Disability, sport and the limits of law

Abstract

Disability, sport and the law are three concepts which have rarely been linked in academic research. This thesis attempts to fill a gap by drawing these concepts together, in relation to public law and human rights, discrimination, education, planning and health and safety. Chapter 1 establishes frames of reference for the ensuing analysis of how the law can be applied to the participation of disabled people in sport. Some reasons for focussing the study of disability rights law on sport are provided; and different legal issues arising in the context of ‘mainstream’ and ‘disability specific’ sport are explored. The chapter then considers the framework of sports governance, and the powers of the courts in relation to sports organisations. Chapter 2 examines models and definitions of disability and the fundamental purpose of discrimination law, as it relates to sport. It concludes that current law insufficiently interprets progressive models of disability. It also concludes that the political and legal purpose of discrimination law in this context may be better understood in terms of ‘social inclusion’, rather than the more orthodox concept of ‘equality’. Chapter 3 considers rights which indirectly impact on participation in sport and it also considers the possible evolution of a ‘new’ right to sport. To facilitate this, a comparative examination is made of three different ‘models’: 1) bills of rights and the European Convention on Human Rights, as adopted into the Law of Scotland; 2) the Treaty of Lisbon and the constitutional model; 3) international human rights law and the United Nations Convention on the Rights of Persons with Disabilities. The chapter concludes that it is probably too early to posit a legal right to sport for disabled people, but that the combined impact of other human rights have some force – in particular the right to be free from discrimination. Chapter 4 then explores the fundamental characteristics of disability discrimination rights contained in domestic legislation, in the context of sports services. Enforcement mechanisms and ‘fourth generation’ equality law are considered. The chapter ends by noting how this area of the law may evolve in the light of current reforms. Chapter 5 considers disability education law, discussing judicial interpretation of debates about integration in, or segregation from, mainstream and ‘special’ sport in education. The courts may be justified in hesitating when they are asked to consider matters which are traditionally regarded as areas of public policy rather than of law. Lastly, Chapter 6 considers physical barriers to participation in sport by disabled people, focussing on discrimination issues in terms of planning and health and safety. The perception of the disabled athlete as a ‘threat’ to sport has influenced the way that the law has largely failed to protect disabled participants, specifically in relation to the ‘health and safety justification’ defence, which allows organisations to exclude disabled people from participating.