Girls wanting to play on boys' teams.... This human rights issue has cropped up again, several times in fact, in the past short while. This timely column is about what the law actually says about girls trying out for boys' teams and addresses some of the issues that are often raised around the issue - and which deserve serious thought.
In the spring of this year, a high school soccer player named Courtney Greer was prohibited from playing on her school’s boys’ soccer team. The fundamental issue revolved around a rule of the Ontario Federation of School Athletic Associations (OFSAA), which stated that girls could not play on boys’ teams unless there was no girls’ team. Greer filed a complaint with the Ontario Human Rights Commission. In May 2010, OFSSA settled the complaint and changed its rule to allow girls to try out for boys' teams, regardless of whether or not there existed a girls’ team.
A series of cases over a 25-year span, from Blainey v. Ontario Hockey Association to Casselman v. Ontario Soccer Association to Pasternak v. Manitoba High School Athletic Association, makes the law clear: girls may try out for boys’ teams regardless of whether or not there is a girls’ team available, and regardless of the level of skill of the girls’ team. Of course, there are exceptions. For example, issues of safety may dictate that a girl does not play on a particular boys team, or that she play in a particular position on the team (such as punter in football). That said, the law is clear that any restriction must be as minimally intrusive as possible and must be implemented for a legitimate reason.
Discrimination law (that is, human rights law) is a bit schizophrenic. Most often, it is the individual who brings the complaint because what is at issue is a matter of individual rights. In these cases, the person typically bringing the complaint is a girl with superior skill wishing to participate at a level commensurate with her level of skill - which means, in most cases, participating with the boys. On the other hand, there is a general view within the sport community that we should develop opportunities for all girls, which is a matter of group rights. What we end up with is a battle between individual rights and group rights – yet both sets of rights are valid and both deserve consideration.
In these situations, hiving off the top females from the girls’ team (to allow these girls to play at a level consistent with their skills) is often believed to lead to the depletion of female teams and impede the development of opportunities for girls. This was the argument put forward against inclusion of girls in boys programs in both the Blainey and Pasternak cases. However, that fear has not played out. Even though the Blainey case allowed girls to play boys hockey, there was no mass movement of skillful girls over to boys’ teams (nor has there been since Pasternak in 2005). It may well be that it is only a select few girls who want the experience of competing in the male environment. However, while there has not been a mass movement of girls to try out for boys' teams, there is no evidence one way or the other regarding its impact on the development and operation of girls' sport. The issue clearly needs further study and consideration.
Using another line of inquiry, it might be that the real problem lies elsewhere. Everywhere one looks, there is a dearth of women in leadership roles in the sport system. As participants, females are abundant. But there are significantly fewer female coaches than male coaches in Canadian sport, particularly at the elite level. This is not a knock against male coaches coaching female athletes but rather a call for more females to the coaching ranks.
There are also other discrepancies. Male adjudicators vastly outnumber female adjudicators within our dispute resolution system (within the Sport Dispute Resolution Centre of Canada, only six of the 31 arbitrators are female and only four of the 14 mediators are female). Female participation on boards of directors, committees and as officials also lags behind. This is not meant to diminish the work of men but to encourage more role models for girls.
Opportunities for participation have certainly increased through explicit policies, such as those of the IOC in adding sports to the Olympic program. Today both male and female disciplines must be added simultaneously. However, we are reminded of the female ski jumpers' case (Sagen v. Vancouver Organizing Committee for the Olympic Games) in which the court found that the source of the discrimination was rooted in the historical practice of limiting women's overall participation in the Olympic Games. In 1949, the IOC introduced selection criteria for determining which sports would be added to the Games program. At the same time, those sports already in the program were 'grandfathered'. Thus, men’s ski jumping has never been subjected to the analysis of whether it should be in the Games – and if it were, just like women’s ski jumping, it would not pass the test.
Historical discrimination is a very pervasive issue. It manifests as a constant exercise of 'catch-up' for female sport. The case of Morrison v. City of Coquitlam is an example of historic and systemic discrimination. In this case, municipal subsidies and property tax breaks disproportionately favoured facilities accommodating mainly male sports over facilities mainly female sports. Another example is Beacon Hill Little League Major Girls Softball Team v. Little League Canada, where traveling budgets for the boys’ and girls’ championships teams were disproportionately and discriminatorily allocated.
In conclusion, it seems we need to address both areas of concern – individual participation, as well as the management and operational aspects of sport. The latter is more about 'group rights', and that is where, in my opinion, we need to see more effort and activism.
Originally published: Coaches Plan (2010) Vol. 17(2)