THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
The Right to Sport and Culture
Convention on the Rights of Persons with Disabilities
Article 30, Participation in cultural life, recreation, leisure and sport
1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
(a) Enjoy access to cultural materials in accessible formats;
(b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;
(c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.
2. States Parties shall take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.
3. States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.
4. Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture.
5. With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties shall take appropriate measures:
(a) To encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels;
(b) To ensure that persons with disabilities have an opportunity to organize, develop and participate in disability-specific sporting and recreational activities and, to this end, encourage the provision, on an equal basis with others, of appropriate instruction, training and resources;
(c) To ensure that persons with disabilities have access to sporting, recreational and tourism venues;
(d) To ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system;
(e) To ensure that persons with disabilities have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities.
The information contained in this chapter will enable participants to work towards the following objectives:
· Define the right of persons with disabilities to participate in cultural life, recreation, leisure, and sport;
· Explain the importance of participation in culture and sport for persons with disabilities;
· Understand the interrelationship between participation in cultural life, recreation, leisure, and sport and other human rights;
· Identify ways in which the rights of persons with disabilities to participate in cultural life, recreation, leisure, and sport have been promoted or denied; and
· Understand the provisions on cultural life, recreation, leisure, and sport in the Convention on the Rights of Persons with Disabilities (CRPD).
GETTING STARTED: THINKING ABOUT PARTICIPATION IN CULTURAL LIFE, RECREATION, LEISURE, AND SPORT
Participation in cultural life, recreation, leisure, and sport are all essential components of being a part of one’s community. Unfortunately, persons with disabilities have often been denied the right to participate in the wide array of cultural, recreational, sporting, and leisure opportunities that the rest of society takes for granted. And all too often children with disabilities are denied their right to play.
Discrimination in the area of cultural life is a global phenomenon that takes on many forms. Cultural venues are all too often inaccessible to persons with disabilities, denying them their right to participate in cultural life as direct participants and as spectators. Even the most basic activities that should be readily open to all people in a community are often unavailable to community members with disabilities. For example, people who use wheelchairs are sometimes denied entry to movie theatres on the basis that their wheelchairs present a fire hazard for other participants. Tourism facilities around the world are full of barriers that restrict movement or prevent access altogether. Hotels have few, if any, accessible rooms and do not provide accessible signage for persons with visual impairments. Tour buses are rarely able to accommodate wheelchair users. Restaurants have been known to refuse to serve persons with intellectual disabilities. Television programming and other technology allowing people to access culture and sport is not made accessible for persons who are deaf.
Around the world, persons with disabilities experience discrimination and exclusion from active participation in sport, recreation, and leisure activities. Social and communication barriers prevent persons with disabilities from participating as athletes and as spectators because of negative attitudes and lack of access to information about sporting opportunities. Physical barriers prevent persons with disabilities from accessing sporting facilities and venues. Legal and policy barriers may also lead to exclusion. For example, many universities and schools do not have policies of inclusion for allowing students with disabilities to participate in sport, and coaches have no idea how to adapt sport for athletes with disabilities.
Children with disabilities often face numerous barriers in accessing their rights to sport, recreation, and play. At the same time, many disability organizations have successfully worked to open up opportunities for children with disabilities through the development of adaptive physical education programming in schools or community-based efforts to build accessible playgrounds.
Disabled People’s Organizations (DPOs) worldwide are working to promote the meaningful participation of persons with disabilities in cultural life, sport, recreation, and leisure activities, which directly affects their enjoyment of all other human rights. For example, being denied the right to participate in sport in school may directly impact one’s right to health. The right to participate in cultural activities is closely related to the right to access information; if information announcing cultural events is not provided in accessible formats, then one is effectively denied participation in that event. Increasingly, sport and cultural programming is seen as an important tool for peace-building, social mobilization, and the support of public health initiatives, such as HIV/AIDS education or polio immunization campaigns. The exclusion of persons with disabilities from such activities impacts the rights to social and political participation, as well as health and education. These examples demonstrate how human rights are indivisible, interdependent, and interrelated.
Examples of Barriers to Cultural Life, Sport, and Recreation
for Persons with Disabilities
· Negative attitudes about the ability of persons with disabilities to participate meaningfully in cultural life, sport, and recreation, both as participants and as spectators;
· Physical barriers to museums, theatres, music halls, spectator sporting venues, parks, sporting centres, and other cultural and recreational buildings and facilities;
· Lack of accessible transportation to cultural sites and sporting events;
· Lack of accessible information about cultural events and sporting opportunities, including events for persons with disabilities;
· Lack of accommodations to facilitate communication by persons with disabilities;
· Lack of knowledge and understanding about sign language as a distinct language/linguistic identity for many persons who are deaf;
· Lack of training for those involved in the organization of recreational, tourism, leisure, and sporting activities, as well as cultural activities, to understand the specific needs of persons with disabilities and how to provide necessary accommodations; and
· Lack of knowledge and experience about how to include children with disabilities in sport and recreation and how to develop adaptive physical education in schools and design accessible playgrounds and equipment.
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT PARTICIPATION IN CULTURAL LIFE, RECREATION, LEISURE, AND SPORT?
The rights to participate in cultural life, recreation, leisure, and sport are reflected in a number of international human rights legal instruments, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Specialized conventions also reflect these rights, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which affirms the right of women to participate in recreational activities, sports, and all aspects of cultural life. The Convention on the Rights of the Child (CRC) recognizes the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child, and to participate freely in cultural life and the arts.
While reflected in various human rights instruments, these rights are not as well developed as other human rights and are often forgotten. The right of persons with disabilities to participate in a wide array of cultural, recreational, sporting, and leisure activities is recognized as central to full inclusion for persons with disabilities and is therefore defined in some detail in Article 30 of the CRPD. For this reason, the CRPD is an important development in human rights law on participation in culture, sport, recreation, and related activities.
Article 30 of the CRPD recognizes:
· The duty of States to take measures to support access to places where cultural performances or services take place. This includes, for example, theatres, museums, cinemas, libraries, and tourism services. It also includes, as far as possible, access to monuments and sites of national cultural importance.
· The right of persons with disabilities to develop and practice their creative, artistic, and intellectual potential for both individual and societal benefit. This recognizes that persons with disabilities are full participants in the cultural life of their communities as, for example, artists, musicians, scholars, and actors.
· The duty of States to ensure that laws protecting intellectual property rights do not present unreasonable or discriminatory barriers in access to cultural materials by persons with disabilities. This would cover, for example, translating books and other material into Braille, providing audio-cassettes or providing sign language or forms of accessible technology for artistic performances.
· The right of persons with disabilities to equal recognition and support of their cultural and linguistic identity. This includes, for example, the right to use sign language and the recognition and support of deaf culture. It respects the dignity of persons with disabilities who see themselves as part of a cultural or language minority, such as some members of the deaf community.
· The duty of States to promote the inclusion of persons with disabilities in mainstream sporting activities. This approach favours an inclusive approach to programming, where persons with disabilities have equal access to sport and recreational facilities (for example, community swimming pools and adaptive playgrounds) and have opportunities for participation in both disability-specific sport and recreation (such as wheelchair basketball) and mainstream sport programming.
· The rights of persons with disabilities to organize, develop, and participate in sport and recreation with other persons with disabilities, including activities organized specifically for persons with disabilities. This covers both mainstream and disability-specific sport.
· The duty of States to take measures to ensure that persons with disabilities are included as recipients of services and programming by those who organize recreational, tourism, leisure, and sporting activities.
· The right of persons with disabilities to access and to use tourism facilities. This would include museums, cinemas, and hotels, ferries and cruise ships, among other facilities.
· The right of children with disabilities to play and to participate in recreation, leisure, and sporting activities in the school system. This also includes access to playgrounds in the community and adaptive physical education in schools.
The Duty to Respect, Protect, and Fulfil Obligations Relating to Participation in Cultural Life, Recreation, Leisure, and Sport
Taken as a whole, States’ obligations with regard to the right to participation in cultural life, recreation, leisure, and sport include::
1. Obligation to respect: States refrain from engaging in any act, custom, or practice that creates barriers to enjoyment of the right to participate in cultural life and sport.
Example: The State refrains from limiting or interfering with the access of persons with disabilities to sporting and recreational venues and adopts laws and policies that outline accessibility guidelines in such venues.
Example: The State refrains from enforcing discriminatory practices as State policy and does not impose discriminatory practices relating to cultural life, such as restricting or limiting the use of sign language.
2. Obligation to protect: States ensure that non-State or private actors do not violate the rights to participate in cultural life and sport.
Example: The State requires sign language interpretation to be provided for a cultural event open to the public in a private theatre.
Example: The State undertakes accessibility audits of sporting arenas open to the public and recreational facilities operated by private companies.
3. Obligation to fulfil: States must take proactive steps to ensure enjoyment of the right to participate in cultural life and sport by persons with disabilities.
Example: The State provides appropriate training for tourism officials on providing accommodations to persons with disabilities.
Example: The State adopts a national action plan addressing a comprehensive strategy to make sporting arenas accessible to persons with disabilities as participants and as spectators.
In sum, international human rights law strongly supports the right of persons with disabilities to participate in cultural life, recreation, leisure, and sport. The observation of these rights facilitates the enjoyment of other rights.
Disability and the Arts: Principles for Inclusion
· Every young person with a disability deserves access to high quality arts educational experiences.
· All art educators should be prepared to include students with disabilities in their instruction.
· All children, youth, and adults with disabilities should have complete access to cultural facilities and activities.
· All individuals with disabilities who aspire to careers in the arts should have the opportunity to develop appropriate skills.
Source: VSA Arts: http://www.vsarts.org
THE RIGHT TO CULTURAL AND LINGUISTIC IDENTITY
All persons have the right to participate in the cultural life of their community without facing harassment or coercion. Thus, persons with disabilities should not, as they often are, be restricted from the practice of their own culture, nor should they be prohibited from participating in the cultural life of their community. International human rights law recognizes the rights of linguistic minorities to use and develop their own languages and cultures, and also to access language education so that they may attain fluency in additional “official” or “national” languages.
Article 2 of the Universal Declaration of Human Rights (UDHR) recognizes the right to be free from discrimination on the basis of one’s language, and other international instruments affirm this right, including the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Such protections are of great relevance to those persons with disabilities who utilize sign language, Braille, or other modes and means of communication.
The inclusion in the CRPD of language specifically addressing the right of persons with disabilities to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture, is an important new development in human rights law. Deaf advocates at the CRPD negotiations worked hard to ensure such recognition and emphasized to governments that members of deaf culture use the term Deaf (often in print the term is capitalized when used as a cultural marker of identity) as a way of describing their cultural identity and affiliation much more than as a term that expresses their hearing status. The right of persons with disabilities to use sign language and to affiliate with a particular cultural identity is therefore a major advance in human rights law. It is also a clear recognition of the discrimination that many persons with disabilities have experienced in using sign language and other modes and means of communication in their communities.
SPORT AS A HUMAN RIGHT
The 1982 World Programme of Action Concerning Disabled Persons stresses that governments should encourage sport activities for persons with disabilities by providing facilities and organizations. The 1993 Standard Rules provide detailed guidance on making sport and recreation accessible to persons with disabilities. Building upon these earlier efforts, the CRPD supports the right of persons with disabilities to participate in both mainstream and disability-specific sporting activities. Inclusion recognizes the role of mainstream sports organizations and institutions to deliver disability sport programmes that are accessible to persons with disabilities. Disability sport refers to sport organized specifically for persons with disabilities to provide equitable and fair categories, based on disability and ability, in order to even the playing field. Disability sport may therefore be regarded as a category of sport, such as women’s sport.
For many years disability advocates have been promoting the right of persons with disabilities to participate in sport and recreational activities. The Paralympics are an example of disability sport at the highest levels of sporting competition. Other international disability-specific initiatives include the Deaf Games, organized by the International Committee of Sports for the Deaf, and the Special Olympics, a worldwide movement to provide competitive sport and recreational opportunities for persons with intellectual disabilities. However, there are numerous examples of community-based sporting opportunities, often organized by DPOs, to promote inclusion in mainstream sport or to promote disability-specific programming. A recent report issued by the UN Special Rapporteur on Disability noted that in many countries around the world, athletes with disabilities are a great source of national pride and that opportunities for persons with disabilities to participate in sport at the community level were on the rise.
Addressing Discrimination in Sports
In 2001, the Supreme Court of the United States reached a decision in P.G.A. Tour v. Martin, a case involving Casey Martin, a professional golfer with a disability who had requested accommodation in the form of permission to ride a golf cart in tournaments of the Professional Golfer’s Association (PGA). Martin’s disability was due to a disease affecting the blood flow in one of his legs, which caused extreme pain as well as fatigue, which was made worse by walking. The Supreme Court ruled that the PGA Tour is a place of public accommodation under the Americans with Disabilities Act. Accordingly, the PGA, as an operator of golf courses, must not discriminate against any player in the full and equal enjoyment of the goods, services, facilities, advantages, or accommodations of those courses. Since the PGA Tour is a place of public accommodation, the Court decided that the PGA had to accommodate Martin unless to do so would fundamentally alter the nature of the event. The Court held that providing Martin with a golf cart would not fundamentally alter the nature of the event because the fundamental nature of golf is shot making.
Source: P.G.A. Tour, Inc. v. Martin, 532 U.S. 661, 121 S. Ct. 1879 (2001).
In 2007, Oscar Pistorius, a South African sprint runner who has a double-amputation and was born without bones in his lower legs, took part in his first international competition. He raced against runners who ran on two legs and was able to do so with specialized artificial legs. His artificial lower legs, while enabling him to compete against all athletes, generated claims that he might have an unfair advantage over runners who ran on their own two legs instead of using prosthetics. Thereafter, the International Association of Athletics Federations (IAAF) amended its competition rules to ban the use of "any technical device that incorporates springs, wheels or any other element that provides a user with an advantage over another athlete not using such a device.”
Using high-definition cameras, the IAAF monitored the track performances of Pistorius in a race against Italian club runners in Rome and in Sheffield in 2007, at which he placed last. Scientists carried out additional tests following the race. They took the view that Pistorius enjoyed considerable advantages over athletes without prosthetic limbs. One report claimed that Pistorius' limbs used 25% less energy than runners with complete natural legs to run at the same speed and that they led to less vertical motion combined with 30% less mechanical work for lifting the body. On January 14, 2008, the IAAF ruled that he was ineligible for competitions conducted under its rules, including the 2008 Summer Olympics.
Pistorius appealed the decision to the Court of Arbitration for Sport (CAS). Following a two-day hearing, the CAS ruled in favour of Pistorius, and the IAAF council decision was revoked with immediate effect. The Court ruled overall that there was no evidence that Pistorius had any net advantage over able-bodied athletes. The CAS panel unanimously determined that the report of the lead scientist only tested Oscar’s biomechanics at full-speed when he was running in a straight line (unlike a real 400m race), that the report did not consider the disadvantages that Oscar faces at the start and acceleration phases of the race, and that the report failed to consider other disadvantages that Oscar experiences.
Source: Arbitral award delivered by the Court of Arbitration for Sport in the arbitration between Mr Oscar Pistorius v. International Association of Athletics Federations, CAS 2008/A/1480 Pistorius v/ IAAF,16 May 2008.
Tourism is the largest industry in the world. In the United States alone, some 42 million travellers with disabilities take 31.7 million trips per year. They spend $13.6 billion annually, including $3.3 billion on airfare, $4.2 billion on hotel accommodations, and $2.7 billion on food and beverage. Responsible tourism development and tourism that respects the human rights of persons with disabilities must consider inclusion in planning, designing, and implementing tourism projects. Most important, disabled people’s organizations (DPOs) must participate in such processes and need to engage in accessible tourism advocacy. The CRPD, which is the only major international human rights treaty to explicitly mention tourism, requires States to ensure that persons with disabilities have access to tourism and tourist services.
Barriers Faced by Tourists with Disabilities
· Inaccessible airport transfer and ill-trained airport staff;
· Lack of accessible transport;
· Inaccessible hotel rooms;
· Professional staff not trained to inform and advise about accessibility issues;
· Lack of information about a specific attraction's accessibility (such as museums, castles, exhibitions);
· Non-adapted toilets in restaurants and public places;
· Inaccessible restaurants and tourist attractions;
· Inaccessible streets (such as no curb cuts and cars blocking wheelchair access lanes); and
· Lack of disability equipment rental (such as wheelchairs, bath chairs, toilet raisers, electric scooters).
Disability Advocacy and Tourism
There is a large and growing movement within disability activism to promote accessible tourism. Many innovative and successful strategies have resulted in opening tourism to persons with disabilities:
· In Perth, Western Australia, a programme called “Beyond Accessibility” requires the hotels to use 10% to 15% of the profit they earn from the conventions brought to them by the Convention Bureau to enhance hotel accessibility.
· In Australia's state of Tasmania, a tourism group purchased several properties throughout the seven tourist regions of the island. Each location is fully wheelchair accessible. A bus with a lift for wheelchair is made available to tourists for travel throughout the region and, as a result, the entire island is open to travellers with disabilities.
· In the Canary Islands, disability advocates have improved access to services for Canary Island residents with disabilities by consulting with the tourism industry, developing an accessibility directory for the city of Tenerife, in the Canary Islands, and making available a sophisticated online resource that offers information to travellers with disabilities.
· Architects and their students from the Rhode Island School of Design are combining environmentally sensitive, “green” construction methods and building materials with accessibility concepts to develop an accessible eco-lodge in the US Virgin Islands. Known as Concordia Estates, this resort allows persons with disabilities close access to unspoiled nature. Tourist hotels in Hawaii have also shown some initiative, not only in providing guests with comfortable and accessible rooms, but also in advising them on accessible places for food and entertainment, as well as arranging for the rental of specialized beach wheelchairs to make the beach truly accessible for all.
· In Costa Rica disability advocates worked with government officials to develop an accessibility protocol to enhance access to the wonders of the rainforest (see text box). What is clear is that without the initiative of disability advocates, the goal of tourism for all will not be realized.
Access to National Parks in Costa Rica
In Costa Rica, a successful example of inclusive planning and implementation for national parks development resulted in the design and implementation of an Accessibility Protocol for Persons with Disabilities in Protected Wildlife Areas, based on extensive research and participation by the disability community. In partnership with the responsible ministry, disability groups worked to identify barriers to access in protected areas, trained park personnel on access issues, and drafted and implemented an accessibility plan. The project was overseen by the Ministry of the Environment and Energy, which established an Institutional Commission on Disability and an internal disability policy, as called for in domestic disability legislation.
Source: Luis Fernando Astorga Gatjens, “Costa Rica Designs and Tests First Accessibility Protocol in Protected Wildlife Areas,” Disability World (2003): http://www.disabilityworld.org/01-03_03/access/costarica.shtml
USEFUL RESOURCES ON PARTICIPATION IN CULTURAL LIFE, LEISURE, AND SPORT
· Adaptive Sports Foundation: http://www.adaptivesportsfoundation.org
o Organization focused on adapted sport for persons with disabilities.
· International Committee of Sports for the Deaf: http://www.deaflympics.com
o International organization devoted to sport within the Deaf community.
· International Paralympic Committee: http://www.paralympic.org
o Official website of the global governing body of the Paralympic Movement that organises the Summer and Winter Paralympic Games, and serves as the International Federation for nine sports.
· John F. Kennedy Center for the Performing Arts: http://www.kennedy-center.org
o Washington DC-based performing arts centre known for its accessible productions and performances by artists with disabilities.
· Janet E. Lord & Michael A. Stein, “Social Rights and The Relational Value of the Rights to Participate in Sport, Recreation and Play,” 27 Boston University Journal of International Law 249 (2009):
o Detailed analysis of the CRPD and Article 30(5).
· National Arts and Disability Center: http://www.nadc.ucla.edu
o California based centre focused on disability and the arts.
· Society for Disability Arts and Culture: http://www.s4dac.org
o Based in Vancouver, Canada, this organization presents and produces works by artists with disabilities and promotes artistic excellence among artists with disabilities working in a variety of disciplines.
· Special Olympics: http://www.speicalolympics.org
o Official website of the global body responsible for organizing the Special Olympics games.
· United States Association of Blind Athletes: http://www.usaba.org
o Sporting organization focused on sport for blind persons and persons with low vision.
· VSA Arts: http://www.vsarts.org
o Helpful website devoted to disability and the arts.
· Eli Wolff, et al. eds, Sport in the United Nations Convention on the Rights of Persons with Disabilities, International Disability in Sport Working Group (2007): http://assets.sportanddev.org/downloads/34__sport_in_the_united_nations_convention_on_the_rights_of_persons_with_disabilities.pdf
o Collection of essays and short works on sport and disability.
 UN Special Rapporteur on Disabilities, Global Survey on Government Action on the Implementation of the Standard Rules (Doha: 2006).
 Scott Paul Rains, “The Global Reach of Accessible Tourism” (16 May 2005).