International Human Rights Law, Equality and Sport: State Obligations to Ensure Gender Equality in Access to and Participation in Sport

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International Human Rights Law, Equality and Sport:

State Obligations to Ensure Gender Equality in Access to and Participation in Sport Louisa Bergsma

louisabergsma@hotmail.com

10526994

Public International Law Prof. dr. Yvonne Donders 24 July 2020

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Abstract

This thesis researches the question: Which obligations are there for States under International Human Rights Law to ensure equality in access to and participation in sport? This is done by interpreting the substantive human rights norms within the International Covenant on

Economic, Social and Cultural Rights and the Convention of the Elimination of Discrimination Against Women in conjunction with the right to equality and non-discrimination.

The right to equal access to and participation in sport leads to obligations for States to achieve equality in this regard. Inequality in access to and participation in sport is a result of formal, substantive and structural discrimination against women. Stereotypical ideas about femininity are still deeply entrenched in society, which is why achieving equality in access to and

participation in sport requires more than legislative action. It requires cultural and social change and an approach to equality that is formal, substantive as well as transformative.

The cover photo is taken by M’hammed Kilito, a photographer from Morocco. The picture is part of his project ‘Among you’ around personal identity for Moroccan youth. 1

“Salima’s parents think that weightlifting will deform her body and that she will no longer be able to marry the man they wanted for her. She feels that she no longer corresponds to the stereotypical idea and criteria of feminine beauty as desired by men, yet it does not bother her more than that, because it is the body she has always dreamed of. If she questions the man’s view on women, she also questions women’s view on themselves.”2

1_{www.kilito.com}

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Chapter 1 – Introduction

1.1 Subject of research

On a surf trip in Morocco I enjoyed the surf culture in the coastal areas. Since the first Californian surfers visited this coastline, the surfing sport has exploded and the Moroccans have made it their own. However, during my visit I noticed something was missing. The Moroccan men were surfing and instructing the tourists, but the Moroccan women were nowhere to be seen in the water.

When I asked why, the men answered that women do not like their skin to be tanned by the sun, or that they do not like to sport. At the same time, the women I spoke to said that they would like to learn how to surf, but they were insecure about their own abilities.

There are Moroccan women who surf and sport, it is not forbidden. However, it is also not encouraged. Women like Salima, the woman on the cover of this thesis, are challenging social and cultural norms by choosing to sport.

This got me thinking about the still existing gender differential in access to and participation in sport, and whether there could be a role for International Human Rights Law (IHRL) in achieving equality in access to and participation in sport.

Personally, I was lucky to enjoy sports without facing many barriers. Still, I was told that ‘ice hockey is not for girls’, that I would never be as good in sports as men are and that muscled arms don’t suit a girl; discouraging clichés that probably every woman in the world has heard at least once in their life. For me sport is a way to relax, to stay healthy, to feel good about myself and a way to feel strong. Everyone should be allowed to feel that way, but stereotypes, feminine expectations, religious and social norms are some of the still existing barriers that limit women in their access to and participation in sport.3

Therefore, the research question of this study is: Which obligations are there for States

under International Human Rights Law to ensure equality in access to and participation in sport?

3_{UN Division for the Advancement of Women, Department of Economic and Social Affairs ‘Women, gender equality and}

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1.2 Structure

This question will be addressed first by discussing the relationship between IHRL and sport in chapter Two (Sport and IHRL). The place of sport within the framework of IHRL has to be examined because obligations for States follow from the treaties that they ratify under International Law. In this discussion, firstly, the relationship between sport and the principle of human dignity will be examined. Secondly, it will discuss the applicable human rights norms to sport.

The relevant human rights norms that are part of the IHRL legal framework can be found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as in the Convention on the Elimination of Discrimination Against Women (CEDAW) since the focus is on equality.

The right to equality and non-discrimination are also applicable to the research question, these will be discussed in Chapter Three. Based on the provisions in the ICESCR and CEDAW and the theories that have been developed in IHRL, it will be examined how equality in access to and participation in sport can be achieved and ensured.

Both chapter Two (Sport and IHRL) and Three (Equality and Non-Discrimination) will interpret the relevant provisions of IHRL. This will be done according to the principles of International Law for treaty interpretation as codified in articles 31 – 33 Vienna Convention on the Law of Treaties (VCLT)4 by looking at the literal meaning of the text, the context and in the light of the object and purpose of the provisions. Also, together with the context, subsequent agreements, subsequent practice and relevant rules of international law shall be taken into account.5 The preparatory works of the treaties will also be taken into account as a supplementary means of interpretation, as far as they are available.6

Sources of interpretation that are authoritative but not legally binding are the General

Comments and Recommendations by the treaty bodies. Together with the Reports by Special Rapporteurs advising the Human Rights Council they will form an important substantiation for the interpretation of the provisions of IHRL.

4_{Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155 UNTS 331}

(VCLT).

5_{VCLT (n 4) Article 31.} 6_{ibid Article 32.}

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The same applies to the theoretical framework of IHRL, which is mostly based United Nations (UN) Documents together with secondary literature.

Finally, Chapter Four will give recommendations on State obligations that could achieve equality in access to and participation in sport. Based on the theory behind State obligations under IHRL, the work of human rights treaty bodies on the rights that have been discussed in the foregoing chapters and the work of the Special Rapporteurs in those fields the specific obligations for states to ensure equality in access to and participation in sport will be

formulated. This will be done by the tripartite system consisting of the obligations to respect, to protect and fulfil taken together with the elements that are necessary to enjoy these human rights.

The research will be conducted from an internal perspective and is descriptive as well as normative in nature. It is descriptive by aiming to obtain an accurate account of the place of sport within the framework of human rights, linking this to the principle of equality and the obligations that follow for States. Based on the descriptions and interpretations of the law, conclusions will be drawn that are normative in nature. The thesis will structure the existing information to address equality in access to and participation in sport within the framework of IHRL and to make recommendations to develop the law in this regard. The final chapter will make specific suggestions regarding obligations for states to achieve equal access to and participation in sport.

1.3 Definitions and scope 1.3.1 Sport

The focus of this thesis is on sport. For this thesis this includes organised as well as

unorganised sport, physical activity, physical education and exercise aimed at physical and mental development and relaxation. This is limited to sport on an amateur level, since

professional sport only concerns a small group of individuals who might be dealing with other challenges.

1.3.2 Women

The thesis is aimed at gender equality, with a focus on women. This includes women of all ages, ethnicities and backgrounds and everyone who identifies as a woman or faces the same barriers based on gender identity. Some groups of women might face multiple barriers in their enjoyment of human rights, not only based on their sex or gender. Although recognising

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problems of intersectionality and gender identity, the thesis will not get into these specific cases of multiple discrimination.

1.3.3 Access and participation

The thesis will focus on access to and participation in sport. This only includes access to and participation in practicing sport, excluding access to sports events. Although the latter is a related issue, it is outside the scope of this thesis.

Access is the first step to achieving equality, creating the possibility for everyone to participate in sport. Equal participation is the end goal because this leads to the actual enjoyment of the rights that will be discussed. Only when there is equal access, equal participation can be achieved.

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Chapter 2 – Sport and International Human Rights Law

This chapter explores the position of sport within the IHRL framework. First it will discuss how sport is part of human rights, through the concept of human dignity. Second, the UNESCO Sport Charter will be under discussion, questioning what is the legal relevance of this document in regard to the interpretation of IHRL and State obligations . Third, the applicable social and cultural rights within the ICESCR and CEDAW will be interpreted.

2.1 Sport and human dignity

The fundamental principle of human rights is human dignity. It was first formulated in the Universal Declaration of Human Rights (UDHR)7 and can be found in the preambles and provisions of most human rights instruments.

The meaning of human dignity is unclear since no definition is given by the UN, the UDHR or any IHRL treaty.8 Still, the concept is accepted to be the foundation of the protection of certain standards that are deemed necessary to lead a dignified life; also known as human rights. Not only is human dignity the basis of all human rights, it also impacts the

interpretation and application thereof.9 The Committee on Economic, Social and Cultural Rights (CESCR) has argued that based on this principle, an expansive interpretation of Covenant rights is required.10

Sport is related to human dignity because it contributes to personal development, expression and well-being and is an important part of daily, social and cultural life as well. This has been recognised by various international organisations like, inter alia, the World Health

Organization and the UN Educational, Scientific and Cultural Organization (UNESCO). 11 UNESCO has even recognised sport as a fundamental human right.

7_{Universal Declaration on Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) Article 1.}

8_{Paolo G. Carozza ‘Human Dignity’ in Dinah Shelton (ed) The Oxford Handbook of International Human Rights Law (OUP}

2013) 347 – 350; Evadné Grant ‘Dignity and Equality’ [2007] 7/2 Human Rights Law Review 299, 303.

9_{Carozza in Shelton (ed) (n 8) 347 – 350.} 10_{Carozza in Shelton (ed) (n 8) 355.}

11_{WHO ‘Health and Development Through Physical Activity and Sport’ (WHO 2003); UNESCO ‘International Charter of}

Physical Education, Physical Activity and Sport’ (Adopted 1978, Revised November 2015) (UNESCO Sport Charter); UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 16; UNGA ‘Report of the

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2.2 Sport as a human right within the UNESCO Sport Charter

When looking into sport and its relation to IHRL, one of the first things that one will find is the UNESCO International Charter of Physical Education, Physical Activity and Sport (UNESCO Sport Charter). Article 1 of this Charter states that ‘the practice of physical education, physical activity and sport is a fundamental right for all’.12_{The Charter was} adopted in 1978 and the first international instrument to explicitly recognise sport as a fundamental human right.13

In November 2015 the revised International Charter of Physical Education, Physical Activity and Sport was adopted to ensure more inclusive access to physical activity.14 The revised Charter highlights inter alia gender equality, non-discrimination, social inclusion in and through sport and the health benefits of sport.15

UNESCO Director-General, Irina Bokova, stated the following about the revised Charter: “The adoption of the revised Charter should mark a shift away from words towards action, from policy intent to implementation. It sets the tone for a new international sport policy debate, which should now focus on the exchange of good practice,

education and training programmes, capacity development, and advocacy. This is also a strong recognition of physical education as a driver for promoting gender equality, social inclusion, non-discrimination and sustained dialogue in our societies.”16

These are strong words, but while the UNESCO Sport Charter is nearly universally adopted, it is not a legally binding document under International Law.17 The Charter is a non-binding legal standard, aiming to set ‘ethical and quality standards for all actors designing,

implementing and evaluating sport programmes and policies.’

independent expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council’ (22 March 2010) A/HRC/14/36 para 3.

12_{UNESCO Sport Charter (n 11) Article 1.}

13_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 3.}

14_{UNESCO ‘International Charter of Physical Education, Physical Activity and Sport’ <}

https://en.unesco.org/themes/sport-and-anti-doping/sport-charter> Last access on 9 July 2020.

15_{UNESCO ‘International Charter of Physical Education, Physical Activity and Sport’ (n 14).}

16_{UNESCO ‘International Charter of Physical Education revised to ensure more inclusive access to physical activity’}

< https://en.unesco.org/news/international-charter-physical-education-revised-ensure-more-inclusive-access-physical-activity> Last access 9 July 2020.

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Even though international organisations18, and even the CEDAW Committee19 have referred to the Sport Charter as an international legally binding instrument, it is not. This means that it is not part of the IHRL legal framework and does not result in legal rights or obligations for States. However, it has been adopted by UNESCO’s General Conference, which consists of representatives of 193 UNESCO Member States.20 The near universal adoption of the UNESCO Sport Charter at least shows the willingness of States to accept sport as a human right. This is why it will be regarded as subsequent practice, establishing the agreement of States on the subject.21

2.3 Sport and human rights norms

Where the UNESCO Sport Charter recognises sport as a human right, it is not explicitly recognised as such by States in IHRL. By interpreting the existing human rights norms, this paragraph will lay out to what extent the provisions of IHRL are applicable to sport, and to what extent sport fits in the legally binding framework of IHRL.

2.3.1 The right to take part in cultural life

Article 15(1)(a) ICESCR contains the right to take part in cultural life for everyone.22 The meaning of culture and cultural life can be ambiguous and interpreted in many ways. It used to only include high culture and products of human creativity,23 but UNESCO has developed a wider definition of culture through the years.24 Nowadays, culture is understood as ‘the set of distinctive spiritual, material, intellectual and emotional features of society or a social group’ or as a way of life.25_{The modern notion of culture is encompassing arts and literature,} rites and ceremonies, sports and games, methods of production of technology, lifestyles, ways

18_{See f.e. UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3).} 19_{CEDAW ‘General Recommendation No 36’ para 11.}

20_{UNESCO ‘Member States List’ <}_{https://en.unesco.org/countries}_{> Last access on 22 July 2020.} 21_{VCLT (n 4) Article 31(3)(b).}

22_{International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entry into force 3 January}

1976) 993 UNTS 3 (ICESCR) Art. 15(1)(a); will be referred to as ‘the right to culture’ hereinafter.

23_{Roger O'Keefe, ‘The “Right to take part in Cultural Life” under Article 15 of the ICESCR’ [1998] 47/4 The International}

and Comparative Law Quarterly 904, 913.

24_{O’Keefe (n 23) 913.}

25_{Beate Rudolf ‘Article 13’ in Beate Rudolf, Marsha A Freeman, CM Chinkin (eds), The UN Convention on the Elimination}

of All Forms of Discrimination Against Women : A Commentary (OUP 2012) 352; Julia Ringelheim ‘Cultural Rights’ in

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of living together, value systems, traditions, and beliefs.26 This definition is accepted by the Committee on Economic, Social and Cultural Rights (CESCR) and formulated in its General Comment no. 21 on the right to take part in cultural life.27 Although this wide formulation of culture has been criticised, most scholars have embraced it.28

While culture is said to encompass ‘sports and games’, not much attention has been drawn to this subsection. In the most recent guidelines by the Committee (2008) 29 it mentions under article 15(1)(c) that access to sports events should be affordable for all segments of society.30 The question remains to what extent States have obligations regarding access to and

participation in sport under the right to culture. 31

In the CEDAW participation in sport is more explicitly included as a cultural right. Following article 13(c) of the Convention, States should take appropriate measures to eliminate

discrimination against women in their right ‘to participate in recreational activities, sports and all aspects of cultural life’.32_{In relation to the aim of eliminating discrimination against} women, the CEDAW is explicitly recognising a right to sport as a part of cultural life.33 Based on article 13(c) CEDAW the Special Rapporteur in the field of cultural rights also placed emphasis on access to sport as a part of the right to culture.34 Her Report states that ‘women must be able to access cultural goods and resources, institutions and infrastructures that enable them to follow a specific way of life, including in the areas of leisure, sports, culture and education.’35

26_{Beate Rudolf ‘Article 13’ in Rudolf, Freeman, Chinkin (eds) (n 25) 352.}

27_{UN Committee on Economic, Social and Cultural Rights ‘General Comment No. 21’ in ‘Forty-third session of the}

Committee on Economic, Social and Cultural Rights (21 December 2009) UN Doc E/C.12/GC/21.

28_{O’Keefe (n 23) 905; Julia Ringelheim ‘Cultural Rights’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 281 – 283.} 29_{On ground of Article 16 ICESCR (n 22) the Committee advises States parties in its guidelines on the form and content of}

their reports and on the measures and achievements that they have made in observance of the rights of the Covenant.

30_{UN Committee on Economic, Social and Cultural Rights ‘Guidelines on treaty-specific documents to be submitted by states}

under article 16 and 17 of the International Covenant on economic, Social and Cultural Rights’ UN Doc E/C.12/2008/224 Article 15(a).

31_{CESCR ‘General Comment No. 21’ (n 27) para 13.}

32_{Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entry into}

force 3 September 1981) 1249 UNTS 13 (CEDAW) Article 13.

34_{UNGA ‘Report of the Special Rapporteur in the field of cultural rights’ (10 August 2012) A/67/287.} 35_{UNGA ‘Report of the Special Rapporteur in the field of cultural rights’ (n 34) para 31.}

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2.3.2 Sport and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

Following from Article 12 of the ICESCR, States Parties ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’36

The Constitution of the WHO37, a document establishing the WHO, defines health in its preamble as being a ‘state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.In IHRL it is generally regarded as unrealistic for States to ensure this high standard as a right.38 That is why article 12 aims at the highest attainable standard of health.39 Consequently, the right to health does not only extend to adequate health care but also to the underlying preconditions for health, and adequate fulfilment of the social determinants of health.40 In contrast, the CEDAW does in fact only speak of health care in its provision on health.41

The WHO has addressed a global trend of increasing physical inactivity for many years.42 Research released by the WHO, in corporation with other actors like the NCD Alliance, shows that physical inactivity is one of the leading global causes of death, leading to non-communicable diseases.43 Engaging in sport can have a preventive effect on health and quality of life, which is why the WHO recommends sport as part of a healthy lifestyle.44 The UNESCO Sport Charter confirms this by stating that sport ‘contributes to the

maintenance and improvement of health’.45

The CESCR does not discuss the beneficial effects of sport in its General Comment. It does however place importance on prevention, which is also provided in article 12(2) ICESCR.46

36_{ICESCR (n 22) Article 12(1); will be referred to as ‘the right to health’ hereinafter.}

37_{Word Health Organization ‘Constitution of the World Health Organization’ (entry into force 7 April 1948).} 38_{Asbjørn Eide ‘Adequate Standard of Living’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 195 – 196.} 39_{Asbjørn Eide ‘Adequate Standard of Living’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 195 – 196.} 40_{Asbjørn Eide ‘Adequate Standard of Living’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 196.} 41_{CEDAW (n 32) Article 12.}

42_{WHO ‘Health and Development Through Physical Activity and Sport’ (n 11).}

43_{The NCD Alliance ‘Non-communicable diseases: A priority for women’s health and development’ (2011) 6.} 44_{WHO ‘Global Recommendations on physical activity for health’ (2010).}

45_{UNESCO Sport Charter (n 11) Article 2.2.}

46_{UN Committee on Economic, Social and Cultural Rights ‘General Comment No. 14’ in ‘Twenty-second Session of the}

Committee on Economic Social and Cultural Rights’ (11 August 2000) UN Doc E/C.12/2000/4 para 16; ICESCR (n 22) Article 12(2).

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The health benefits and preventive effect of sport may lead to the conclusion that there should be more emphasis on sport within article 12 and its implementation by States.

This is also the aim of the Report of the Special Rapporteur on the right to health. This report specifically focuses on access to and participation in sport as being part of a healthy lifestyle and as necessary elements to fulfil the right to health. 47 One of the conclusions of this Report is as follows:

‘Healthy lifestyles have not traditionally been viewed as a rights issue, but their adoption is integral to realization of the right to health. Sport and physical activity are a vital part of healthy lifestyles, and States and other actors incur important obligations to maximize individual capacity to exercise and to live healthfully.’48

2.3.3 The right to education

Article 13(1) ICESCR contains the right to education. Following from this provision, one of the aims of education is the full development of the human personality and the sense of its dignity.49_{In most schools, physical education is part of the curriculum. Therefore, access to} education will in general also entail access and participation in physical education. According to the UNESCO Sport Charter ‘every overall education system must assign the requisite place and importance to physical education’50

In its General Comment the CESCR does not pay any attention to physical education or physical development.51 It is unclear from the ICESCR or the General Comment on the right to education whether physical education falls within the scope of article 13(1) ICESCR. However, it has been recognised as being part of education in other instruments.

First, article 29(1)(a) Convention on the Rights of the Child states that the education of the child ‘shall be directed to: (a) The development of the child’s personality, talents and mental

47_{UNGA ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of}

physical and mental health’ (4 April 2016) A/HRC/32/33.

physical and mental health’ (n 47) para 96.

49_{ICESCR (n 22) Article 13(1).}

50_{UNESCO Sport Charter (n 11) Article 2.3.}

51_{UN Committee on Economic, Social and Cultural Rights ‘General Comment No. 13’ in ‘Twenty-first Session of the}

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and physical abilities to their fullest potential;’52_{The development of physical abilities seems} to imply physical education. Second, CEDAW article 10 is aimed at eliminating

discrimination against women and ensuring equal rights with men in the field of education. Within this article, paragraph (g) explicitly calls for equal opportunities to participate actively in sports and physical education.53 Third, according to the UNESCO Sport Charter and the Report of the Special Rapporteur on the right to health, the right to education should include physical education to inspire lifelong participation in sport.54

2.4 Conclusion

Sport is a part of human rights because of its value for human dignity and because it is a part of the right to health, the right to culture and the right to education. This thesis will not go as far as the UNESCO Sport Charter by recognising sport as a fundamental human right. Simply because it has not been adopted as such in one of the legally binding IHRL treaties. However, based on the substantive rights in this chapter there may be a right to equal access and

participation, this will be examined in the next chapter.

52_{Article 29(1)(a), Convention on the Rights of the Child (Adopted 20 November 1989, entry into force 2 September 1990)}

1577 UNTS 3 (CRC).

53_{CEDAW (n 32) Article 10.}

54_{UNESCO Sport Charter (n 11) Article 4;UNGA ‘Report of the Special Rapporteur on the right of everyone to the}

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Chapter 3 – Equality and Non-Discrimination

The foregoing chapter discussed the place of sport within the framework of IHRL on the basis of the applicable substantive human rights norms. This chapter is dedicated to the right to equality and non-discrimination. First, the right to equality and the right to non-discrimination within the ICESCR and the CEDAW will be discussed. These rights have extensively been interpreted by the Committees of both treaties as well as by scholars. The theories on equality and non-discrimination that have been developed will be discussed in this section. Second, the barriers that women can face with regard to equal access to and participation in sport will be laid out.

3.1 The right to equality and non-discrimination

Together with the principle of human dignity, the principle of equality can be found in article 1 UDHR.55 The principle of equality is fundamental to IHRL and to the enjoyment and

exercise of human rights for everyone.56 Since non-discrimination is the first step in achieving the end result of equality, these rights are strongly related.57

In the ICESCR non-discrimination can be found in article 2 paragraph 2 and the principle of equality in article 3. In its General Comment on equality the CESCR has also emphasised the fact that these provisions are integrally related and mutually reinforcing.58

Article 2(2) and article 3 ICESCR are not stand-alone provisions, meaning that they should always be read in conjunction with a specific right guaranteed under part III of the

Covenant.59 State obligations regarding equal access to and participation in sport therefore cannot simply follow from article 3 or article 2(2), they must be related to the substantive rights in the ICESCR.

55_{UDHR (n 7).}

56_{UDHR (n 7) Article 1; UN Committee on Economic, Social and Cultural Rights ‘General Comment No. 20’ in}

‘Forty-second session of the Committee on Economic, Social and Cultural Rights’ (2 July 2009) E/C.12/GC/20, para 2.

57_{UN Committee on Economic, Social and Cultural Rights ‘General Comment No. 16’ in ‘Thirty-fourth session of the}

Committee on Economic, Social and Cultural Rights’ (11 August 2005) UN Doc E/C.12/2005/4 para 1 – 3.

58_{CESCR ‘General Comment No. 16’ (n 57) para. 3.} 59_{CESCR ‘General Comment No. 16’ (n 57) para. 2.}

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The CEDAW is specifically aimed at the achievement of equality by eliminating

discrimination against women.60 Articles 1 – 5 lay down the general obligations of states parties in this regard, more extensively than in the ICESCR. Not only prohibiting

discrimination (Article 1), but also requiring States to take all appropriate measures to ensure ‘the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.’ (Article 3)61_{. Furthermore, States are obliged to ‘eliminate prejudices and customary} and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.’ (Article 5)62_{These articles reflect} the different approaches to equality and non-discrimination that will be discussed in the following sections.

3.1.1 Discrimination

The concept of discrimination can be separated into direct, indirect and structural discrimination.63_{Direct discrimination has been defined by the CEDAW as differential} treatment that has the purpose of ‘impairing or nullifying’ a woman’s rights64_{, if this is} explicitly based on grounds of sex or gender and cannot be justified objectively.65 Indirect discrimination occurs when laws, policies or measures appear to be

non-discriminatory, but have a discriminatory effect.66 This is defined by CEDAW as identical treatment that has the effect of impairing or nullifying a woman’s rights.67

60_{CEDAW (n 32).}

61_{CEDAW (n 32) Article 1, 3} 62_{CEDAW (n 32) Article 5.}

63_{Moeckli ‘Equality and Non-Discrimination’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 155 – 156; UNGA ‘Report of}

the independent expert in the field of cultural rights’ (n 11) para 40; Committee on the Elimination of all forms of

Discrimination Against Women ‘General Recommendation No. 25 on article 4, paragraph 1, of the Convention, on temporary special measures’ in ‘Thirtieth session’ (12 – 30 January 2004) UN Doc A/59/38.

64_{CEDAW (n 32) Article 1; Simone Cusack and Lisa Pusey ‘CEDAW and the Rights to Non-Discrimination and Equality’}

[2013] 14 Melbourne Journal Of International Law 1, 7.

65_{UN Committee on the Elimination of all forms of Discrimination Against Women ‘General Recommendation No. 28’ in}

‘Forty-seventh session’ (19 October 2010) UN Doc CEDAW/C/2010/47/GC.2; para 16; Cusack and Pusey (n 64) 7; CESCR ‘General Comment No. 16’ (n 57) para 12.

66_{CESCR ‘General Comment No. 16’ (n 57) para 13.} 67_{Cusack and Pusey (n 64) 7.}

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A third form is structural discrimination, although this is also often discussed as a result and part of indirect discrimination.68 The concept of structural discrimination has been developed in literature on the basis of interpretation of the articles of ICESCR and CEDAW by their Committees, in particular the CEDAW Committee.69 Gender stereotypes are often the basis of structural discrimination when it comes to discrimination against women. This is explicitly stipulated in article 5 of the CEDAW.70 While the ICESCR does not differentiate between the different forms of discrimination in article 2(2), the CESCR has recognised stereotyping as a form of structural discrimination against women.71 The same applies to the CEDAW and its Committee. The CEDAW Committee does not explicitly define a concept of structural

discrimination, but states in its General Recommendation that it is States parties’ obligation to ‘address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions.’72

3.1.2 Equality

To eliminate the different types of discrimination, there are different approaches to achieve equality. Three approaches that are discussed here are formal equality, substantive equality and transformative equality. These approaches are not competitive, but rather

complementary.73 Usually one or more of these conceptions are adopted when formulating laws and policies aiming for equality.74

Formal equality (de jure) is focused on the process rather than the outcome.75 Following this approach, equality means identical treatment. It is mainly focused on the content of the law and their even-handed application, and less on practice.76 A strictly formal approach to equality does not take underlying structures that could indirectly discriminate women into

68_{Rudolf, Freeman, Chinkin (eds) (n 25).}

69_{UNGA ‘Report of the independent expert in the field of cultural rights’ (n 11) para 40.}

70_{CEDAW (n 32) Article 5; Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 142 – 145.}

71_{CESCR ‘General Comment No. 20’ (n 56) para 20; Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 151.} 72_{CEDAW ‘General Recommendation No. 25’ (n 63) 7; Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 155.} 73_{Anne Hellum and Henriette Sindig Aasen (eds) Women’s Human Rights: CEDAW in International, Regional and National}

Law (Cambridge 2013) 110.

74_{Clifford ‘Equality’ in Shelton (ed) (n 8).}

75_{Moeckli ‘Equality and Non-Discrimination’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 149.} 76_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 54.}

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In contrast, substantive equality (de facto) is more concerned with the effects of the laws than the laws itself.78 This approach aims for equal opportunities and an equal outcome instead of merely equal treatment.79_{Substantive equality is also known as the ‘difference approach’,} holding that differential treatment sometimes may be necessary and justified to achieve equality in outcome.80 Or how Aristotle once put it; ‘unlike things should be treated in an unlike manner, in proportion to their unlikeness.’81 According to the CESCR as well as the CEDAW Committee unequal treatment is no discrimination if it has a beneficial outcome for women that is justifiable and objective.82

Although a formal approach is important to start with when trying to eliminate discrimination, it is widely recognised that this fails to eliminate structural inequality and discrimination.83 The substantive approach is more effective in this regard, but also not sufficient. A third approach is transformative equality. This aims at the transformation of social structures of hierarchy and dominance based on sex and gender in order to achieve full and genuine equality. 84 Article 5 in CEDAW illustrates the aim for transformative equality by addressing systemic and structural inequality of women. It calls for understanding equality as a

transformative principle in order to overcome systemic and structural discrimination.85 According to the CEDAW Committee it is important to strive for transformative equality to fully realise the goals of the Convention.86 ‘The position of women will not be improved as long as the underlying causes of discrimination against women, and of their inequality, are not effectively addressed.’87

77_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 53 – 54.} 78_{CESCR ‘General Comment No. 16’ (n 57) para 7.}

79_{Moeckli ‘Equality and Non-Discrimination’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 149.} 80_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 54.}

81_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 54.}

82_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 60; CESCR ‘General Comment No 16’ para 15.} 83_{Grant (n 8) 299; Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 155.}

84_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 55; Cusack and Pusey (n 64) 11.} 85_{Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 144.}

86_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 63.}

87_{Quote CEDAW in Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 63; CEDAW ‘General Recommendation}

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In contrast to the ICESCR, the CEDAW does not define equality in its provisions. This has been left to the CEDAW Committee, which treats it as complementary and essential to the Convention’s object and purpose.88_{Although not explicitly provided, the provisions of the} CEDAW illustrate that it aims at formal, substantive and transformative equality.89 The CEDAW Committee describes transformative equality as a part of substantive equality, while scholars often discuss it as a distinct approach to equality.90

The CESCR does not explicitly aim for transformative equality in its General Comments, it only differentiates between formal and substantive equality. In its General Comment on non-discrimination it states the following:

‘The Committee has regularly found that discrimination against some groups is pervasive and persistent and deeply entrenched in social behaviour and organization, often involving unchallenged or indirect discrimination. Such systemic discrimination can be understood as legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups.’91

By taking over the wording of article 5 in its General Comment, the CESCR is regarded to accept the approach of the CEDAW and its Committee to structural and systemic

discrimination and transformative equality.92

3.2 Barriers to equal access to and participation in sport

There exists a clear gender differential in access to and participation in sport. This is evident from research by various sources like the WHO93, The NCD Alliance94 and the Reports of the Special Rapporteur on the right to health95 and the Special Rapporteur in the field of culture.96

88_{Cusack and Pusey (n 64) 10; CEDAW ‘General Recommendation No. 25’ (n 63); CEDAW ‘General Recommendation No.}

28’ (n 65).

89_{Byrnes ‘Article 1’ in Rudolf, Freeman, Chinkin (eds) (n 25) 63.} 90_{Cusack and Pusey (n 64) 11; Rudolf, Freeman, Chinkin (eds) (n 25).} 91_{CESCR ‘General Comment No. 20’ (n 56) para 12.}

93_{WHO ‘Physical activity’ (23 February 2018) <}_{https://www.who.int/news-room/fact-sheets/detail/physical-activity}_{> Last}

access 23 July 2020.

94_{The NCD Alliance (n 43).}

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This inequality can be a result of direct, indirect or structural and systemic discrimination, often based on gender stereotypes.97

Discrimination leads to various barriers that limit women in their access to and participation in sport. The barriers faced by women ‘can be overwhelming’, as described in a UN report on women, sport and equality. 98

The barriers to women’s participation in sport may differ per country and per person. Although some may be experienced by most women, some may only apply to a minority of them. Some women may be lucky enough to not experience any barriers at all. At the same time, there may be many women that face more barriers than the ones that are discussed here, due to intersection with factors like disability, national origin, age, sexual orientation,

ethnicity, marital, refugee or migrant status, resulting in multiple discrimination.99 Without aiming or claiming to be exhaustive, this paragraph will give an overview of the barriers for women, mainly based on UN sources. Later, in chapter Four (State Obligations), these barriers will be related to specific legal obligations to remove these barriers in order to achieve equality in access to and participation in sport.

3.2.1 Formal barriers

The barriers that are laid upon women by the law or by rules of non-state actors will be called formal barriers. These barriers result in either direct or indirect discrimination, and a formal as well as substantive approach to equality is required in this regard.

In the most extreme case, formal barriers are laws that prohibit women to access sport facilities or to participate in sport. According to the Report of the Special Rapporteur on health, in some countries State-supported sports clubs and private gymnasiums are closed for women.100 In other countries the opening hours for sporting facilities may be shorter than those for men.101

96_{UNGA ‘Report of the Special Rapporteur in the field of cultural rights’ (n 34);.}

97_{CEDAW (n 32) Article 5; Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 144.} 98_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 18.} 99_{CESCR ‘General Comment No. 16’ (n 57) para 5.}

101_{Human Rights Watch ‘Steps of the Devil, Denial of Women’s and Girls’ Rights to Sport in Saudi Arabia’ (HRW 2012)}

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Clothing requirements can be a formal as well as a social or cultural barrier for women to access or participate in sport. As a formal barrier it may for be prohibited by law to wear revealing clothes. This can make it impossible for women to participate in a sport, for instance because certain types of clothes are required to play. The discomfort of certain prescribed clothes can also form a barrier to participate in sport. Legislation and rules about clothing are often religiously or culturally inclined.102

3.2.2 Physical and economical barriers

Other barriers are a result of physical and economic factors. Physical barriers can entail limited mobility, a lack of infrastructure or no appropriate or safe facilities.103 For men it may for example be helpful to provide free sporting facilities in public spaces. However, this is not always sufficient for women, as it may not be safe to sport outside in some places.

A lack of free time or financial means are economic barriers that may be experienced by women. This is often a result of the unequal sharing of domestic labour and childcare responsibilities104_{, the stereotypical idea of the persistence of male breadwinner models and} the gender pay gap.105

Another economic barrier may be insufficient funds for women’s sport activities and

facilities. According to the Report of the Special Rapporteur on the right to health ‘women’s sport remains deprioritized and heavily underfunded globally.’106 Budgetary allocations and subsidies for facilities, training and sports clubs are also not always evenly distributed.107 3.2.3 Social and cultural barriers

Finally, there are also barriers that are more difficult to see. Cultural norms (also including religion), social norms and gender stereotypes can form invisible and informal barriers for women to access and participate in sport that result in structural and systemic discrimination.

102_{HRW ‘Steps of the Devil’ (n 101) 10.}

103_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 14.}

104_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3)14; UN Committee on the}

Elimination of all forms of Discrimination Against Women ‘Pre-sessional working group, Haiti’ in ‘Forty-third session’ (12 August 2008) CEDAW/C/HTI/Q7 para 26.

105_{Holtmaat ‘Article 5’ in Rudolf, Freeman, Chinkin (eds) (n 25) 158.}

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An important barrier in access to and participation in sport for women are feminine stereotypes that often determine that sport is inappropriate for women or lay down certain body standards. The idea that muscles and sweat are not feminine, the perception that

women’s physical capabilities are inferior or that sport may even be unhealthy and leading to infertility are common stereotypes.108 Stereotypes can result in insecurity by women about their own capabilities or appearance, holding them back to try or to participate in sport.109 Especially when it is a male-dominated sport or sport facility this can impose a barrier.

Women may also not be encouraged to sport because they do not have (culturally appropriate) role models.110

Various religious norms can also form an important barrier for women to access and participate in sport. While freedom of religion is also an important human right, it has

explicitly been by the Special Rapporteur in the field of cultural rights that culture, including religion, should not be a barrier in the enjoyment of other human rights.111

Clothing requirements can follow from religious or other social or cultural norms without being imposed by formal rules. These norms are laid upon women by society instead of by the law but can be equally restricting their access to and participation in sport.112

According to the Report of the Special Rapporteur on the right to health, women can become victims of hostility and ostracism in some countries when they are seen to challenge

traditional notions of gender roles in society.113 Attempts to control the behaviour of women through violence, and to dictate what an acceptable body image is and acceptable activities are, have been described by the Special Rapporteur on the right to health as a clear violation of their human rights.114

108_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 15; HRW ‘Steps of the}

Devil’ (n 101) 18.

109_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 12, 18.} 110_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 12, 18.} 111_{UNGA ‘Report of the Special Rapporteur in the field of cultural rights’ (n 34) para 3.}

112_{UN Division for the Advancement of Women, Department of Economic and Social Affairs (n 3) 14- 15.}

physical and mental health’ (n 47) para. 70.

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3.3 Conclusion

There is a right to equal access to and participation in sport. This conclusion is based on the provisions of the ICESCR and the CEDAW on the right to equality and non-discrimination in conjunction with the human rights norms on health, culture and education. To achieve

formal, substantive and transformative equality in the enjoyment of this right, it is necessary to eliminate all forms of discrimination by removing the barriers that can limit women in their access to and participation in sport. This results in immediate obligations for States. The barriers that have been formulated in this chapter will be the basis of the obligations for States that will be formulated in chapter Four (State obligations).

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Chapter 4 – State Obligations

Chapter Two (Sport and IHRL) laid out why sport is inherent to the principle of human dignity and a part of the right to health, culture and education. Chapter Three (Equality and Non-Discrimination) discussed the principle of equality and the barriers that limit women to equality in access to and participation in sport. Based on these two foregoing chapters, States have immediate obligations to achieve equality in access to and participation in sport under IHRL. These obligations will be formulated on the basis of the analytical frameworks that have been developed by the CESCR in their General Comments and are widely used throughout IHRL.

The first analytical framework consists of the elements that are necessary to ensure equal access to and participation in sport. These elements are also called the ‘4-A’s’ scheme.115 Second, by describing the obligations by the tripartite framework of respect, protect, fulfil.116 The last paragraph will discuss whether equality access to and participation in sport should be a priority for States and whether or not IHRL is the right framework to address this issue. 4.1 Elements necessary to ensure equal access to and participation in sport

The typology that will be referred to as the ‘4-As’ scheme – despite the fact that the quantity of A’s differs in every General Comment - can be found in most of the General Comments of the CESCR on substantive economic, social and cultural rights. While the applicable elements differ for every right, the analytical framework is similar. The ‘4-As’-scheme was first used in the General Comment on Adequate Housing, but can also be found in the General Comments on the right to health, the right to culture and the right to education. The elements that these rights have in common are availability, accessibility and acceptability. These elements will be formulated for the right to equal access and participation in sport in the following sections. 4.1.1 Availability

To make sport available, institutions, programmes, facilities, goods and services have to be available in sufficient quantity within the State party.117_{. Also, educational institutions and} programmes should include physical education. Goods and services have to be open for

115_{Olivier De Schutter International Human Rights Law (Cambridge 2019) 306.} 116_{De Schutter (n 116) 306.}

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everyone to enjoy and benefit from. This includes sports stadiums, clubs and shared open spaces like seas, rivers and mountains.118 These are spaces where everyone can engage in sport, like hiking, swimming, kayaking or surfing for instance.

4.1.2 Accessibility

Institutions, programmes, facilities, goods and services related to sport have to be accessible to everyone.119 Accessibility has four overlapping dimensions, which are non-discrimination, physical accessibility, economic accessibility and information accessibility.120

4.1.3 Acceptability

When women participate in sport it has to be acceptable. This entails obligations to ensure that activities, facilities and physical education are relevant, culturally appropriate, gender-sensitive and of good quality.121

4.2 Tripartite obligations

States accept obligations and duties under international law when they become a party to a treaty. The specific obligations that follow from IHRL can be divided into three types of obligations; to respect, to protect and to fulfil.122

4.2.1 Respect

The obligation to respect means that States have a negative obligation not to take any measure that result in a violation of a right. 123 States should review their laws, policies, measures and programmes to make sure that they are not discriminating, either directly or indirectly, against women in the field of sport. In case they do, this results in an obligation to amend or repeal this.124 States should also refrain from adopting any new laws, policies, measures or

119_{CESCR ‘General Comment No. 13’ (n 51) para 6; UN Committee on Economic, Social and Cultural Rights ‘General}

Comment No. 14’ (n 46) para 12.

120_{CESCR ‘General Comment No. 13’ (n 51) para 6; CESCR ‘General Comment No. 14’ (n 45}

) para 12; CESCR ‘General Comment No. 21’ (n 27) para 16.

122_{UN ‘Foundation International Human Rights Law’ <}

https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html > Last access 15 June 2020.

123_{Frédéric Mégret ‘Nature of Obligations’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 97.}

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programmes that could be discriminating and ensure that State authorities do not discriminate by action or omission.125

4.2.2 Protect

The duty to protect requires States to proactively ensure that persons within their jurisdiction do not suffer from human rights violations by third parties.126 This obligation is also

protecting against violations within the private sphere, making it particularly important when it comes to violations of women’s rights.127_{Third parties can be sporting organisations, sport} clubs, schools or people within the private sphere that are limiting women in their access to or participation in sport. This means that States must exercise due diligence, meaning that they should actively prevent, investigate and prosecute violations of human rights.

4.2.3 Fulfil

The obligation to fulfil requires positive actions on the part of States to enhance the

enjoyment of human rights.128_{Formally, this requires States to adopt laws that are in line with} their human rights obligations. But the enjoyment of human rights is not only dependent on the law. Barriers such as negative stereotypes and cultural and social norms are often no direct result of the relation between States and individuals. Still, it is also the responsibility of States to remove these barriers in order to ensure equal enjoyment of human rights by everyone. The obligation to fulfil can be subdivided into an obligation to facilitate, promote and provide.129

4.3 Specific legal obligations

States have obligations to respect, protect and fulfil each of the elements (accessibility, availability, acceptability) of the rights concerned.130

In order to achieve equality and eliminate discrimination the three types of barriers that have been discussed in Chapter Three (Equality and Non-Discrimination)131 should be removed.

125_{CESCR ‘General Comment No. 16’ (n 57) para 18; Beate Rudolf ‘Article 13’ in Rudolf, Freeman, Chinkin (eds) (n 25)}

354.

126_{Frédéric Mégret ‘Nature of Obligations’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 97 – 98.} 127_{Frédéric Mégret ‘Nature of Obligations’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 98.} 128_{Frédéric Mégret ‘Nature of Obligations’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 98, 99.}

129_{General Comment No 13 para 49 - 50; CESCR ‘General Comment No. 14’ (n 46) para 33; CESCR ‘General Comment}

No. 21’ (n 27) para 51.

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This results in specific obligations for States to respect, protect and fulfil the necessary elements132 to achieve equality in access to and participation in sport. These obligations will be formulated below.

4.3.1 Obligations to remove formal barriers 4.3.1.1 Respect

The obligation to respect first of all means that no person should formally be prohibited from participating in sport. 133 States should also ensure substantive equality by evaluating the impact of seemingly gender-neutral laws, policies, measures and programmes on the ability of men and women to enjoy their right on a basis of equality.134

4.3.1.2 Protect

The obligation to protect entails obligations for states to monitor and regulate the conduct of non-State actors to ensure that they do violate the equal right of men and women to enjoy economic, social and cultural rights.135 This means that States should make sure that there are no rules by non-State actors that limit or prohibit women to access and participate in sport. States should also enforce the laws that prohibit these kinds of policies by third parties. Thereby, they can adopt administrative measures and programmes, establish public

institutions, agencies and programmes to protect women against discrimination, in particular in the field of sport.136

Similarly, States should make sure that education which is provided by non-State actors, like private or religious entities, should still conform to the equality standard and refrain from discrimination.137

131_{See paragraph 3.2.}

134_{CESCR ‘General Comment No. 16’ (n 57) para 18.} 135_{CESCR ‘General Comment No. 16’ (n 57) para 20.} 136_{CESCR ‘General Comment No. 16’ (n 57) para 19.}

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4.3.1.3 Fulfil

Under the obligation to fulfil, States should create conditions wherein women can access and participate in sport on an equal footing to men. This can be done through a wide variety of measures, including policy, administrative and judicial measures.138

To take away formal barriers States should actively adopt laws, measures and policies that prohibit discrimination on the ground of sex to access and participate in sport.

Especially when there is a conflict between religion or custom and the principles of the CEDAW, States are required to remove obstacles and to introduce measures directed at encouraging full compliance with the principles of the Convention.139

Under the right to education States have a minimum obligation to adopt and implement a national educational strategy. 140 To ensure access and participation by everyone in sport, this strategy should include physical education as a mandatory part of the curriculum and place specific emphasis on access to and participation in physical education for women.141

4.3.2 Obligations to remove physical and economical barriers 4.3.2.1 Respect

To respect the availability of access to and participation in sport, States should refrain from closing schools or sport facilities.142_{States should also be aware not to adopt any new laws,} policies or measures that create physical and economic barriers to equal access and

participation in sport. 4.3.2.2 Protect

To protect the accessibility of sport, States should ensure that third parties, including family

138_{Frédéric Mégret ‘Nature of Obligations’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 98, 99.} 139_{CEDAW (n 32) Article 3; Christine Chinkin ‘Article 3’ in Rudolf, Freeman, Chinkin (eds) (n 25) 116.} 140_{CESCR ‘General Comment No. 13’ (n 51) para 52.}

141_{UNESCO Sport Charter (n 11) Article 4.3; UNGA ‘Report of the Special Rapporteur on the right of everyone to the}

enjoyment of the highest attainable standard of physical and mental health’ (n 47) para 66.

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members, do not stop girls and women from going to school, to take part in physical education in school or from engaging in any type of sport.143

4.3.2.3 Fulfil

To improve the accessibility of sport, hence to take away physical barriers, it is important to create and provide adequate, safe, gender-sensitive spaces, facilities and equipment for women to sport.144 This includes the installation of secure changing and sanitary facilities.145 To take away economic barriers and make sport economic accessible it should be affordable for everyone. The allocation of budgets and resources should be adequate to meet the needs of both men and women and sufficient resources should be devoted to enabling women to access and participate in sport. 146 States must ensure that the benefits granted in the areas of

economic, social, and cultural activities, reach women on an equal footing with men.147 The CEDAW Committee also recommends the provision of scholarships to facilitate access to education.148

4.3.3 Social and cultural barriers 4.3.3.1 Respect

The obligation to respect entails an obligation to refrain from wrongful gender stereotyping.149 States should be aware of gender stereotypes when adopting laws, measures and policies. 4.3.4.2 Protect

The CESCR stated in its General Comment No 16 on the right to equality, that the obligation to protect requires States ‘to eliminate prejudices, customary and all other practices that perpetuate the notion of inferiority or superiority of either of the sexes, and stereotyped roles

143_{CESCR ‘General Comment No. 13’ (n 51) para 50; Fareda Banda ‘Article 10’ in Rudolf, Freeman, Chinkin (eds) (n 25)}

276.

physical and mental health’ (n 47) para 34, 72.

physical and mental health’ (n 47) para 25; Fareda Banda ‘Article 10’ in Rudolf, Freeman, Chinkin (eds) (n 25) 276 - 277.

147_{Beate Rudolf ‘Article 13’ in Rudolf, Freeman, Chinkin (eds) (n 25) 354 – 355.} 148_{Fareda Banda ‘Article 10’ in Rudolf, Freeman, Chinkin (eds) (n 25) 277.} 149_{Hellum and Aasen (eds) (n 73) 147.}

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for men and women.’150_{An obligation that is almost identical to the last sentence of article} 5(a) CEDAW.151

Both Conventions are aiming at the modification of social patterns that result in structural discrimination, through transformative equality as discussed in chapter Three (Equality and Non-Discrimination). States should not only modify their own behaviour, but also protect women against discrimination based on gender stereotypes by third parties.

In reaction to hostility and ostracism against women who are seen as challenging traditional notions of gender roles by engaging in sport, States should take steps to protect the rights of women who become victims of this kind of violence.152 For example through statutes that bind private actors,153 through the enforcement of criminal laws against perpetrators of violence against women, or through education initiatives that combat negative images and attitudes around women’s participation in sport.154_{States should also provide remedies to} victims of discrimination as well as effective judicial review. 155

4.3.3.3 Fulfil

Under the obligation to fulfil, and to take away social and cultural barriers, States must act to shift public consciousness away from a male-dominated sporting culture.156

Due to gender stereotypes resulting in a lack of role models, education or experience, women may have a negative perception of sport or they may be unaware of their physical potential.157 This is why States should actively promote and inform people about the values and benefits of an active lifestyle, and encourage women to participate in sport. States can promote and make

150_{CESCR ‘General Comment No. 16’ (n 57) para 19.} 151_{CEDAW (n 32) Article 5.}

physical and mental health’ (n 47) para. 70 – 71.

153_{Frédéric Mégret ‘Nature of Obligations’ in Moeckli, Shah and Sivakumaran (eds) (n 25) 98; Beate Rudolf ‘Article 13’ in}

Rudolf, Freeman, Chinkin (eds) (n 25) 354.

physical and mental health’ (n 47) para. 71, 80.

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information relating to a healthy lifestyle accessible through educational programmes as well as public health campaigns.158

To make sure that sport is accessible and acceptable for all women, States must establish and strengthen gender-sensitive programmes as well as facilities. To ensure that women can enjoy their rights on an equal footing to men, their differences have to be taken into account. For instance, women may place importance on other aspects of sport than men. While men may be focused on performance outcomes, women sometimes find the social or relaxing aspect more important. At the same time, women should be allowed to engage in all the same sports as men. States therefore should conduct research to make the programmes, measures and policies regarding sport appropriate and attractive for women. Also, the participation of women in the process of the design, implementation, monitoring and evaluation can be important to this end.159

4.4 Achieving equality in access to and participation in sport; why IHRL?

“Sport has the power to change the world. It has the power to inspire. It has the power to unite people in a way that little else does. It speaks to youth in a language they understand. Sport can create hope where once there was only despair.”160

Nelson Mandela.

The foregoing chapters have placed sport within the framework of IHRL to formulate obligations for States to achieve equality in access to and participation in sport. Apart from the question whether sport is a part of IHRL, one could also ask why sport would be a part of IHRL.

4.4.1 UNESCO

First of all, the UNESCO Sport Charter is already dealing with this subject. Why is it

necessary to include sport in IHRL as well? One could argue that the UNESCO Sport Charter

158_{CESCR ‘General Comment No. 14’ (n 46) para 37; UNGA ‘Report of the Special Rapporteur on the right of everyone to}

the enjoyment of the highest attainable standard of physical and mental health’ (n 47) para 40.

160_{Nelson Mandela (speech) ‘Sport has the power to change the world’ at the Laureus Lifetime Achievement Award (France,}