'Intersectional Discrimination': Madras HC Lays Down Guidelines For Fair Treatment Of Disabled Women Athletes, Condemns 'Romantic Paternalism'

In an order that elaborately discusses the concept of 'intersectional discrimination' meted out to disabled women athletes on account of their gender and disability, Madras High Court has issued comprehensive directions to the respondent authorities to streamline the policy that pertains to such women athletes and their fair treatment.While issuing the directions after referring to a catena of international conventions and judgments, intellectual discourse and studies conducted along with its application in the Indian context, Justice R. Mahadevan noted in the order as follows: "In India with burgeoning population, women in general and disabled women in particular, struggle with both the oppression of being women in male dominated societies and the oppression of being disabled in societies dominated by the able-bodied. Women with disabilities in aspiring to achieve laurels in high levels of sport competition seldom gets encouragement and assistance and often face double discrimination associated with gender and disability…" The Court observed that the case at hand was a precise instance of 'discrimination based on the gender as well as the disability' and that the state and central governments have failed to ensure support and safety to disabled women athletes. "In the instant case, the petitioner being a disabled girl, had to overcome the psychological trauma of speech and hearing impairment. Despite the same, she excelled herself in the events of the long jump and high jump at State and National levels and bagged gold, silver and bronze medals, totalling 13. However, she was denied the opportunity of being participated in the 4th World Deaf Athletics Championship, 2021, though she was qualified in the National Selection Test…" According to the Court, even after the interim order on 13th September , the disabled sportswoman couldn't participate effortlessly in the Championship in Poland. The improper and non-cooperative attitude of the Sports Council of the Deaf at the State and Central Levels worsened the situation. The Court underscored that fairness and justice must be crystallised in all forms of human activity, including sports, and issued a set of directions as discussed below. Court's Observations Concept Of Intersectionality And Its Application In Indian Context The athlete, Sameeha Barvin, was not initially selected to participate in the World Deaf Athletics Championship, 2021, despite her exceptional performance in the selection rounds. The reason cited by the selection authorities was that they were 'not inclined to send a lone female member to the event and therefore, they have preferred male members for the event'. With the help of the Court's interim order, the petitioner was able to participate in the Championship and qualify for World Deaf Olympic Championship 2022 and Paralympic Olympics 2023.At the outset, the Court noted that the relief sought in the original writ petition was no longer applicable because she had already participated in the Championship. However, the Court noted as below: "This is a clear-cut case of gender discrimination attracting the rigour of Article 15(1) of The Constitution of India and the petitioner has been meted out the double discrimination and hence, this has to be examined with an intersectional lens so as to take appropriate measures by the authorities concerned for the purpose of eradicating all the difficulties / challenges faced and preventing from the injury suffered, not only by the petitioner, but also all the women athletes with disabilities", the court clarified before quoting Kimberle Crenshaw, who propounded the concept of 'intersectionality'. The Court noted that the proposition of Kimberle Shaw has applicability in the Indian context since factors like gender and caste are intrinsically linked, and the axis of discrimination almost always intersects when analysing the barriers faced by the people.Placing reliance on Patan Jamal Vali v. State of Andhra Pradesh, LL 2021 SC 231, which categorises disability and gender as the twin tales of societal oppression, the judge observed that the apex court judgment applied the concept of 'intersectionality' after having considered that 'it was a relevant factor in sentencing the accused for the offence of rape under section 376 of the Indian Penal Code, 1860 in the light of the woman's caste and disability.'Such an analysis through the intersectional lens also allows understanding the barriers faced by women with disabilities. The judge also noted that such intersectional analysis must include social divisions such as organizational, experimental and representational discrimination.Protectionism and Romantic PaternalismBefore delving into the subject, the Court noted that, as in the present case, the discrimination caused to women is often couched in 'protectionism', citing traditional concepts of stereotyped roles for women and the purported concern for...

'Intersectional Discrimination': Madras HC Lays Down Guidelines For Fair Treatment Of Disabled Women Athletes, Condemns 'Romantic Paternalism'

Sebin James

"Disabled women struggle with both the oppression of being women in male-dominated societies and the oppression of being disabled in societies dominated by the able-bodied", Madras High Court quotes Author Susan Wendell in the beginning of the order.

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