Other cases that have brought the is­sue of gen­der in sport to the fore­front in Canada


Jus­tine Blainey, 1985 The 12-year-old Toronto hockey player suc­cess­fully tried out for a boys’ hockey team, only to dis­cover that the On­tario Hockey As­so­ci­a­tion re­stricted its mem­ber­ship to male play­ers. No prob­lem: On­tario’s Hu­man Rights Code pro­hibits sex dis­crim­i­na­tion, but a sub-clause stated that the code did not ap­ply to fe­male ath­letes, the think­ing at the time be­ing that dif­fer­ences in male and fe­male phys­i­ol­ogy pro­hib­ited mixed sport, and that girls and women needed pro­tec­tion from big­ger, stronger, male ath­letes.

Blainey’s sub­se­quent law­suit ended up in the Supreme Court of Canada, which found that the ex­clu­sion of sport/ gen­der com­plaints from the On­tario Hu­man Rights Code con­tra­vened the Cana­dian Char­ter of Rights and Free­doms. A sig­nif­i­cant mile­stone in hu­man rights law, but it did not put an end to long­stand­ing be­liefs and stereo­types within the spe­cial realm of “sport law.”

Van­cou­ver 2010 Win­ter Olympics A group of women re­quested Van­cou­ver’s Olympic Or­ga­niz­ing Com­mit­tee (VANOC) to in­clude women’s ski jump­ing. The ex­ist­ing Olympic pro­gram only of­fered men’s events. Fol­low­ing me­di­a­tion at the Cana­dian Hu­man Rights Com­mis­sion in 2008, the fed­eral gov­ern­ment and sport min­is­ter an­nounced their sup­port for the ski jumpers’ re­quest, but the next sport min­is­ter claimed that the de­ci­sion was up to the IOC. He was, in fact, cor­rect, and, as some ob­servers pointed out, it was naive to think that the IOC would re­spect Canada’s hu­man rights poli­cies.

In 2009, the group took the case to the Bri­tish Columbia Supreme Court, ar­gu­ing that the Olympic pro­gram that ex­cluded women’s ski jump events vi­o­lated the Char­ter. The judge agreed that VANOC was sub­ject to the Char­ter since it was in­volved in a “gov­ern­men­tal ac­tiv­ity,” but con­cluded that, with the IOC hav­ing ex­clu­sive con­trol over the pro­gram, VANOC it­self had not breached the Char­ter. An ap­peal failed on sim­i­lar grounds, and the Supreme Court of Canada re­fused to hear the case.

Some saw the out­come as a moral vic­tory since the judge had con­firmed that the or­ga­niz­ing com­mit­tee was not a pri­vate body, and that women’s ex­clu­sion was dis­crim­i­na­tory. How­ever, as al­ways, the real moral of the story was that the IOC had the up­per hand: the BC ap­peal court de­fined an Olympic event as a ben­e­fit con­ferred by the IOC, not by the Cana­dian gov­ern­ment.

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