What does March Madness have to do with it?

Cue to a female basketball player……..”Genders don’t play sports, athletes do.”

As I listened to this ad while watching NCAA March Madness, I thought, “exactly.” In fact, I remember reading years ago that female and male athletes have more in common with each other than they do with non-athletes of the same gender.

Yet, sport adopted a gender binary as its ordering principle. Why? Who has that served, if anyone?

In her new book of essays, The Mother of All Questions, Rebecca Solnit says, “…all of us live in a culture that is attempting to limit the range of our humanity, and so we’re all in this liberation struggle.”

That’s startlingly aligned with the point I was making last week when I spoke to students at the Law Faculty of the University of Western Ontario on law as an instrument of change in sport. My focus was on the rights of women and athletes, but it morphed into the realization that the binary organizing principle of sport must be questioned.  In response to that process of questioning, I think the binary will fall to a more sophisticated, more relevant system based on weight, height etc – the differences that actually matter.

Let me go back in time a bit……In the early 80’s the opportunities for women in athletics (track and field) did not include any distance longer than 3k – the 5k then replaced the 3, the 10 and the marathon were added, and, finally the steeplechase in 1996. The pole vault, triple jump and hammer were added only in the late 90’s.

It didn’t occur to me in those early days of pushing for opportunities for female athletes, that we needed to think beyond having the same events opportunities as men had.

Its not unreasonable to continue that push, since girls still race shorter distances at OFSAA cross country, the hurdles are lower, the steeple is lower and the distance shorter……..at all times young women receive the message that they can’t do what the young men can do. And, this isn’t actually about physical limitations……tiny grade 9 boys have to hurdle higher than tall senior girls. Women, in fact, have a higher capacity for endurance events, yet girls race shorter distances.

It makes no sense to approach sport this way for males or for females.

But, to keep the integrity of the binary ordering principle intact, we women had to endure gender testing (I have twelve certificates from different sport organizations attesting to my femininity). Gender testing is now defunct, but one can still report a suspicion that a female athlete isn’t actually female and she will be investigated.

Next on the horizon are what sport calls the intersex athletes – women with naturally high levels of testosterone. There are over 200 other genetic advantages that no one tests for (such as high red blood cells, high oxygen uptake), and we don’t test men for high natural T, but the sport world freaks out about ‘real’ women. Female athletes don’t freak out – it’s the decision-makers (who are still mostly men of European background).

So, what to do?

Well, the law hesitates when it comes to sport.

Sport organizations operating at the international level are unaccountable. They elect and appoint their own memberships. At the moment, there are Congressional hearings into the Russian doping system, but the only stick the US has is the LA Olympic bid.

The law hesitates in Canada, too.

Until 1986, when Justine Blainey won the right to play hockey on a boys team, Ontario’s Human Rights Code explicitly carved out sport as a place where gender discrimination was permitted.

When the Charter of Rights was enacted in 1982, section 15, the equality rights section, did not come into force until 1985.

(as a side note, the IAAF just changed its Constitution – the only lag in implementation is the section calling for committees to have 30% female membership)

This is the legal context for women, and, more particularly, for women in sport.

But, we can use the law, too.

In 1990 I was practicing at Goodmans LLP in Toronto, and became pregnant with my first son. The Commonwealth Games, the only big international that year, had been in January in New Zealand. Quite a few female Commonwealth athletes had decided to have children since there were no big competitions that summer.

At the time, I received a stipend from Sport Canada as a top-ranked athlete (top 16 in the world). At about month 5 my stipend didn’t arrive so I called Sport Canada to learn that I’d lost my carding because of my pregnancy.

Get this – Sport Canada’s policy was to cut AAP because “pregnancy is a deliberate attempt to undermine one’s high performance status”. Wow. The cut was 35% for the first pregnancy, 70% for the second and 100% for the third.

Now I happen to believe that if a woman can have two or three children and still be a high performance athlete we ought to clone her, not punish her. But, there it was, I was being punished for reproducing. This wasn’t a sophisticated approach by the way – no one asked if I was coming back, what my training plan was, whether I intended to continue to compete. If I’d been injured or sick and not competing, I’d have kept my full stipend.

So, as a lawyer, I had to push back.

The Supreme Court had decided in 1989 that discrimination on the basis of pregnancy was, in fact, discrimination on the basis of sex (it wasn’t called gender then). This was in R v Shoppers Drug Mart.

I wrote a long case brief to Sport Canada, to which I received no response. (As an aside, the Director General of Sport Canada was Abby Hoffman, who is now Canada’s rep on the IAAF and was famous for disguising herself as a boy so she could play boys’ hockey as a child.)

Then, I filed a human rights complaint against Sport Canada under the Canadian Human Rights Code. I expected very little. I didn’t need the money, because I was practicing, but I was determined to use the law to fight this ridiculously discriminatory policy.

What happened? Well, to get my full stipend back, all I had to do was complete a race. So, I registered for the national indoors three weeks after I was due. Jim Christie, at the Globe saw this and called me – what the heck are you doing planning to race so soon after giving birth? I told him. Next thing I knew, my huge belly and I were on the front page of the Globe, and I was fielding calls from the Minister of Sport. The policy changed. The female athlete can now become pregnant, and return to competition in a healthy way.

Around the same time, we founded the Canadian Athletes Association (now Athletes CAN).

That was prompted by issues of law as well.

When Ben Johnson tested positive I was Vice-Chair of the Athletes Council of the Canadian Olympic Committee. We organized groups of athletes across the country to develop an athlete response to what we knew was a serious doping problem in Canada and internationally. We then wrote a position paper and submitted it to the COC as they prepared for their testimony to the Dubin Commission on Doping in Sport.

The COC ignored us. Their line was that Ben was a ‘bad apple’. They were wrong and we knew it.

So, in the fall of 1992, we founded Athletes CAN (as its now known), after a year of meeting at my kitchen table.

Athletes across the country had decided that we needed an independent voice.

We changed the system with that voice. We started with the legal rights of athletes.

We persuaded Sport Canada to require of NSO’s that there be an athletes council, and athletes on the board and committees as a condition of funding. Another condition of funding that we created was that sports had to have an appeals system to handle selection, eligibility and discipline issues. To support athletes in this, I took on cases, and then we created The Sport Solution at the Western Law Faculty. We got noisy about anti-doping, demanding an independent agency in Canada as a regulator (rather than the old way of the international federation regulating doping in its own sport – the fox guarding the hen house, so to speak). From this initiative grew what is now the Canadian Centre for Ethics in Sport.

These were some of the fundamental changes to the legal infrastructure of Canadian sport that were made possible because we had voice (and we had a receptive listener in Minister Dupuy).

Questions and issues remain:

  1. We haven’t gone all the way yet with equality for men and women in sport — does organizing sport by gender make sense? what if it were organized by power/weight ratio? by measured lung capacity? or by other principles relevant to the particular sport?

  2. With the fluidity of gender now being respected, sport must respond fairly to enable every member of humanity the opportunity to participate fully. This strikes at the heart of social expectations and gender. If an athlete identifying as male learns powerful moves, such as inverts, and then begins to play as a female, does she bring her muscle memory and lack of fear to how she now participates? Are we holding both men and women back by organizing sport by gender? What of women who’ve traditionally been held back from training as hard as men? or who cant have men (any men, not only elite men) in the race if they aspire to the women’s world record, on the assumption that any man is faster than an elite woman.

The power of those who run sport is relatively unchecked – they decide the pace of change, which, quite frankly, is glacial.

These organizations have a membership that is largely divorced from the athlete experience; and the former athletes who join the organizations seem to become more interested in power than in pushing for change.

The fundamental relationship between law and power remains to be fully explored in sport.

Law is both an instrument of change, and serves to mitigate power.

What could sport look like if everyone was truly welcome and accommodated?

Why shouldn’t everyone have the right to compete at the highest levels?

What happens when the rules of sport, the rules of the game, bump up against human rights?

Are there legal approaches to speed the process of adaptation of sport to society’s expectations?