent (Bates, Poole and Byrne, 2008). 

However, Happy’s cognitive strength does not alleviate her current suffering at the Bronx Zoo, where she lives in solitary confinement. In 2018, the NhRP filed a case for Happy’s personhood and a move to an elephant sanctuary, a place where elephants can live freely in a wild environment with “long-term care”, alongside other elephants (Chan, 2021; Fobar, 2022 ; Nonhuman Rights Project, 2023). Unfortunately, the US courts denied Happy’s personhood (The Associated Press, 2022) and the case has been closed, leaving her depressed at the Bronx Zoo (Chan, 2021; Fobar, 2022). 

Living at the Bronx Zoo 

Happy was taken from Thailand, sold to Lion Country Safari, and moved to the Bronx Zoo in 1977, with the goal of placing her in the in the Wild Asia Monorail Exhibit. In 2002, she was placed with an elephant named Patty with whom she did not get along. The Bronx Zoo therefore decided to keep her separated from Patty, thus depriving her from the regular social interactions wild elephants are used to: Happy became deeply depressed (Chan, 2021; Fobar, 2022). Happy has been at the zoo for 46 years, 16 of which she has lived alone on one acre of land, which is hardly sufficient for an elephant, a species meant to thrive in large natural expanses (Nonhuman Rights Project, 2023).  

In 2011, the Associations of Zoos and Aquariums (AZA), a non-profit that works to help zoos and aquariums update their conservation, education, and science guidelines, declared that elephants should be kept in trios to ensure healthy social conditions as experienced in the wild (Association of Zoos and Aquariums, 2012). Importantly, the Bronx Zoo, which is AZA accredited through 2024 (AZA, 2023), stated that if an elephant had to be kept alone, they would be euthanized to minimize their suffering. In spite of this new regulation, Happy was kept alive and alone because the zoo claimed she was content in these conditions (Nonhuman Rights Project, 2023). Despite a petition to end her confinement (Burrows, n.d), Happy remains alone as a ‘prisoner’ of the Bronx Zoo, where she can be seen today from a monorail trolley within the Wild Asia Exhibit (Nonhuman Rights Project, 2023).  

Donovan O. Schaefer, an ethics scholar, explains that solitary confinement, is “living death” for prisoners (Schaefer, 2017, p. 26). Happy is arguably experiencing a similar “psychological torment of confinement” and “isolation” at the Bronx Zoo (Schaefer, 2017, p. 27). According to Steven Wise, founder of the NhRP, she is severely “depressed” and “screwed-up” because of years of confinement which has deprived Happy of a natural life, one where social encounters and complex communication with other elephants are routine (Bates, Poole and Byrne, 2008; Shanahan, 2022).  

A Lack of Animal Welfare Law Enforcement 

One would think that zoos should be heavily regulated with animal welfare measures. And in theory, they are. The United States American Welfare Act (AWA), written in 1966, is meant to regulate animal safety. It pertains to the “research, testing, experimentation, or exhibition” of animals and acts as the “minimal acceptable standard” for “animal treatment” in the United States (National Agricultural Library). Although the AWA is mandated to protect all animals, zoos were not included in the regulatory language until 1970, when the act shifted to include protection for “exhibitor” animals within “carnivals, circuses, and zoos” (National Agricultural Library). However, these minor linguistic changes offered no additional safety for zoo animals in inadequate living situations like Happy because these guidelines are not consistently enforced by the United States Department of Agriculture (USDA) who is responsible for ensuring compliance with the AWA (Rudloff, 2017).  

The USDA has indeed been heavily criticized for remaining inactive in keeping animals safe, especially in zoos (Cardon, Bailey and Bennett, 2012; ASPCA, 2020). Rachel Fobar, writer for the National Geographic, further exemplifies these limitations by explaining that, after two USDA inspectors visited the Monterey Zoo in 2017 to create an AWA compliance report, they decided to get rid of the visual evidence of expired medication and animals with skin issues (Fobar, 2021). According to their report, the Monterey Zoo was in complete compliance with the AWA which was clearly not the case (Fobar, 2021). And so the AWA fails not so much in its regulatory norms, but in its enforcement by entities like the USDA. One can therefore imagine how little the AWA is doing in practice to protect Happy.  

Nonhuman Rights Project legal case 

The case filed by NhRP on Happy’s behalf was the first time a US state high court entertained an animal rights case (Nonhuman Rights Project, 2023). The NhRP used habeas corpus, the protection against “illegal detention”, to make a case for Happy’s personhood (Honderich, 2022). The NhRP launched the “common law writ of habeas corpus in the New York Supreme Court, Orleans County, demanding recognition of Happy’s legal personhood and fundamental right to bodily liberty and her release to an elephant sanctuary” in 2018 (Nonhuman Rights Project, 2023). The case attracted significant support from the scientific community, including Joyce Poole, a leading elephant researcher, and the philosophical community. The latter sent an amici curiae document – amici curiae being a group not directly related to the legal case, but that supports one of the parties with information (Thomson Reuters Practical Law, 2023) – in favour of Happy’s case (Nonhuman Rights Project, 2023). The final decision was made on May 14th, 2022, with a 5–2 ruling against Happy’s case (Nonhuman Rights Project, 2023). In the ruling, Chief Judge Janet DiFiore argued that, although elephants are intelligent species, habeas corpus should only be used to protect the freedom of humans, thus promoting the clear “legal distinction between human beings and nonhuman animals” (State of New York Court of Appeals, 2022).  

On the other side of the debate, Jenny Rivera, and Rowan D. Wilson, the two judges in favor, argued that Happy’s captivity at the zoo is inhumane and her suffering and cognitive abilities should act as grounds for her to be moved to a sanctuary and granted personhood (Nonhuman Rights Project, 2023). Although the case failed, the fact that the US court agreed to entertain Happy’s case means granting personhood to animals is becoming more tenable in this jurisdiction and beyond. For example, in 2014 in Argentina, Sandra the orangutan was involved in a similar case using habeas corpus: although the final ruling was against her being moved to a sanctuary, she was eventually moved to one in the United States (Chan, 2021). This demonstrates that Happy’s case is not isolated: although she was not granted personhood, the transformative potential of these debates could allow other courts to hear cases for animal personhood. Science is indeed showing us that animals have complex lives, cognition and emotions that merit deeper recognition in the legal system. 

Concluding remarks 

This blog post has made a case for Happy’s existing suffering and has problematized the AWA’s enforcement measures and the ruling made by US courts. Ultimately, the court’s decision to deny Happy’s personhood perpetuates anthropocentric law and, by extension, the idea that humans are more worthy of legal protection than animals (Deane-Drummond, 2019). Our current system does not make room for a legal coexistence between animals and humans. This has given us permission to “shrink” the lived realities of zoo animals: their once wild and open environment has shifted to the reality of confinement, explains Belgian philosopher Vinciane Despret (Despret, 2016, p. 165).  

Nevertheless, as seen in Happy’s case, opportunities which challenge anthropocentrism in positive ways are emerging. The NhRP is currently representing a number of elephants and chimpanzees, whose cases have had important, albeit inconclusive, responses from US courts. Mari and Vaigai’s case based on habeas corpus was the first Hawaian elephant rights case to be filed on October 31st, 2023, but a response is being awaited. Jambo, Kimba, Loulou, Lucky, and Missy’s case also became the first elephant rights case to be filed in Colorado on June 29th, 2023. This, however, resulted in a response from the Colorado district court on October 19th, 2023 that ‘dismissed’ the NhRP case, based on the claim that : “The protections legislative bodies provide to animals do not entitle them to rights commensurate with those inherent to human beings” (Colorado District Court, 2023). Amahle, Nolwazi, Mabu’s case was the first elephant rights case filed in California on May 3rd, 2022. Most recently, from August to November 2023,  the case has garnered a number of amicus letters from scientists, lawyers and philosophers in support of the habeas corpus claim by the NhRP. However, there have also been recent denials from the courts to make rulings on this case. Beulah, Karen, and Minnie’s case has been closed as of 2020 because of the lack of engagement from Connecticut courts.  

Despite this vicious cycle of legal wins and losses on behalf of animals, the NhRP is showing us that animal rights and welfare cases are slowly becoming more legally tenable in the United States. We have the potential to endorse the nonhuman turn that centers reciprocal relationships between humans and nonhumans, shifting power away from the human and questioning the anthropocentric system we live under (Büscher, 2021; Singh, 2022). The personhood debate allows us to begin a “co-constitution” with nonhumans, as we continue to evolve alongside them (Haraway, 2015; Timeto, 2020, p. 318).  

The support for Happy is clear, with 18 amicus briefs from 146 groups or people classified with the Court of Appeals. But, the fact remains that Happy is far from happy at the Bronx Zoo, and all other NhRP clients are still living hardships. In the meantime, we must hope that animal rights, welfare, and morality debates become more frequent, allowing more animals to be represented (and saved from needless suffering) through courts.