Published February 11, 2008
Recently, there have been a number of situations that have raised questions about whether females can participate in all-male sport activities and, conversely, whether males can participate in all-female sport activities – and if so, under what circumstances. In our Fall 2006 Newsletter we reviewed the case of Pasternak v. Manitoba High Schools Athletic Association (MHSAA). That decision has now been appealed by MHSAA and the decision was rendered in late January this year.
The original decision
The Pasternak twin sisters made a complaint to the Manitoba Human Rights Commission when the MHSAA would not let them play on their high school boys’ ice hockey team. There did exist a girls’ team at the school; however, the Pasternaks argued that this team did not play at a skill level that was appropriate for them. MHSAA argued that the high school girls’ team was new and it needed the leadership and skill of the Pasternak twins to develop further. In other words, allowing the top players to play elsewhere essentially undermined the formative girls’ team.
The Human Rights Tribunal rejected these arguments, stating that the girls did not sign up to be leaders or pioneers, but to be players on a school team commensurate with their level of skill. Making the point that “equal opportunity must mean more than simply having a team for each gender”, the Tribunal stated that the policy of the MHSAA that teams will be “equally-resourced” must be interpreted broadly, and accepted the evidence of experts that “the concepts of equal opportunity and equal resources include the opportunity to participate and compete at one’s own level”.
This decision is consistent with the earlier decisions in both Blainey v. Ontario Hockey Association (No.1) and Casselman v. Ontario Soccer Association. In Blainey there existed no girl’s hockey team. In that case the Ontario Human Rights Tribunal ruled that Blainey should be allowed to play on the boy’s team. The decision in Casselman extended the opportunity for girls to play on boy’s teams, whether or not there was a comparable experience available for girls. In this case two girls played on a mixed soccer team until they were banned at the quarterfinals stage of a competition. They were given the opportunity to play on an all-girls team, but the calibre of the team was not comparable. The Ontario Human Rights Tribunal found in favour of the girls and ordered that the soccer association not stop females from participating with males in soccer on an integrated basis.
The MHSAA Appeal
A number of interesting issues were raised during the course of this appeal. First, in confirming that the Pasternaks had established a basic case of discrimination against MHSAA, the Court pointed out that the twins had been denied the opportunity to be judged on the basis of their personal merit because of their gender. In other words, they were required to try out for the girls’ hockey team (as opposed to trying out for the boys’ team) solely on the basis of their sex. Being treated on the basis of merit as opposed to a personal characteristic such as one’s sex is the essence of “substantive equality” within the Canadian legal system.
The judge in this appeal therefore concluded that the best place to judge individuals on their own merit was through the team try-out process. The evidence was clear that the Pasternak twins, though not expert hockey players, did possess a level of skill beyond that of the girls’ team and certainly were competitive with the boys. Had the evidence not supported this level of skill in the twins, the outcome may well have been different.
MHSAA argued that notwithstanding the twins’ skill, there was a reasonable justification for the discrimination. MHSAA argued that its mandate was to provide a reasonable opportunity for sport participation to all students and that it could not “tweak” the system in every area for each individual or group of individuals. The original Adjudicator as well as the appeal judge disagreed with this characterization of the mandate. Pointing to MHSAA’s own governing documents they found that the MHSAA was not involved in managing sport programs within individual schools, thus could not be characterized as “tweaking” anything - its mandate was to ensure an inter-school competitive sport program that represented “the highest competitive level of school competition in their sports”.
An important lesson to us all from these decisions is that the nature of the evidence that must be brought forward to argue a reasonable justification for a discriminatory practice. It is now clear that the argument for any justification must be supported by concrete evidence. It will not be enough to rely on presumptions, impressionistic evidence or anecdote. Some direct evidence that the concerns anticipated will arise, and what their actual impact might be, must be offered to justify the discrimination. The judge noted the lack of such evidence with regard to the concern that allowing girls to play boys hockey would cause the erosion of female hockey. In fact, the objective evidence points to just the opposite – female hockey has flourished in the twenty years since the Blainey decision.
Another lesson is for sport organizations to pay attention to their governing documents. There is a long list of legal cases where an organization’s bylaws of incorporation have been placed under scrutiny – for example Hamstra v B.C. Rugby Union (where the court examined the association’s mandate as expressed in its constitution), this Manitoba case, and also CURIE v. CGU Insurance Company of Canada.
We are currently working with CAAWS, Canadian Association for the Advancement of Women and Sport and Physical Activity, in writing a comprehensive up-date of the law in this area. Look for it to be published soon.
Manitoba High Schools Athletic Association v. Pasternak et al. (2008) MBQB 24.
Originally published: Centre for Sport and Law Newsletter (2008) Vol. 4(1)