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Justice R. Mahadevan of the Madras High Court on Monday held that para-athlete Sameeha Barvin has been discriminated against by the state on grounds of her being disable and a woman. The Court directed Central and State government to prevent/prohibit unfair discrimination of differently abled women athletes on one or more grounds and issued a set of 12 guidelines on the same. 

Sameeha Barvin, a Chennai-based athlete living with hearing difficulties, contended she was subjected to discrimination when she was not allowed to participate in the fourth World Deaf Athletics Championship held in Poland this year. Barvin has alleged that she was not allowed to travel with her male counter parts citing ‘safety’ issues. Barvin is a three-time national gold medalist in deaf athletic championships and is also a world record-holder in the 100-meter track after breaking a 1986-record.

The Court passed an order which talks about intersectionality, women in sports and the culture of ‘protectionism’ adopted by people. The orders were passed to streamline the policy on allowing participation of such athletes in State, national and international events.

On point of intersectionality the Court noted that due to gender and disability, the women with disabilities confront various disadvantages which includes not only social divisions, but also poverty, race, class or sexuality. Intersectionality lends itself to such type of analysis, protecting one from taking a narrow approach.

“Therefore, where the axis of discrimination intersect, it is essential to view such cases from the lens of intersectionality in order to understand that the barriers, the challenges, the stigma as well as the practical difficulties faced by such persons are not only more intense, but also different and unique which call for a more in-depth and all-encompassing approach for addressing their grievances and ensuring substantive equality to them,” the Court said.

On the particular point of women with diability the Court noted that women are more vulnerable when it comes to disability. “Women with disabilities are always at the receiving end and they are neglected even by their husbands, besides being abused or deserted by citing their disability. Whereas, men with similar disability are always cared by their wives. Therefore, women with disability are vulnerable in terms of discrimination by reason of their gender, age, minority status, convergence and intersect in areas relating to gender-based violence, traditional practices, trafficking etc,” the Court said.

The Court further stated that the discrimination caused to women is often couched in ‘protectionism’ citing traditional concepts of stereotyped roles for women and the purported concern for their safety and security. This is also known as “romantic paternalism” of American jurisprudence. The Court further said that by not letting her travel, the State has enumerated her as a ‘object of sexual desire’. It is the duty of the Court to ensure safety for women.

“Not permitting the petitioner to travel along with her male competitors, smacks of blatant discrimination cloaked in protectionism, which is anathema to the substantive equality as envisaged under the Constitution of India. Rather than citing the reason of unsafe travel, it is incumbent on the State to ensure safety and security of its women, disabled or otherwise,” the Court stated.

The Court further pointed that this behaviour is equivalent to systemic indirect discrimination “couched in neutrality and seemingly innocent reasons perpetuated by social conditioning but which cannot stand scrutiny before law in the teeth of the expansive substantive equality as envisioned and envisaged in our Constitution, and to discard them just as stark instances of discrimination.” The Court stated that such instances of indirect discrimination perpetuate inequality and cripple the salient personal freedom and autonomy available to every citizen of this country, irrespective of their personal attributes and differences and based on variables of gender, disability, caste, sexual orientation, religion, or any other identified site of discrimination.

The Court thus found that Barvin has been discriminated against, just not because she is disabled but also because she is a woman. In light of the same, the Court issued the following guidelines for the purpose of streamlining the policy qua woman athletes with disabilities, so as to enable them to participate in all the events at State, National and International levels, with equality and dignity:

(i)to prevent or prohibit unfair discrimination against the women athletes with disabilities, on one or more grounds including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(ii)to provide adequate financial assistance and all other requisites to the women athletes with disabilities, so as to participate in all the events.

(iii)to follow proper selection process, so as to enable the meritorious candidates to participate in the events.

(iv)To provide necessary training and free medical facilities to all the women athletes with disabilities, who achieve meritorious level in the respective sports for participation in all the international games.

(v)to provide all possible means to entertain women athletes with disabilities to utilise their fullest potentials and capabilities so as to achieve success in all the events.

(vi)to provide all the disabled friendly materials, clothes, prosthetics and other accessories that may be required by the women athletes with disabilities in day today affairs, with incentives so as to encourage and nurture their excellence in the respective sports and to participate in the events at all levels.

(vii)to extend the financial assistance to one of the family members, who accompany the disabled female athletes to participate in the international games.

(viii)To give effect to the principle of reasonable accommodation by providing all assistance that are required / requested by the females athletes with disabilities so as to enable them to participate in the international games, on par with males.

(ix)to ensure safety and security of the female athletes with disabilities during their travel, irrespective of number of participants, so as to inspire their confidence freely and take part actively in the events at all levels.

(x)to sensitize the male counter parts and inculcate the sense of equality in their mind, so as to maintain safe environment for women athletes at all levels.

(xi)to reward all the disabled women participants in the international games, irrespective of their achievements or otherwise. (xii)Must ensure that all the women athletes whether with or without disabilities, be given equal treatment on par with males, so as to enjoy full and equal rights and freedoms and to maintain their dignity.

M. Sameeha Barvin v. Joint Secretary of Ministry of Youth & Sports & Ors.