Case Comment - Pasternak v. Manitoba High School Sports Association (2006)

Most people have now heard about the Pasternak twins, who complained to the Manitoba Human Rights Commission when the Manitoba High School Sports Association (MHSSA) would not let them play on their high school boys’ ice hockey team. The Manitoba Human Rights Tribunal found that the Pasternak girls had been discriminated against on the basis of their sex. Here is that decision: Pasternak vs. MHSSA.

Previous cases have shown us that, had the Pasternaks' school offered no girls team, they would have to be allowed to play on the boys’ team. This case is set apart from previous case law by the fact that there already was 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.

The MHSSA argued that any decision in favour of the Pasternaks would mean the demise of school sport distinguished on the basis of sex, and might even result in breaking down distinctions based on age.

The MHSSA’s case rested on two arguments. First, the rules of MHSSA allowed for exceptions to the rule that girls play on girls’ teams and boys on boys’ teams. Such exceptions could be granted through an appeal process to the Board of Directors. However, the Pasternaks had not pursued an appeal and MHSSA argued that the Tribunal should not hear a human rights complaint until an appeal had been heard. The Tribunal disagreed and stated that recourse to a human rights commission was available at any time.

MHSSA’s second argument was that the high school girls’ team was new and it needed the leadership and skill of the Pasternak twins. There were also other alternatives available to the twins outside of high school, including community teams. The 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.

The MHSSA is currently appealing the decision.

This decision raises important issues. Does it open the door for boys to join girls’ teams? Will it result in the top female athletes being skimmed off female teams, hindering those teams’ development? Will it blur the lines between age categories? Does is dilute the argument for affirmative action programs? In Manitoba, probably not. Section 11 of the Manitoba Human Rights Act allows affirmative action programs, including programs restricted to girls only. This decision does confirm, however, that girls can play on boys' teams if they are at the same skill level.

One last point - while we watch the appeal of this decision unfold it is critical to keep in mind that human rights legislation varies from province to province. This decision may not carry the same weight in Ontario, for example, as Section 20(3) of the Ontario Human Rights Code allows a recreational club to differentiate its services on the basis of a prohibited ground, including sex. However, this exemption would not apply to a high school.

Originally published: Centre for Sport and Law Newsletter (2006) Vol. 2(1)

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