In the proceeding VI-6 W 1/22 [Kart] Brenna Huckaby v. International Paralympics Committee eV, the Düsseldorf Higher Regional Court served the reasons for the judgment of 20 January 2022 on the parties on 31 January 2022.
The IPC was ordered in the proceedings for an interim injunction to allow Brenna Huckaby to take part in the snowboard competitions in class LL-2 at the Paralympic Winter Games Beijing 2022 starting on 4 March 2022, although she herself belongs to class LL-1 for participants with a higher degree of disability.
It is true that the judgement has direct legal effect only between the parties involved in the proceedings. However, the grounds for the application for an interim injunction were primarily based on abstract general considerations about the purpose of a sports federation, in particular a Paralympic sports federation, which according to its statutes follows the goals of inclusion and fundamental problems of discrimination. This is also followed by the reasons for the judgement.
Brenna Huckaby’s request also confronted signatory in the first moment in his own stereotypical understanding about competition classes. Particularly for people who are no longer quite young, their own socialisation in sport and consumption of sporting events in the past has shaped an understanding that, in the majority of sports, was characterised by a clear separation of the sexes and a strict classification in terms of age and recognisable degree of impairment. However, this does not do justice to a more complex understanding of inclusion.
Despite the welcome autonomy of the federations, which should be maintained, sport is of course also only part of an increasingly complex reality of life in which questions of gender equality, but also the integration of people with different manifestations of impairments, are rightly taking up more and more space. A rigid system of rules does not meet the requirements.
With its own classification system, international Paralympic sport basically tries to ensure competitive equality in the individual performance classes and thus a similar probability of victory for all participants. That is good and right. The problem, not only in this case of Brenna Huckaby (and Cecile Hernandez), has arisen from the fact that strict conformity to the rules becomes more important to the federation than the achievement of the goal pursued with the establishment of the rules. This is a phenomenon that can be observed in almost all social systems – and an association is one such system – over time. It is also called stubbornness. The application for an injunction and the ruling of the Düsseldorf Higher Regional Court breaks up precisely this system.
The autonomy of associations does not go further than what is necessary, suitable and, in individual cases, appropriate to achieve their legitimate goals.
Legitimate objectives of a sports federation are the protection of the integrity of sport, the practice of sport in accordance with the rules, the protection of the health and safety of athletes, equal opportunities for athletes, the honesty and objectivity of competition, and the ethical values of sport. This canon of values is complemented, especially in the case of the Paralympic Association, by the prevention of all forms of discrimination and the realisation of inclusion. Enabling participation takes precedence over selection.
The essence of sport is the determination of a winner in sporting competition under standardised starting conditions. The establishment of standardised starting conditions serves to establish so-called competitive justice, hence the probability of victory in the competition, which is essentially equally distributed among all participants.
In this context, the concept of competitive justice is to be assessed from the structure of the competition as such and the totality of participants, not necessarily from the perspective of an individual participant. The participation of a structurally stronger participant in a less qualified field of participants would make the competition appear “fair” from the perspective of the high-performing participant because he or she has the higher probability of winning, but not from the perspective of the entirety of the structurally weaker field of participants.
Conversely, the organisation of sporting competition does not necessarily require that individual participants with weaker performance be prevented from participating in a field of participants that is otherwise stronger, and thus an imposed protection against defeat.
Competitive justice serves to protect the weaker from individual stronger participants in the competition, not to protect the stronger from the structurally weaker who have overcome the limits of their own structural weakness by legitimate means. In short, no one is disadvantaged by the participation of a structurally weaker athlete in a competition.
The International Paralympic Committee has failed to recognise this.
If there are indeed too few participants to hold a competition in a classification with a higher degree of impairment, not holding that competition may be justified. However, if the type of physical impairment is largely identical in the different classifications and the classifications only differ in the degree of impairment, the competition in the class for a lower degree of impairment must be opened for the otherwise eliminated participants.
The system of rules understood in this way demarcates the individual classifications to protect the weaker from the stronger, but not from the potentially weaker whose right to participate is paramount.
The personal fates of Caster Semanya and, more recently, of swimmer Lia Thomas in Ohio, USA, are currently still the cases that divide opinion. In the future, however, the sports world and thus also sports law will have to admit that biological sex or sexual identity, just like different forms of impairment as such, have no function for the establishment of competitive justice and therefore cannot serve as an absolute criterion for differentiation. Rather, what is decisive is the implications associated with a physical impairment or gender affiliation with regard to potential performance in competition. In this context, the undersigned is aware that the necessary further differentiation represents an overriding challenge.
At least in the Brenna Huckaby case, the Düsseldorf Higher Regional Court succeeded in finding a robust solution to the problem.