I love stories like this: 17 year old Courtney Greer from Waterloo, Ontario, tries out for the boys’ soccer team, makes the team on her own athletic ability and is then told she is not allowed to play in the league. She then has the guts to publicly fight it and files a claim against the Ontario Federation of School Athletic Associations (OFSAA) at the Human Rights Tribunal. This is teenage courage and bravery at its best.
Given the high likelihood of success at the Tribunal, last week the OFSAA changed its policy to allow girls to try out for the boys’ team, even if there is a girls team available for the girls join.
The executive director of the OFSAA was quoted in an article by Carolyn Alphonso at the Globe and Mail as saying: “We were basically forced into this by the Human Rights Tribunal…We don’t think it’s a good thing, no, because what does it say about girls’ sport?”
I thought this issue was resolved back in 1986 in the Ontario Court of Appeal case of Blainey and Ontario Hockey Association, (1986), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, which held it is discrimination to prohibit a person from playing in a sports league on the basis of gender. In that case, then 12 year old Justine Blainey fought to try out for the boys hockey team.
At the time, the Human Rights Code contained section 19(2) which provided that "the right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex."
Thus, prior to Blainey, while a sports league could not discriminate on the basis of race or religion, for example, it could discriminate on the basis of gender.
The Ontario Court of Appeal in Blainey explained as follows:
Thus, but for s. 19(2), Justine Blainey would have been entitled to the protection of the Human Rights Code and the benefit of the complaint and enforcement procedures therein provided. But s. 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory.
The court concluded that section 19(2) was contrary to section 15(1) of the Canadian Charter of Rights and Freedoms, which says:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
In Canada, the federal Charter trumps provincial legislation, and so, section 19(2) of the Ontario Human Rights Code was held to be unconstitutional and of no force and effect. In other words, since 1986, it has been illegal to prohibit a girl from trying out for a sports team.
Undermines Girls’ Sports?
One of the arguments of the OFSAA was that it may undermine the girls’ sports programs. This was also cited as a concern after Blainey, that we would see a flood of applicants to the boys’ sports leagues, while the girls’ leagues languished with the weak athletes who couldn’t cut the "real" team.
In fact the opposite has occurred: girl’s and women’s sports leagues have sprouted up all over the place in Canada. Hockey, in particular, has increased, leading to all kinds of issues over ice time in our limited number of rinks. While we must surely have the most ice rinks per capita in the world, it is never enough.
Combine hockey issues & human rights, and you have a serious national crisis in Canada.
In Toronto, for example, it was news throughout the winter that the huge increase of girls playing hockey has actually created challenges with ice time in the various hockey rinks around the city. The issue of gender equal ice time hit the front line news several times over the winter, with the City of Toronto taking over one of the rinks until it agreed to distribute time more equally.
Let Skills & Ability Decide
While I am quite sympathetic to concerns about those boys who are displaced because of a more athletic girl (what team do those boys get to play on?), and while I very much value the collegiality and inspiration girls and women can get from playing on a sports team together, I prefer an approach where skill and ability is the deciding factor, not gender.