ARTICLE

A pragmatic solution for gender equity in Canadian elite sport

Madeleine Williams

Published online: 11 April 2013

� T.M.C. Asser Instituut 2013

Abstract Traditional anti-discrimination measures have

failed to correct gender bias in elite sport in Canada. There

are more opportunities for male athletes to be named to

national teams or receive Sport Canada funding. Devel-

oping female athletes see fewer opportunities to advance to

the elite level and are thus more likely than their male

counterparts to drop out of sport before they achieve their

potential. Elite sport plays an important role in Canadian

society, so the current inequities must be addressed to bring

the elite sport system in line with Canadian values. Gender

equity in elite sport should be substantively defined as the

existence of equal opportunities to advance. Proportional-

ity, modeled on the US Constitutional Title IX equity

requirements, is the most pragmatic way to give effect to

this definition of equity. This solution requires propor-

tional, equitably funded men’s and women’s teams for all

sports that field athletes of both sexes. The solution will

also require ending the current practice of comparing men

and women in selection and funding decisions. Enforce-

ment will require forum access, which can be achieved

through three connected components, each of which

addresses a different, necessary aspect of enforcement. The

Sport Canada Dispute Resolution Centre can ensure that

proportional criteria are properly implemented. The

Canadian Human Rights Commission can hear challenges

to selection criteria themselves. Finally, Charter litigation,

based on the Section 15 equality guarantees, can address

the systemic issues that arise as a result of inequitable

resource allocation.

Keywords Gender equity � Elite sport policy � Equity in

sport � Sport administration

1 Introduction

Inequitable treatment continues to plague elite female

athletes in Canada. Statutory equity measures, which are

primarily the Canadian Charter of Rights and Freedoms,

the Canadian Human Rights Act and Provincial Human

Rights Codes, have failed to correct the gender bias that

exists in elite sport. Canadian elite athletes are entitled to

expect the legal system to uphold their right to equality,

which it currently does not. For example, a Charter dis-

crimination suit by female ski jumpers against the Van-

couver Olympic Organizing Committee (Vanoc) failed

because the decision not to hold ski jumping events for

women at the Games was not law in the sense required

under Section 15.1 It was public pressure, rather than the

law, that resulted in the planned inclusion of ski jumping

events for women in the 2014 Olympic Games.2 Legal

reform is necessary to bring the elite sport system in line

with Canadian gender equity norms.

Gender equity in funding for elite amateur athletes poses

a particular problem. Elite female athletes are not

employees of their National Sport Organization or of Sport

M. Williams (&)

BA, 2010 Olympian, McGill University Faculty of Law

(B.C.L/LL.B Candidate)

Faculty of Law, McGill University, 3644 Peel Street,

Montreal, QC H3A 1W9, Canada

e-mail: Madeleine.williams@mail.mcgill.ca

1 Sagen v. Vancouver Organizing Committee for the 2010 Olympicand Paralympic Winter Games, 2009 BCCA 522, [2009] BCJ no

2293 [Sagen CA].2 David Ebner, ‘‘Female canoe racer takes Olympic inequality to

court’’, The Globe and Mail (19 July, 2012) S1 [Ebner].

123

Int Sports Law J (2013) 13:18–34

DOI 10.1007/s40318-013-0015-3

Canada, nor are they seeking the right to merely participate

in their sport. Gender inequities with respect to the avail-

ability of government financial support for living expenses

are allowed to go unchecked because they do not fall

within a recognized forum for challenging discriminatory

practices. Further, funding decisions are generally not

discriminatory in a sense that is easily recognized because

they do not stem from an apparent intention to exclude

women.3 Rather, unacknowledged bias favors men in

sports where there is competition for resources between

men’s and women’s teams. Bias gives rise to inequitable

resource distribution, especially where women are directly

compared to men in selection processes, despite competing

in distinct events.

I propose a pragmatic structural solution for the Cana-

dian elite sport system that avoids detrimentally comparing

male and female athletic performances in the allocation of

elite opportunities. This solution requires gender propor-

tionality between the population of athletes from which

elite selections are made, and national team opportunities

and Cards allocated.

The proportionality solution requires statutory modifi-

cation and a doctrinal shift in order to be enforced. Under the

current system, no forum is available to challenge team

selection or funding criteria once they have been approved

by Sport Canada. The currently active Sport Dispute Reso-

lution Centre is best placed to continue to enforce the proper

application of selection criteria. The Canadian Physical

Activity and Sport Act should be amended to allow chal-

lenges to team and funding criteria themselves to be heard by

the Canadian Human Rights Commission under employ-

ment equity standards. There are also compelling reasons to

extend the Canadian Charter of Rights and Freedoms’ scope

of applicability by amending the state actor and Section 15

‘‘law’’ doctrines.4 The state actor doctrine should be exten-

ded to include private actors who implement government

programs by contract, regardless of the degree to which

those actors and their decisions are controlled by govern-

ment. The definition of law for the purpose of Section 15

should include the policies these actors use to implement

government programs. This expansion will allow Charter

litigation to address the systemic impacts of gender inequity

in our Canadian elite sport system.

In part one, I begin by examining why gender equity in

elite sport is of crucial importance. This examination allows

me to substantively define gender equity in the elite athletics

context. I then discuss how this equitable ideal can be most

pragmatically achieved and enforced in parts two and three.

2 Gender equity in the elite sport context

2.1 Gender equity in elite sport is crucial

2.1.1 Benefits of sport

Sport is an integral part of Canadian society because it

benefits health, social cohesion, linguistic duality, eco-

nomic activity, cultural diversity and quality of life,

according to the preamble of the Canadian Physical

Activity and Sport Act.5 Research has shown, for example,

that boxing helps young women to develop discipline, self-

confidence and fitness while giving their lives a positive

direction.6 The Canadian Sport Policy clarifies that elite

sport is particularly important culturally because athletic

excellence is a source of community pride that inspires

everyone to strive for personal achievement.7 The benefits

of sport for elite athletes can also include career opportu-

nities and fame.8

The cultural importance of gender equity in sport is

further reinforced by the stance of the International

Olympic Committee (IOC). The IOC supports the promo-

tion of women in sport at all levels to improve social

equality between men and women.9 According to the

Olympic Charter, which serves as the statutes of the IOC,

‘‘Olympism is a philosophy of life which places sport at the

service of humankind.’’10 The fundamental principles of

Olympism include the preservation of human dignity that

the practice of sport without discrimination is a human

right, and that sport organizations are independent decision

makers.11 Any form of discrimination is incompatible with

the Olympic movement.12

3 C.f. Linda Hamilton Krieger, ‘‘The Content of our Categories: A

Cognitive Bias Approach to Discrimination and Equal Employment

Opportunity’’, in Libby S Adler et al., eds, Women and the Law (New

York: Foundation Press, 2008) 600 at 601 [Hamilton Krieger].4 Canadian Charter of Rights and Freedoms, Part I of the Consti-tution Act, 1982, being schedule B to the Canada Act 1982 (UK),

1982, c 11, ss 15, 32 [Charter].

5 Canadian Physical Activity and Sport Act, SC 2003, c 2 at

Preamble [Sport Act].6 Yvonne Lafferty and Jim McKay, ‘‘Suffragettes in Satin Shorts?

Gender and Competitive Boxing’’ (2004) 27:3 Qualitative Sociology

249 at 271 [Lafferty].7 Canada, Federal and Provincial Ministers for Sport, Recreation and

Physical Activity, Canadian Sport Policy, May 24, 2002, online:

Sport Research Intelligence Sportive http://sirc.ca/CSPRenewal.cfm

at 14 [Sport Policy 2002].8 Gertrude Pfister, ‘‘Gender Equality and Elite Sport’’ (Paper

delivered at the Enlarged partial agreement on sport, Strasbourg, 28

November 2011), EPAS (2011) INF 25 at 2 [Pfister].9 International Olympic Committee, Olympic Charter. (Lausanne:

International Olympic Committee 2011) Online: International Olym-

pic Committee http://www.olympic.org at 14.10 Ibid at 10.11 Ibid.12 Ibid at 11.

Int Sports Law J (2013) 13:18–34 19

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2.1.2 Sport and gender roles

Because gender representations in sport reproduce the

gender constructions of society, gender equality in sport is

of crucial significance.13 Femininity and masculinity are

often mistaken to be innate qualities when in fact they are

socially constructed.14 Sport has an important impact on

public opinion, perceptions, evaluations and constructions

of gender in society.15 Historically, participation in sport

has influenced dominant ideas about what is or is not

appropriate behavior for women.16 Gender remains a focal

point of many decisions taken in sport.17 For example,

women have been excluded from ski jumping, but it is also

one of the few sports where women’s abilities are com-

parable to men’s.18 In that sport, it is easy to see the threat

to male domination posed by the inclusion of women.19

Sanctioned sex discrimination in publicly funded exercises,

like elite sport and the Olympics, reinforces and perpetu-

ates traditional discriminatory messages about women,

athletics and social citizenship.20 Female athletes inter-

nalize these negative gender constructions.21

The gendered power structure embedded in sport means

that women have fewer opportunities to develop.22 Ste-

reotyping, lack of support, difficulty of life-work-sport

integration, inadequate media coverage, a lack of women

on sports’ ruling bodies and limited funding continue to

plague women’s sport.23 Maintaining these differences

makes it easier to see women as secondary and deserving

of fewer resources.24 In both college and professional

sports, women have access to less funding, meaning they

have less incentive to improve and less incentive to par-

ticipate.25 The problem is further complicated by the

regulation of the sport system through a paternalistic legal

system.26 Thus, in the competition for resources, even

where women are not excluded, the majority and the best

resources tend to be allocated to male athletes.27

2.1.3 The impacts of inequity

The shortage of women at the elite level of sport results in

high drop-out rates among developing female athletes as

well as a lack of female coaches and administrators.28

When young athletes perceive that their opportunities to

advance to the elite level are limited, they leave sport to

pursue other goals. Frustrated female athletes often leave

the sport community altogether.29 It is argued in the

employment context that women have different interests

that lead them to choose different work or life options, thus

the disproportion of men and women in a given area is due

to personal choices and not to discrimination.30 The

counter argument, and this certainly applies in the elite

sport context, is that what appear to be choices made by

women are in fact reflections of the opportunities available

to them.31

To achieve greater participation among women, and the

benefits the Sport Act promotes, more female athlete role

models are needed.32 This is demonstrated by the fact that

there tends to be a spike in female sport participation fol-

lowing each Olympic Games, where role models are

plentiful and visible.33 This increase occurs despite the fact

that women’s performances continue to be judged

according to male standards and men’s events continue to

be scheduled for higher visibility, better practice times and

better facilities.34 If women cannot expect funding and

publicity, it is difficult for them to achieve elite, role model

status. Thus, the status quo continues.3513 See Pfister, supra note 8.14 See Christy Halbert, ‘‘Tough Enough and Woman Enough:

Stereotypes, Discrimination and Impression Management Among

Women Professional Boxers’’ (1997) 21 J Sport and Social Issues 7 at

22 [Halbert].15 See Pfister, supra note 8.16 Marjolein Van den Brink, Titia Loenen & Jet Tigchelaar, ‘‘Sex

segregation and equality in a multicultural society: inferiority as a

standard for legal acceptability’’ (2010) 6 Utrecht L Rev 115 at 127

[Van den Brink].17 See Halbert, supra note 14 at 16.18 Margot Young, ‘‘The IOC Made Me Do it: Women’s Ski Jumping,

VANOC, and the 2010 Winter Olympics’’ (2009) 18 Const F 95 at

100 [Young].19 Ibid.20 Ibid at 95.21 See Halbert, supra note 14 at 26.22 See generally Lafferty, supra note 6 at 251, 266.23 Pfister, supra note 8.24 See e.g. Ariel Levy, ‘‘A ring of one’s own: can a teen-age Olympic

hopeful remake the image of women’s boxing?’’ The New Yorker88:12 (7 May 2012) 38 at 43.

25 Womens’ Sports Foundation, Pay Inequity in Athletics (March

2007), online: Women’s Sport Foundation www.womenssport

foundation.org.26 See generally Lafferty, supra note 6 at 253.27 Ibid at 260.28 Allison Huggins & Shirley Randell, ‘‘The Contribution of Sports

to Gender Equality and Women’s Empowerment’’ (Paper delivered at

the International Conference on Gender Equity on Sports for Social

Change, Kigali, 2007), [unpublished] online: International Federation

of University Women www.ifuw.org/rwanda/media/women_sports.

pdf at 8 [Huggins and Randall].29 Ibid.30 Libby S Adler et al., Women and the Law (New York: Foundation

Press, 2008) at 536.31 See Ibid.32 See Huggins and Randall, supra note 28 at 5.33 Ibid.34 Ibid at 6.35 Ibid at 5.

20 Int Sports Law J (2013) 13:18–34

123

Exempting elite sport from anti-discrimination provi-

sions is counter to government objectives for supporting it.

However, some differentiation between the sexes may be

valid due to actual differences in the makeup of male and

female competitions and athletes in a given sport. A par-

allel can be drawn between the US Constitutional Title VII

‘‘Ministerial Exemption,’’ which exempts religious orga-

nizations from certain employment equity provisions and

the unique situation of elite sport.36 Because each sport

exists under a distinct set of conditions, a great deal of

independence needs to be allowed to NSOs in order for

them to effectively govern their sports. But, if neutral laws

of general applicability, as which the Charter or Human

Rights Codes must be construed, can be applied to religious

practice to prevent discrimination under Title VII, allowing

discrimination by NSOs in sport simply does not follow.37

Gender equity in elite sport needs to be substantively

defined before a useful standard can be implemented to

ensure it.

2.2 Defining equity in elite sport

A substantive definition of equity will be a standard

towards which the Canadian elite sport system can strive,

and against which outcomes can be measured. Such a

definition will also permit the evaluation of the statutory

framework to ensure that gender equity is encouraged,

thereby reflecting our society’s equality value in the sport

system.

Finding discrimination without a standard specific to

elite sport is difficult. The lack of a substantive equity

standard in elite sport means not only that there is no forum

but also no clear basis on which to challenge biased or

discriminatory criteria. Canadian discrimination law is

premised on the idea that human dignity is harmed by

unfair treatment based upon personal traits or circum-

stances which do not relate to individual needs, capacities

or merits.38 The problems arising in the elite sport context

certainly fall within this definition. The unfair treatment

necessary to find discrimination is difficult to locate in the

elite sport setting where decisions tend to appear strictly

merit-based. However, unfairness exists where male and

female athletes are compared to each other in resource

allocation decisions, despite the fact that they compete in

separate events that are often very different from one

another.

Traditional models often fail to identify discrimination

in a well intentioned but biased decision-maker or deci-

sion-making process.39 This bias can have a large impact

on the selection process for elite opportunities. Assuming

decision-makers have full insight into their biases goes

against social science evidence on cognitive bias, which

shows that while decisions do result from bias, these are

often not conscious motivations.40 It is practically impos-

sible to distinguish the impacts of conscious motivations

from bias, so our motivational attributions will always be

subjective.41

Unstructured evaluation processes lacking in specific

criteria, like the subjective selection criteria found in many

sports, are more likely to lead to decisions that are tainted

by the cognitive biases of decision makers.42 For example,

Speed Skating Canada’s most recently published criteria

lists ‘‘absolute discretion’’ as grounds for nomination to

national teams.43 Further, discriminatory biases tend to

influence decisions taken where reasons for a decision are

not required to be fully articulated or decisions are required

to be taken too quickly.44 Selection processes that differ-

entiate or focus on gender, race or age are also more likely

to stereotype and interpret events in a personal, destructive

manner.45 These elements together form the pretext model

of discrimination, which is characterized by a lack of overt

intention to discriminate.46 The pretext model of discrim-

ination describes reality in elite sport, where decisions are

often subjective or discretionary and made under time

pressure.

In elite sport, the impact that bias has on decision-

making can be lowered by giving effect to a substantive

definition of gender equity. To mitigate the pretext model

of discrimination, the interplay between organizational

structures and discrimination must be recognized.47 The

idea of what constitutes discrimination must also shift

away from the overtly biased decision-maker.48 This can

be accomplished through the implementation of a statutory

equity model for the allocation of elite participation

opportunities and Carding funds.

36 See generally Caroline Mala Corbin, ‘‘Above the Law? The

Constitutionality of the Ministerial Exemption from Antidiscrimina-

tion Law’’ (2006) 75 Fordham L Rev 1965 at 1965.37 C.f. Ibid at 1971.38 Sagen v. Vancouver Organizing Committee for the 2010 Olympicand Paralympic Winter Games, 2009 BCSC 942 at para 97, [2009]

BCJ No 1393 [Sagen SC].

39 Hamilton Krieger, supra note 3.40 Ibid.41 Ibid.42 See Tristin K. Green, ‘‘Discrimination in Workplace Dynamics:

Toward a Structural Account of Disparate Treatment Theory’’ (2008)

in Adler, supra note 30, 594 at 594 [Green].43 Speed Skating Canada, High Performance Bulletin # 164 – LongTrack, online: Speed Skating Canada http://www.speedskating.ca at

4.44 Green, supra note 42.45 Ibid.46 Ibid.47 Ibid.48 Ibid.

Int Sports Law J (2013) 13:18–34 21

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Equity in elite sport does not necessarily mean equal

participant numbers or equal recognition for men’s and

women’s sports.49 In Canada, anti-discrimination law has

evolved to require substantive rather than formal equal-

ity.50 Non-discrimination does not always entail a refusal

to distinguish between the sexes if distinguishing serves to

remedy and enhance the position of the subordinated

group.51 Further, gender-neutral policies may still infringe

on equality, depending on the policy’s impact on the sub-

ordination of the group in question.52

With the intersection of gender, social class and eth-

nicity impacting opportunities in sport, the most pragmatic

definition of equity comes in demanding equal chances for

both sexes.53 Gender equity in Canadian collegiate sport,

for example, is defined as treatment that is just and fair.54

Equality is defined as allowing all persons to enjoy the

same status, equal conditions for realizing their full rights

and potential, and to benefit from the results.55 If aspiring

elite athletes of either sex can expect the same opportuni-

ties to be available to them, their treatment will be just and

fair. Thus, gender equity in elite sport should be substan-

tively defined as the availability of equal opportunities to

advance.

2.3 State of affairs in Canada

Women continue to be underrepresented as athletes and

leaders in Canadian sport because of the inequitable

availability of opportunities in elite sport.56 One of the

major goals of the 2002 Sport Policy was to increase access

and equity for under-represented groups in sport.57 The

new Sport Policy, published in 2012, re-states these

objectives.58 Somewhat disturbingly, however, the new

policy lacks any language concerning the advancement of

women in sport, something its predecessor explicitly stated

as an objective.59

The main components in the infrastructure and funding

of sport are the civic and public sectors.60 Public subsidies

support sport because it has the benefits discussed previ-

ously.61 Sport federations and governments develop elite

sport systems to identify, select, train and fund athletes.62

Sport schools and elite development centres aggregate

athletes who are, at a certain performance level, funded to

train full time.63 Schools and clubs promote sport at the

local and regional level and develop athletes in the early

stages.64

2.3.1 Elite sport participation

Women are still a minority in participant numbers in elite

athletics.65 Sport federations set the conditions of partici-

pation and decide how to present their social–political

agenda.66 These federations are voluntary, largely inde-

pendent and treated as private.67 They can decide how to

prioritize men’s and women’s sports.68 The result is that

bias continues to plague female elite athletes.

Sport is, in reality, anything but a private affair, although

the ideology justifying a lack of government intervention in

gender equity in sport stems from the view that sport is

essentially private.69 History disagrees with this viewpoint.

Examples of sport used as a political tool or as a tool of social

control are myriad. The distribution of bread at the Roman

circus was a method of quelling popular uprisings. More

recent is the example of propaganda by the Nazis at the

Munich Olympics in 1936. Further, Olympic boycotts have

been used several times as a tool of political expression.

Despite the court loss in Sagen, media attention and popular

opinion following this case sided with the female jumpers

and ultimately resulted in the inclusion of women’s ski

jumping in the upcoming 2014 games.70 Sport and its

impacts exist very much in the public domain.

The Sagen case mentioned above is an example of how

discrimination in participation continues to arise in Can-

ada. In 2006, the IOC dropped its explicit criteria for sport

inclusion in the Olympic Games but it continues to apply

49 See generally Pfister, supra note 8 at 4.50 Law v Canada (Minister of Employment and Immigration), [1999]

1 SCR 497 at para 88, [1999] SCJ no. 12.51 Van den Brink, supra note 16 at 117.52 Ibid at 118.53 See generally Pfister, supra note 8 at 4.54 Peter Donnelly, Bruce Kidd & Mark Norman ‘‘Gender Equity in

Canadian Interuniversity Sport: a Biannual Report’’ CSPS Gender

Equity Report #1 (2011), Online: University of Toronto Centre for

Sport Policy Studies http://www.sportpolicystudies.ca at 10

[Donnelly].55 Ibid.56 See Sport Policy 2002, supra note 7 at 8.57 Ibid at 16.58 Canada, Federal and Provincial Ministers for Sport, Recreation

and Physical Activity, Canadian Sport Policy, June 27, 2012, online:

Sport Research Intelligence Sportive http://sirc.ca/CSPRenewal.cfm

at 4,17 [Sport Policy 2012].

59 Sport Policy 2002, supra note 7 at 8.60 C.f. Pfister, supra note 8 (Canada’s sport system is similarly

structured to the European system, at 6).61 See Ibid at 7.62 C.f. Ibid at 8.63 C.f. Ibid.64 C.f. Ibid.65 See Ibid.66 Ibid at 9.67 See Ibid.68 Ibid.69 Young, supra note 18 at 102.70 Ibid at 101–102.

22 Int Sports Law J (2013) 13:18–34

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them in practice.71 Rule 47, Section 3.3, states that events

considered for inclusion are those practiced by men in a

minimum of 50 countries on three continents, and by

women in a minimum of 35 countries on three continents.72

The BC Supreme Court did not find this criterion itself to

be discriminatory, given that the ‘‘universality’’ threshold

is lower for women’s sports.73 What is discriminatory is

the IOC’s application of their criteria when neither men’s

nor women’s ski jumping met the universality criteria, yet

the men’s discipline was grandfathered into the Games

based on its historic inclusion.74 Known as the ‘‘Olympic

Tradition’’ exception, this practice gives men’s sports an

advantage.75

Another example can be found in Canadian university

athletics. In its report on the state of gender equity in

university athletics, governed by Canadian Interuniversity

Sport (CIS), the Centre for Sport Policy Studies at the

University of Toronto draws attention to the fact that ath-

letics is the only formally segregated department in edu-

cation, which gives it a special responsibility to uphold

gender equity standards.76 The CIS does have a gender

equity policy, but it does not include objective criteria for

measuring equity.77 In examining the results of this policy,

the report focuses on the ratio of available participation

opportunities for each sex to the student population at

large.78 There are 2.9 opportunities per 100 male students,

while there are only 1.8 opportunities available per 100

female students.79 Football makes up a large number of the

opportunities available to men but even with football

removed, men still enjoy 50 % of the opportunities avail-

able while only making up 44 % of the national student

population.80

2.3.2 Elite funding and carding

The problem in elite sport funding allocation is not nec-

essarily a lack of opportunity to participate but rather bias

in the distribution of available support resources. Because

any small advantage can have a large impact on interna-

tional results, the resources provided to high performance

athletes are crucial to improving international rankings.81

In order to enhance excellence, access to financial support

for coaching, sport science and development opportunities

is crucial.82

Disproportion in the availability of support perpetuates

the situation given as justification for providing less sup-

port in the first place.83 In Sagen, the Court placed sig-

nificant weight on the evidence of discrimination in

financial support and training opportunities.84 This evi-

dence showed lower levels of funding and support, and

fewer training opportunities for female ski jumpers, which

made development to the world-class level nearly impos-

sible.85 Inadequate support is not something that can be

overcome by athleticism, perseverance and dedication.86

2.3.3 The sport Canada AAP carding system

Under the Sport Canada Athlete Assistance Program

(known as Carding), high performance athletes receive

financial support directly from Sport Canada.87 Sport

Canada is responsible for allocating Cards to each National

Sport Organization (NSO) based on athletes’ international

performances for the previous year.88 The NSOs write

sport-specific criteria, which must be approved by Sport

Canada, then nominate athletes for Carding based on these

criteria.89

The Sport Canada AAP Policy is silent on the issue of

gender equity, stating only that the program must be

accessible to the majority of the best athletes in Canada.90

An appeal of Sport Canada’s decision to award Carding is

not a review of an NSO’s published carding criteria.91

Decisions made by an NSO about who to nominate for

Carding may be appealed to the NSO.92 No mention is

made of the ability to challenge published criteria

themselves.

71 Sagen SC, supra note 38 at para 81.72 Ibid.73 Ibid at para 99.74 Ibid at paras 86, 99.75 Ibid at para 90.76 Donnelly, supra note 54 at 9.77 Ibid.78 Ibid at 4.79 Ibid at 5.80 Ibid at 17.81 Sport Policy 2002, supra note 7 at 10.

82 Ibid at 17.83 See Sagen SC, supra note 38 at para 95.84 Ibid at para 94.85 Young, supra note 18 at 101.86 Sagen SC, supra note 38 at para 95.87 Athletics Canada, 2012–2013 Athletic Assistance Program (AAP)Policy – Olympic Stream, online: Athletics Canada http://www

.athletics.ca, s 1 [Athletics Canada AAP].88 Canada, Canadian Heritage, Sport Canada Athlete AssistanceProgram: Policies, Procedures and Guidelines (Ottawa: Public

Works and Government Services Canada, 2012), online: Canadian

Heritage http://www.pch.gc.ca/pgm/sc, s 4.2.1 [Sport Canada AAP].89 Ibid, s 3.1.90 Ibid, s 5.6.91 Ibid, s 13.1.92 Ibid.

Int Sports Law J (2013) 13:18–34 23

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2.3.4 Selection criteria in action

NSOs that represent both genders tend to distribute Cards

unequally between the sexes. This distribution favors men.

This inequality is inequitable where Card allocation is not

proportional to the representation of each sex in a given

elite sport because this means that the sexes do not have

equal opportunities to be funded.

Examples of the types of criteria that NSOs use are the

most recently published Carding criteria of Athletics

Canada, Gymnastics Canada and Cross Country Canada.

Both Athletics Canada and Cross Country Canada apply

gender-neutral criteria, while Gymnastics Canada operates

separate national team programs for men and women with

distinct criteria for each sex. In all sports, the criteria for

what are known as ‘‘International Cards’’ are set by Sport

Canada and tend to be based on rankings in World

Championships or Olympics Games.93 The criteria exam-

ined below pertain to the allocation of the remaining

‘‘Senior Cards’’.

Athletics Canada’s Carding criteria is gender neutral in

the sense that athletes of both genders are ranked together

in the selection process. From a general Carding pool, a list

of athletes is created through a prioritized ranking system,

based on objective time and age standards.94 The outcome

of this approach over the last 5 years is that an average of

24.9 women and 31.7 men are Senior Carded each year.95

There are 1.27 opportunities for men to be Carded per one

opportunity available to women. The availability of Card-

ing opportunities is inequitable when compared to the field

of athletes competing at the most recent national champi-

onships, where there were 279 women and 282 men in the

open divisions.96 This equates to just 1.01 male competi-

tors for every female competitor. There is a 26 % gender

disproportionality between Carding opportunities and the

field of competitors who hope to earn those opportunities.

Cross Country Canada also ranks men and women

together in a gender-neutral list for selection purposes. In

cross-country skiing, however, the difficulty of comparing

male and female athletes is amplified because objective

time standards cannot be set. Senior Cards are allocated to

members of the national ski team only, so that selection

criteria act as gatekeepers to the Carding criteria.97 This is

problematic from a gender equity perspective. The

outcome is that, over the last 5 years, on average, 4.3

women are named to the senior national team and receive

Senior Cards each year. On average, 8.7 men are named

each year.98 This equates to an average of 2.02 senior

national team and Senior Carding opportunities being

available to men for each one opportunity available to

women. This is inequitable when compared to participant

numbers in the open categories at the most recent national

championships, where there were 84 male and 75 female

competitors in the aggregate standings.99 There are only

1.12 male competitors for every one female competitor in

the categories from which Carding and national team

selections are made. The result is a 90 % gender dispro-

portionality between national team and Senior Carding

opportunities, and the field of national-level competitors.

Gymnastics Canada operates distinct men’s and

women’s national team and Carding programs. Unlike the

previous two examples, Sport Canada allocates Cards

separately to the men’s and women’s teams based on

international performance.100 Athletes nominated for cards

in either program must commit to the National Team

program of preparation and competition rather than the

inverse, as with Cross Country Canada.101 Gymnastics

operates the most equitable selection process of those

examined. There were 10 women and 14 men Carded in

2012, which equates to 1.4 opportunities available to men

for every one available to women.102 At the most recent

national championships, there were 21 senior women and

28 senior men, which equates to 1.33 male competitors for

each female.103 Even in this sport that traditionally accepts

female athletes, Carding opportunities favor men. How-

ever, there is only a 7 % gender discrepancy between the

availability of elite funding opportunities and the number

of athletes hoping to earn those opportunities.

Some sports, like athletics, can more easily compare

men’s and women’s performances because objective

international time standards are available. Where such

standards are not available, however, the comparison of

93 Sport Canada AAP, supra note 88, s 5.2.1.94 Athletics Canada AAP, supra note 87, s 5.5.95 Athletics Canada, Results Archive, online: Athletics Canada

http://www.athletics.ca.96 Ibid.97 Cross Country Canada, Athlete Assistance Program CardingCriteria 2012–2013, online: Cross Country Canada http://www.

cccski.com, s 5.2 [Cross Country Canada AAP].

98 Cross Country Canada, CPL Points Database, online: Cross

Country Canada http://www.

cccski.com [Cross Country Canada].99 Ibid.100 Gymnastics Canada, Women’s Artistic Gymnastics: Sport CanadaAthlete Assistance Program Carding Process – July 1, 2012- June 30,2013, online: Gymnastics Canada http://www.gymcan.org, s 1

[Women’s Gymnastics AAP]; Gymnastics Canada, Men’s NationalTeam Carding Criteria: for Nominations for the 2012–2013 CardingCycle, online: Gymnastics Canada http://www.gymcan.org, s 1

[Men’s Gymnastics AAP].101 See Men’s Gymnastics AAP Ibid, s 6.102 Gymnastics Canada, Results Archive, online: Gymnastics Canada

http://www.gymcan.org.103 Ibid.

24 Int Sports Law J (2013) 13:18–34

123

Gymnastics Canada’s criteria with Cross Country Canada’s

criteria shows a vast difference in strategies.

Gymnastics Canada’s separation of team and Carding

selection by sex leads to more equitable outcomes. With

separate teams, Sport Canada can allocate Cards to each

sex based on the merit of that sex’s international perfor-

mance. This will result in increased funding opportunities

as performance improves. It does not, however, respond to

the issue of ensuring equitable opportunities for athletes to

develop from the national level to the international elite. To

fully address this issue across all sports, regulatory reform

is required.

3 Fixing the system

To give effect to the definition of gender equity in elite

sport in Canada, a substantive standard needs to be adopted

that will create equal opportunities to advance. A model

that requires the proportional allocation of resources to

both sexes is pragmatic because it can be implemented

quickly within the current Canadian elite sport framework.

A proportionality model for gender equity has been

implemented to great effect in American intercollegiate

sport, governed by the National Collegiate Athletic Asso-

ciation (NCAA).

3.1 Title IX in the NCAA as a model

The US constitutional Title IX requires educational insti-

tutions to fund male and female athletics equitably.104 In

the United States, unlike in Canada, educational institu-

tions are the main providers of infrastructure and funding

for high-level sport.105 Similar statutory provisions could,

however, mandate proportional opportunities for athletes of

both sexes in Canadian elite sport.

Title IX measures equity in participation, scholarships,

and benefits.106 The provision states that ‘‘No person in the

United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program of activity

receiving federal financial assistance.’’107 This provision is

applied based on the following test: ‘‘An athletics program

can be considered gender equitable when the participants in

both men’s and women’s sports program would accept as

fair and equitable the overall program of the other

gender.’’108

3.1.1 Initial resistance and the perception of affirmative

action

At its inception, there was resistance to the application of

Title IX out of fear that it would negatively impact men’s

college sports.109 While the theory of equality behind Title

IX is relatively uncontroversial, there has been significant

controversy around how best to go about eliminating dis-

crimination.110 A similar reaction can be expected to a

proportionality standard in Canadian elite sport.

Canadian sport administrators and male athletes are

likely to see this standard as requiring the preferential

treatment of female athletes, as American athletic depart-

ments did. However, US courts have found that Title IX is

not an affirmative action statute, as many tried to claim,

because it does not prefer either sex, but rather it can

require what appears to be unbalanced action to rectify a

situation of discrimination.111 Claims of reverse discrimi-

nation by male athletes have not succeeded.112

Regardless, resistance from athletics departments con-

tinued, and several attempts to argue that they did not

receive direct federal funding and thus were not subject to

Title IX were successful in the courts.113 As a result,

Congress passed the Civil Rights Restoration Act in 1988 to

legislate the fact that programs sponsored by educational

institutions that receive federal funding are subject to Title

IX.114 In response to concerns over the application of the

vague provisions of Title IX, the Office of Civil Rights

created a three-part test to guide determinations of dis-

crimination.115 This test considers financial assistance,

program elements and the provision of equal opportunities,

and requires that institutions pass one or more of these

three elements.116

3.1.2 The Title IX test and its outcomes

To be considered equitable, the distribution of financial aid

in a program must award ‘‘substantially proportionate’’

104 Pfister, supra note 8 at 6.105 Ibid at 9.106 Janet Judge & Timothy O’Brian. Equity and Title IX inIntercollegiate Athletics A Practical Guide for Colleges and Univer-sities — 2011, ed by Karen Morrison, online: NCAA Gender Equity

Task Force http://www.NCAA.org/gender_equity at 13 [Judge].107 Ibid at i.

108 Ibid.109 Ellen Staurowsky, ‘‘Title IX in its third Decade: The Commission

on Opportunity in Athletics’’ (2003) 2 ESLJ 70 at 73 [Staurowsky].110 Ibid at 71.111 Ibid at 77.112 Ibid.113 Ibid at 75.114 Ibid.115 Ibid at 74.116 Ibid.

Int Sports Law J (2013) 13:18–34 25

123

dollars to male and female athletes.117 The legal test of

compliance is a comparison between the percentage of

athletic funding awarded to men and women, and the

percentage of male and female athletes participating in the

school’s intercollegiate programs.118 If the disparity in

scholarship dollars awarded is more than 1 %, a strong

presumption that the institution has violated the substantial

proportionality requirement is created.119 This is a rebut-

table presumption if the institution can show non-dis-

criminatory reasons to explain the difference.120 This

comparison applies to athletic programs at an institution as

a whole: benefits can be unequal in one area so long as the

distribution is equitable overall.121 This seems problematic

because it could lead to funneling of funding for female

athletes into certain ‘‘acceptable’’ sports. Unfortunately,

there is no case law on point where the issue of law was

unequal access to financial aid. As in other areas of sport,

access to participation is litigated more frequently.

The actual impact of Title IX has been significant.

Female athletic participation at the collegiate level has

risen 850 % since the introduction of Title IX in 1972. It is

impossible to imagine that the athletic opportunities that

exist today were not always available to women.122

3.1.3 Proportionality fits for the CIS

Proportionality was ultimately not incorporated into the

CIS Gender Equity Gender Equity Policy. Doing so would

have involved examining the proportionality of varsity

participation opportunities to the student body as a whole,

with the requirement that participation opportunities fall

within 10 %.123 The CIS initially considered defining

gender equity in terms of available scholarship dollars.124

The standard considered was that the funds available to

each gender should be proportional to the number of male

and female athletes on team rosters, as is required in the

NCAA.125 This definition was rejected as being too narrow

in scope, and was updated in 2003 to be broader than

funding alone.126 Gender equity it thus defined as the

‘‘principle and practice of fair and equitable allocation of

opportunities and resources to both females and males.

Gender equity eliminates practices that are barriers to the

full participation of either gender.’’127 Unfortunately, fail-

ing to implement objective criteria for this definition has

led to a continuation of the status quo, where there are 2.9

opportunities per 100 male university students and only 1.8

opportunities per 100 female students.128

3.2 Proportionality solves the problem

There is no reason to deny Canadian athletes gender equity

when a practical model can be adopted to ensure it. Simple

equality in participant numbers or funding dollars could

foster mediocrity by guaranteeing an equal number of

positions to each sex regardless of ability or field depth.

Conversely, however, a purely merit-based system cannot

be equitable if it compares male and female athletes. The

plight of women in cross-country skiing, who currently

have fewer than half the elite opportunities available to

them than men have, shows that this comparison is difficult

to make equitably, even with the best of intentions.129

Gender proportionality should exist between available

elite opportunities and the population from which that roster

is drawn. This is equitable because athletes of both sexes can

expect equal opportunities to rise to the elite level. There is

doctrinal support, as discussed above, for this approach. In

the university sport context, this population is easily defined

as the student body or the student athlete population. This

calculation becomes more difficult in the elite sport context.

It is unfair to expect proportionality between elite opportu-

nities and the population at large because there are other

mitigating factors over which NSOs have no control which

act as barriers to entry to high-level sport. It is reasonable,

however, to demand proportionality between available

senior national team roster positions and the number of

athletes of each sex competing at the national level in those

categories from which the team is selected. To further mit-

igate the effects of factors beyond the control of NSOs,

requiring that the number of opportunities for each gender

fall within 10 % of the gender split of athletes competing, as

contemplated by the CIS, is fair and pragmatic.130

A major concern with this approach is that segregation

of the sexes is a step backwards. Proportionality does not

require the segregated operation of national team pro-

grams. It only requires separate consideration of men and

women for the purposes of resource allocation. Sex seg-

regation has played a significant role in the subordination

of women, so it should only be allowed as an excep-

tion.131 Any state support for segregation must meet the

117 Judge, supra note 106 at 23.118 Ibid.119 Ibid.120 Ibid.121 Ibid at 135.122 Staurowsky, supra note 109 at 72.123 Donnelly, supra note 54 at 11.124 Ibid.125 Ibid.126 Ibid.

127 Ibid.128 Ibid at 5.129 Cross Country Canada, supra note 98.130 See Donnelly, supra note 54 at 11.131 Van den Brink, supra note 16 at 116.

26 Int Sports Law J (2013) 13:18–34

123

equality and non-discrimination standards in international

conventions and the Charter.132 Sex segregation can only

be acceptable where both tangible and intangible elements

of the segregated systems are equal.133 In the system of

proportionality under contemplation, there is no reason

sex-segregated national teams would be unequal, espe-

cially if that segregation is for the purposes of team

selection only.

3.2.1 Proposed model for changes to Canadian Physical

Activity and Sport Act

The most pragmatic solution to the gender inequities in

Canadian elite sport is to require sports whose NSOs are

charged with fielding both men’s and women’s teams to

allocate national team roster opportunities and Carding

nominations in a ratio that is within 10 % of the proportion

of males to females competing at the national level in the

categories from which selections are made. The propor-

tionality calculation for the allocation of Sport Canada

Cards should be independent of the national team roster

calculation. The number of athletes awarded Sport Canada

Cards can be more or less than the number of athletes with

Senior National Team positions, so a separate proportion-

ality analysis is necessary.

Proportionality will allow a fluid standard that shifts

with participation numbers, and will give equitable chances

to both sexes. The same percentage of each field can expect

the opportunity to rise to the elite level and be funded by

Sport Canada. This calculation may require segregation of

the sexes for team and funding selection purposes, and

criteria that differ between men and women in some cases.

While not formally equal, the result will be equitable. This

standard can be fitted into the current sport system without

requiring a structural overhaul of either the Sport Canada

system or its member NSOs.

This model addresses resource allocation between men’s

and women’s teams where both are represented by the

same NSO. It is not intended to supplant the allocation of

Cards to NSOs by Sport Canada, nor should it influence the

allocation of Cards or team positions in NSOs representing

one sex only. However, NSOs who represent athletes of

both sexes but manage their men’s and women’s teams

separately should still be required to comply with the

proportionality standard. For example, Sport Canada allo-

cates Cards separately to men’s and women’s gymnastics

because the sexes are managed separately by Gymnastics

Canada. These Cards are allocated based on the interna-

tional performance of male and female gymnasts, respec-

tively.134 The outcome is a 7 % discrepancy between Cards

allocated and the national field in each gender. This falls

within the proportionality standard under contemplation.

However, to ensure that elite opportunities are equitable,

regardless of a team’s international performance in a given

year, proportionality should be applied nonetheless.

Some NSOs may argue that when Senior Card and

Development Card allocation are considered together, their

programs are equitable. However, providing development

level opportunities is not the same as allocating elite

opportunities. Few athletes dream of only qualifying for a

development team or being nominated to a training centre,

they dream of international success. It is those elite

opportunities that must be available equitably to athletes of

both sexes. If athletes perceive that elite opportunities are

not realistically available to them, they will leave sport at

the development level, before they reach their elite

potential.135

Some NSOs and male athletes may also argue that a

proportionality standard will require deserving male ath-

letes to go unsupported in favor of less deserving female

athletes. It certainly is not ideal, nor is it necessary, to have

deserving male athletes lose support. However, arguing

that men are more deserving than women requires the

comparison of male and female athletic performances,

which is logically problematic. Men and women do not

compete in the same events and often their events differ

significantly in format. Comparing the sexes is akin to

comparing performances in different disciplines. It cannot

be logically maintained as a fair method of allocating

opportunities. Further, proportionality does not necessarily

require men’s resources to be diminished. Women’s

resources can be increased instead. This may mean fewer

Development Cards can be distributed in favor of distrib-

uting more Senior Cards. This will still achieve the purpose

of encouraging development in elite sport because if ath-

letes see the opportunity to advance, they will strive for

excellence.136

Ideally, once women have equitable opportunities to

achieve excellence, their presence at the height of inter-

national sport will break down any remaining barriers to

their participation. As a matter of practicality, and for the

continued equitable treatment of both men and women, the

fluid proportionality standard recommended above should

remain in place regardless of any concrete changes in the

reality of gender equity, or in public sentiment. It is a basic

measure that ensures elite athletics opportunities will be

equitable in an ever-shifting social environment.

132 See Ibid; Charter, supra note 4, s 15.133 Van den Brink, Ibid at 120.

134 Men’s Gymnastics AAP, supra note 100.135 Women’s Sports Foundation. Reasons Girls Drop Out of Sports(2012), online: Fast and Female www.fastandfemale.com.136 Ibid.

Int Sports Law J (2013) 13:18–34 27

123

4 Enforcing proportionality

Statutory reform will be necessary to allow the propor-

tionality standard to be effectively enforced. Subjecting

women to the humiliation of fruitless appeals over dis-

criminatory funding criteria, to a body of people with

whom they must continue to interact for the duration their

athletic careers, amounts to taking their dignity.137 It can

be constitutionally acceptable for a state to deprive a per-

son of liberty or property in some situations, but to deprive

individuals of their dignity is not.138 Shaming punishments

are those that are coercive, humiliating and degrading.139

This is exactly the fear of female athletes, the fear of being

‘‘black balled’’ for the remainder of their careers if they

speak up.

Judicial and quasi-judicial procedures need to work

effectively in order to provide legal force to the regulatory

framework.140 Unfortunately, there is a gray area as to a

forum for disputes over the content of selection criteria.

Because it approves all Carding criteria, Sport Canada can

act as a gatekeeper to enforce the proportionality standard.

Where this step fails, however, athletes must be able to

challenge approved selection criteria in some forum.

Forum access in this case is best achieved using three

connected components: the Sport Dispute Resolution

Centre, the Canadian Human Rights Commission and the

Canadian Charter of Rights and Freedoms. Each compo-

nent addresses a different yet necessary aspect of

enforcement. The Sport Dispute Resolution Centre should

continue to fulfill its current role. Athletes are able to

appeal to the Dispute Resolution Centre, or directly to

NSOs, where they are challenging the application of

selection criteria.141 This avenue is not available to chal-

lenge the fairness of the criteria themselves once they have

been approved by Sport Canada, before which time they

are generally not available for review.142 However, the

Sport Act calls for the fair, equitable, transparent and

timely resolution of disputes in sport.143 The Canadian

Human Rights Commission, therefore, could hear chal-

lenges to selection criteria under an adapted employment

equity regime. Finally, appeals to the Charter should be

available to address the systemic aspects of bias in the elite

sport system.

4.1 Sport Canada Dispute Resolution Centre

With its current mandate, the Sport Canada Dispute Res-

olution Centre can ensure that approved, equitable criteria

are properly implemented in team and Carding selections.

It is likely that the majority of challenges will continue to

be to the application of criteria, so an easily accessible

forum is important. Leaving this role to the Centre is also

advantageous because it is a sport-specific tribunal that is

intended to be alive to the particularities of the elite ath-

letics context. For athletes, this avenue is likely more cost

effective, faster and easier to access than the Human Rights

Commission or the court system.144 Further, this adminis-

trative tribunal could be empowered to provide a broad

range of remedies, beyond victim compensation. For

example, in addition to requiring an NSO in breach to

comply with its proportionality objectives, the Dispute

Resolution Centre could require the board of the NSO to

take part in an equity education program. This would

ensure the broader social aims of the reforms under

contemplation.

There is a concern, however, that the Dispute Resolution

Centre lacks the credibility and strength of other potential

forums because it is specific to sport. Further, according to

the 2002 Sport Policy, the current dispute resolution system

is ineffective.145 The 2012 version of this document no

longer mentions this issue but does not indicate that it has

been resolved.146

4.2 Human Rights Commissions and employment

equity

4.2.1 Human Rights Commission designed to make this

kind of decision

The Canadian Human Rights Commission can hear chal-

lenges to selection criteria themselves. The Sport Act

should be amended to specify that elite athletics is akin to

employment and, as such, selection criteria are required to

adhere to the employment equity standards set by the

Canadian Human Rights Act. Substantive equity can be

defined for the sport employment context as the propor-

tionality standard discussed above.147 The Canadian Act

states that it is discrimination to circulate any application

or advertisement that shows or implies a limitation, spec-

ification or preference based on sex or gender.148 If this137 C.f. Sanger, Carol, ‘‘Decisional Dignity: Teenage Abortion,

Bypass Hearings, and the Misuse of the Law’’ (2008) 18 Colum J

Gender & L 409 at 485.138 C.f. Ibid at 488.139 Ibid at 488.140 C.f. Ibid at 490.141 Sport Canada AAP, supra note 88, s 13.1.142 Ibid.143 Sport Act, supra note 5, s 4(1).

144 Sport Policy 2002, supra note 7 at 10.145 Ibid.146 Sport Policy 2012, supra note 58.147 Sport Act, supra note 5; Canadian Human Rights Act, RSC 1985,

c H-6 [Canadian Act].148 Canadian Act, Ibid, s 8.

28 Int Sports Law J (2013) 13:18–34

123

provision is applied to the instant context, it would allow

female athletes to challenge criteria directly, not only their

application, which is precisely what is needed in terms of a

forum for the enforcement of proportionality.

The Canadian Human Rights Commission is prepared to

hear cases about gender equity in elite sport. At regular

intervals, sport discrimination cases are brought under

human rights law, but these tend to be focused on issues of

complete exclusion from participation.149 The Sagen case

discussed previously began as a complaint to the Canadian

Human Rights Commission, which resulted in a mediated

settlement.150 The Department of Heritage and Vanoc were

required to lobby the IOC to respect the Canadian value of

gender equity.151 Further, if the IOC did not change its

position on the exclusion of women’s ski jumping for the

Vancouver games, the Department of Heritage was

required to fund women’s ski jumping events and athletes

equally to their male counter parts for the 2010 funding

year.152 Bringing criteria challenges before the Human

Rights Commission has several advantages: the Commis-

sion has the power to compel compliance with its deci-

sions; it can provide a broad range of remedies; and its

decisions are open to judicial review under a reasonable-

ness standard.153 The Commission is also likely subject to

greater media scrutiny than the Sport Dispute Resolution

Centre.

4.2.2 Elite sport is akin to employment

For the purpose of creating an enforcement structure for the

content of selection criteria, elite athletics should be treated

as akin to employment. Athletes are not technically

employed by their NSO or by Sport Canada, despite fre-

quently receiving the bulk of their income through these

organizations. Regardless, elite athletes do treat sport as

employment and often are not otherwise employed.

The issue should fall to Canadian rather than provincial

human rights law because the elite sport system is a federal

program.154 Also, the Canadian Act requires equal pay for

equal value, rather than for equal work, which is the

standard in some provincial statutes.155 Equal pay for equal

value is more applicable to the sport context where male

and female disciplines can differ significantly.

If men’s and women’s teams are separated to avoid

comparisons between the sexes, these teams must receive

equal access to funding if the Canadian Act is applied.

Under the Canadian Act, it is discrimination to establish or

pursue any practice that limits opportunities, and it is dis-

crimination to segregate or classify in any way that would

limit opportunities or adversely affect a group.156 It is also

discrimination to create separate establishments to allow

for pay differentiation.157 These provisions have clear

implications for the plight of female athletes and their

access to resources.

Giving this authority to the Commission will require a

reasoned definition as to what constitutes a reasonable

differential resource allocation in the context of elite sport.

This should amount to the application of the proportion-

ality standard. Wages are defined under the Canadian Act

as any advantage received directly or indirectly from the

individual’s employer.158 The Canadian Act allows for

wage differentials where there is a reasonable reason for

such differences, and the Canadian Human Rights Com-

mission can set guidelines as to what is a reasonable

reason.159

Bringing elite sport under the umbrella of employment

equity could open the door to Charter litigation because the

courts are prepared to accept civil actions that would nor-

mally be heard by the Human Rights Commission, if they

are based on Section 15 equality issues.160

4.3 Appeals to the Charter

aking Section 15 Charter challenges a viable option

would dramatically change gender equity disputes in elite

sport. This would allow for the ultimate enforcement of

the proportionality scheme under contemplation by rec-

ognizing that the issue is one involving fundamental

constitutional rights. The level of media scrutiny that

comes with Charter litigation also plays an important role

in educating those involved as to public opinion on

gender equity issues. In Sagen, media attention sur-

rounding the case is believed to have played a significant

role in gaining the inclusion of women’s ski jumping in

the upcoming 2014 Games, despite the athletes’ loss in

court.161 Following this roundabout success, female canoe

racers who were excluded from the London Olympics are

hoping for a similar result by challenging their exclusion149 See Young, supra note 18 at 101.150 Ibid at 96.151 Sagen SC, supra note 38 at para 119.152 Ibid.153 Dunsmuir v New Brunswick, [2008] 1 SCR 190 at para 47, [2008]

SCJ no 9.154 Canadian Act, supra note 147, s 1.155 Ibid, s 11(2); See e.g. Alberta Human Rights Act, RSA 2000, c

A-25.5, s 6(1).

156 Canadian Act, Ibid, ss 10, 9(1).157 Ibid, s 11(3).158 Ibid, s 11(7).159 Ibid, ss 11(4), 27(2).160 Perrera v The Queen, [1998] FCJ no 413 at para 230, 98 CLLC

(Fed CA).161 Ebner, supra note 2.

Int Sports Law J (2013) 13:18–34 29

123

in English courts.162 The effects of Charter litigation

would be greater still if claimants could reasonably expect

the possibility of a favorable decision.

It is not in line with a purposive interpretation of the

Charter to allow the government to evade Charter scrutiny

of the elite sport system. According to both the Sport Act

and the Sport Policy 2012, promoting elite athletics is a

pressing and substantial objective for federal government

regulation.163

The systematic bias promoted by facially neutral

selection criteria infringes the Section 15 equality guar-

antees. The test for discrimination under Section 15(1) of

the Charter was enumerated by the Supreme Court of

Canada in R v Kapp.164 If the law creates a distinction

based on enumerated or analogous grounds, and this dis-

tinction creates a disadvantage by perpetuating prejudice or

stereotyping, then the law infringes Section 15(1).165 NSO

criteria create distinctions based on the enumerated ground

of gender. In keeping with Canada’s substantive equality

approach, according to the Withler v Canada (A.G.) deci-

sion, as long as a distinction is created on an enumerated

ground, there is no need to identify a comparator group.166

The plaintiff must establish that they are being denied a

benefit that others are granted, and that this denial per-

petuates a disadvantage or stereotype.167 Further, like in

Eldridge v BC, once the government extends a benefit, it is

obliged to do so in a non-discriminatory way.168 The effect

of the distinction in NSO criteria is to promote prejudice by

perpetuating the pre-existing disadvantage of female ath-

letes in the male-dominated world of elite sport. Further,

the distinction perpetuates stereotyping because the effects

of the legislation are to create a distinction that does not

correspond to the actual needs and abilities of female

athletes.

The government may still operate the elite sport system

in a prima facie discriminatory way if they are able to pass

the requirements of Section 1 of the charter, which allows a

law to limit rights under some circumstances. The Sec-

tion 1 test was enumerated in R v Oakes.169 To be

acceptable, a limit to a right must have a pressing and

substantial objective, have a rational connection between

the measure and the objective, be minimally impairing of

the right in question, and there must be proportionality

between the effects and the objective.170 Here, the NSO

criteria have the pressing and substantial objective of

providing opportunities to the best elite athletes, and to

ensure Canada is best represented on the world stage. There

is a rational connection between the criteria implemented

and this objective because they are directly aimed at

accomplishing this objective. Where the criteria fail is at

the point of minimal impairment. There are no concrete

measures in place to minimize discriminatory treatment in

elite sport. There has been no effort to impair the right to be

free from discrimination as little as possible. The propor-

tionality model could be adopted to better allow for sub-

stantive equality in this context, and thus the minimal

impairment of the right to be free from discriminatory

treatment.

In a recent Charter case similar to the issue under

consideration, the BC Supreme Court in Sagen found that,

while discrimination existed in Vanoc’s failure to include

women’s ski jumping in the Vancouver Olympic Games,

recourse to the Charter was not possible. Vanoc’s exclu-

sion of the female jumpers was not an action taken in its

capacity as a government actor. It was rather implementing

the decision of a private body, the IOC, which is not bound

by the Charter.171 The BC Court of Appeal upheld this

outcome, but for the reason that there was no benefit of law

in issue as required under Section 15 of the Charter.172

4.3.1 The state action issue

What is remarkable about this decision is that a government

program, and activity under that program, was allowed to

evade Charter scrutiny because the element of the program

at issue followed the direction of a non-state actor.173

Canadian Charter jurisprudence revolves around a funda-

mental distinction between governmental and non-govern-

mental action under Section 32.174 This doctrinal distinction

arises because requiring non-state actors to adhere to con-

stitutional virtues appears to be a form of state coercion.175

Unfortunately, however, it is difficult in practice to clearly

define what is state action and what is not.176

The result is two lines of argument to determine state

action. First, if an entity is a government actor according its

nature and degree of government control, which generally

means routine daily oversight, its actions will be state

action.177 Second, a private entity will be considered a state

162 Ibid.163 Sport Act, supra note 5, s 1; Sport Policy 2012, supra note 58 at 4.164 [2008] 2 SCR 483, 294 DLR (4th) 1.165 Ibid at para 17.166 2011 SCC 12 at para 40.167 Ibid.168 [1997] 3 SCR 624 at para 73, 151 DLR (4th) 577.169 [1986] 1 SCR 103, 26 DLR (4th) 200.

170 Ibid.171 Sagen SC, supra note 38 at para 121.172 Sagen CA, supra note 1 at para 56.173 Young, supra note 18 at 96.174 Ibid.175 Ibid at 97.176 Ibid.177 Ibid.

30 Int Sports Law J (2013) 13:18–34

123

actor to the extent that it is carrying out a government

policy or programme according to the test articulated in

Eldridge v BC.178 Vanoc was a government initiated and

controlled entity, but the level of government control of

day-to-day operations was not sufficient to qualify Vanoc

as a government actor under the first test.179

According to BC Supreme Court, and not overturned by

the Court of Appeal, the Charter was applicable to Vanoc’s

activities in planning and staging the games under the

Eldridge test.180 According to the BC Supreme Court,

hosting the Olympic Games is governmental in nature in

the sense that, first, the Games are awarded to a host city

and, second, historically governments hosted the Games

directly, and the level of government involvement is still

high as evidenced by the bid process and contracts for the

staging of the 2010 Games.181 Furthermore, the IOC would

not have awarded the Games to Vancouver had its bid not

been backed by all four levels of government.182 Finally,

the governments involved imposed on Vanoc the pay

equity and equal employment standards applicable to

government employers.183 Similar to an American decision

finding that the 1984 Los Angeles Olympic Games were

sufficiently governmental to trigger equal rights protection,

the BC Supreme Court found that Vanoc was subject to the

Charter in its planning, organizing, financing and staging

of the 2010 Games.184

However, decisions made by the IOC, a private entity,

and implemented by Vanoc, were not subject to Charter

scrutiny, thus distinguishing the selection of events from

their staging.185 This distinction has the effect of giving

government programs the ability to discriminate as long as

control over the decision to discriminate rests with a non-

government actor.186 This distinction is similar to the

relationship between Sport Canada and the NSOs who

write selection criteria. This would seem to close the door

on Charter scrutiny of such criteria, regardless of the fact

that government action is required to implement the dis-

criminatory decisions of private actors.187

NSOs are not subject to the degree of government

control required to meet the first test for state action. The

Canadian Physical Activity and Sport Act specifies only

that the sport Dispute Resolution Centre is not a

government actor.188 Simple government funding is

insufficient to create a government actor.189 While NSOs

do receive government funding, their boards are neither

appointed nor controlled by government.

Whether NSOs are private actors carrying out a gov-

ernment programme is more debatable. The Minister for

Sport has large discretion over matters relating to the

promotion of sport.190 Further, it is the responsibility of the

federal government, under the Sport Policy, to provide

direct financial aid to elite athletes as well as support

through the NSOs and National Sport Centres, and to

ensure the inclusion of underrepresented groups.191 Gov-

ernment controls Sport Canada, which implements the

program of funding through the NSOs. The Supreme Court

has stated that the government cannot be allowed to shirk

its Charter obligations by conferring power to another

entity.192 Further, delegating the administration of a pro-

gram through legislation is not privatization but simple

administrative reconstruction that does not change the

governmental nature of the activity.193 Thus, delegating the

task of writing selection criteria to the NSOs does not

necessarily shield this activity from Charter scrutiny.

Allowing NSOs to write their own criteria can be con-

strued as a government policy decision which, when

combined with the Sport Canada approval process, should

act to bring the criteria under Charter scrutiny. As with the

IOC in the Sagen case, decisions made by NSOs would

likely be found to have been made by private actors under

the current doctrinal tests. The issue under consideration,

however, can be distinguished from Sagen by the fact that

Sport Canada must approve the selection criteria decisions

made by NSOs. Vanoc was merely to implement the

decisions of the IOC without any ability to approve or

reject those decisions.

4.3.2 Application of Section 15 equality

The BC Supreme Court decided that extending the defini-

tion of law, for the purposes of Section 15, to cover gov-

ernment activity carried out by a contracted private entity

was a natural step under a purposive interpretation of the

Charter.194 If the Charter is applicable, Section 15

178 Ibid.179 Sagen SC, supra note 38 at paras 13-34.180 Ibid at para 65.181 Ibid at para 56.182 Ibid at para 62.183 Ibid at para 63.184 See Ibid at para 65.185 Young, supra note 18 at 98.186 Ibid at 99.187 See Ibid.

188 Sport Act, supra note 5, s 9(2).189 McKinney v University of Guelph, [1990] 3 SCR 299 at para 52,

76 DLR (4th) 545.190 Sport Act, supra note 5, s 5.191 Sport Policy 2012, supra note 58 at 17.192 Greater Vancouver Transportation Authority v Canadian Feder-ation of Students – British Columbia Component, 2009 SCC 31 at

para 22, [2009] 2 SCR 295.193 Ibid.194 Sagen SC, supra note 38 at para 72.

Int Sports Law J (2013) 13:18–34 31

123

requires the litigant to show an unequal benefit flowing

from the law according to the Kapp test.195

The Court of Appeal overturned the BC Supreme Court

on this point, deciding that existing jurisprudence does not

stand for the proposition that all obligations and entitle-

ments under government contracts constitute law.196

Instead, only deliberately and formally adopted policies of

government are law even if they happen to be contracts.197

While discrimination is easy to spot, because female ski

jumpers are the same as men in their sport but for their

gender, there is no law in the sense required to trigger

Section 15 protection.198 The IOC is not a law-making

body. No Canadian government body endorsed its decision,

which was then implemented by Vanoc. The decision not

to include women’s ski jumping was not law.199 The issue

again is a lack of Vanoc control over the choice of

events.200

The BC Supreme Court reasoning is more persuasive in

its application to the Canadian elite sport system. Using the

reasoning of the BC Court of Appeal, it is nearly impos-

sible to find discrimination unless it is in the explicit pol-

icies of a government. If a private entity, such as an NSO,

is contracted to implement a government program as is the

case with the writing of selection criteria, why is that not

law in the same way it would be if the criteria were written

by a government body itself? The choice to contract out

this component of the Canadian elite sport system is a

policy choice made by government. The contractor is

implementing the government elite sport program in the

government’s stead. It follows that any selection criteria

the NSOs implement are thus law in the sense required for

the applicability of Section 15 of the Charter.

If government contracts delegating authority and pro-

viding funding to NSOs are construed as deliberate policy

choices, the actions of NSOs in fulfilling their athlete-

selection obligations would be subject to Charter scrutiny.

However, as the relationship between the IOC and Vanoc

demonstrates, it could be argued that Sport Canada is

merely implementing decisions made by the private NSOs.

The distinguishing element here again is that Sport Canada

must approve all carding selection criteria prior to their

implementation. As discussed in Subsection 4.3, NSO

criteria do infringe the Section 15 equality guarantees, a

conclusion that can be remedied through the application of

the proportionality standard. The door to successful

Charter appeals may be open.

5 Conclusion

The Canadian Physical Activity and Sport Act should be

amended to require proportionality, within 10 %, between

participant numbers of each sex at the national level, and

the number of positions available to each sex on national

teams. A parallel proportionality should be required for the

allocation of Sport Canada Carding funds. Sport Canada

should act as a gatekeeper by reviewing criteria for pro-

portionality before approving them. Challenges to the

implementation of selection criteria would be best dealt

with by the Sport Canada Dispute Resolution Centre as is

currently the case. It is positioned within the sport com-

munity and can educate the offending NSO as to their

responsibilities to that community. Challenges to team

selection or Carding criteria themselves should be heard by

the Canadian Human Rights Commission under the

Canadian Act’s employment equity provisions. The Com-

mission would not need specialized knowledge of the sport

environment to determine whether NSOs have fulfilled

their proportionality responsibilities. Granting this juris-

diction recognizes that being an elite athlete is akin to

employment and emphasizes the gravity of failing to fund

athletes equitably. Ultimately, Charter litigation should be

available because this issue is one of fundamental social

value. Also, the increased media exposure that Charter

appeals entail would serve to educate offending NSOs for

their failure to uphold a societal norm.

More than throwing money at the problem of gender

inequity in elite sport, requiring proportionality creates a

fluid, equitable framework that allows both sexes the

opportunity to reach their athletic potential. This system

would avoid fostering mediocrity, a potential danger of

fixing simple equal number requirements for men’s and

women’s teams. The system would also avoid the dangers

of many of the current purely merit-based criteria that

compare male and female performances, often resulting in

inequitable treatment of female athletes. The opportunities

available would be proportional to the number of athletes

who can reasonably hope to fill those positions. This

solution is pragmatic. It can be implemented within the

current high performance sport framework in Canada. As

barriers to participation fall in recreational and lower level

competitive sport, increased participant numbers at the

national level will trickle up to increase the opportunities

available to women at the elite level.

While this proposal does not address the issue of gender

bias in elite sport in its international context, it is made to

bring the Canadian sport system in line with our Canadian

value system. On the international scale, women’s sport is,

for the most part, second fiddle to men’s sport.201 We can

195 Young, supra note 18 at 100.196 Sagen CA, supra note 1 at para 60.197 Ibid.198 Ibid at para 56; Young, supra note 18 at 100.199 Sagen CA, ibid.200 Young, supra note 18 at 100. 201 Pfister, supra note 8.

32 Int Sports Law J (2013) 13:18–34

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only control the reality of our own domestic sport system.

In the Canadian context, inequity runs counter to our

fundamental values. By implementing a substantive defi-

nition of equity in elite sport, Canada can serve as an

example for the international sporting community and

further the cause of gender equity worldwide.

Acknowledgments She wishes to extend her heartfelt thanks to

Professor Hoi Kong, McGill University, for his guidance, assistance

and passion for this project.

References

Legislation

Alberta Human Rights Act, RSA (2000) c A-25.5

Canadian Charter of Rights and Freedoms, Part I of the Constitution

Act (1982) Being schedule B to the Canada Act 1982 (UK),

1982, c 11

Canadian Human Rights Act RSC (1985) c H-6

Canadian Physical Activity and Sport Act, SC (2003) c 2

Canada, Federal and Provincial Ministers for Sport, Recreation and

Physical Activity, Canadian Sport Policy, 24 May 2002. Online:

Sport Research Intelligence Sportive. http://sirc.ca/CSPRenewal.cfm

Canada, Federal and Provincial Ministers for Sport, Recreation and

Physical Activity, Canadian Sport Policy, 27 June 2012. Online:

Sport Research Intelligence Sportive. http://sirc.ca/CSPRenewal.cfm

Canada, Canadian Heritage, Sport Canada Athlete Assistance Pro-

gram: Policies, Procedures and Guidelines (2012) Public Works

and Government Services Canada, Ottawa. Online: Canadian

Heritage. http://www.pch.gc.ca/pgm/sc

Jurisprudence

Dunsmuir v New Brunswick (2008) 1 SCR 190, (2008) SCJ no 9

Eldridge v British Columbia (Attorney General) (1997) 3 SCR 624,

151 DLR (4th) 577

Greater Vancouver Transportation Authority v Canadian Federation

of Students-British Columbia Component, 2009 SCC 31 (2009)

2 SCR 295

Law v Canada (Minister of Employment and Immigration) (1999) 1

SCR 497 (1999) SCJ no 12

McKinney v University of Guelph (1990) 3 SCR 299, 76 DLR (4th)

545

Perrera v The Queen (1998) FCJ no 413, 98 CLLC (Fed CA)

R v Oakes (1986) 1 SCR 103, 26 DLR (4th) 200

R v Kapp (2008) 2 SCR 483, 294 DLR (4th) 1

Sagen v. Vancouver Organizing Committee for the 2010 Olympic and

Paralympic Winter Games 2009 BCCA 522 (2009) BCJ 2293

Sagen v. Vancouver Organizing Committee for the 2010 Olympic and

Paralympic Winter Games, 2009 BCSC 942 (2009) BCJ No

1393

Withler v Canada (A.G.) (2011) SCC 12

Secondary materials

Adler LS et al (2008) Women and the Law. Foundation Press, NY,

529

Donnelly P, Kidd B, Norman M (2011) Gender Equity in Canadian

Interuniversity Sport: a Biannual Report, CSPS Gender Equity

Report #1. Online: University of Toronto Centre for Sport Policy

Studies. http://www.sportpolicystudies.ca

Green TK (2008) Discrimination in Workplace Dynamics: Toward a

Structural Account of Disparate Treatment Theory. In: Libby SA

et al (eds) Women and the Law. Foundation Press, New York,

594

Halbert C (1997) Tough enough and woman enough: stereotypes,

discrimination and impression management among women

professional boxers. J Sport and Social Issues 21:7

Hamilton Krieger L (2008) The content of our categories: a cognitive

bias approach to discrimination and equal employment oppor-

tunity. In: Libby SA et al (eds) Women and the Law. Foundation

Press, New York, p. 600

Huggins A, Randell S (2007) The contribution of sports to gender equality

and women’s empowerment. Paper delivered at the International

Conference on Gender Equity on Sports for Social Change, Kigali,

[unpublished] online: International Federation of University Women.

www.ifuw.org/rwanda/media/women_sports.pdf

Judge J, O’Brian T (2011) Equity and Title IX in Intercollegiate

Athletics A Practical Guide for Colleges and Universities—

2011. In: Karen M (ed) Online: NCAA Gender Equity Task

Force. http://www.NCAA.org/gender_equity

Lafferty Y, McKay J (2004) Suffragettes in satin shorts? Gender and

competitive boxing. Qual Sociol 27(3):249

Mala Corbin C (2006) Above the Law? The Constitutionality of the

Ministerial Exemption from Antidiscrimination Law, 75. Ford-

ham L Rev 1965

Pfister G (2011) Gender Equality and Elite Sport. Paper delivered at

the Enlarged partial agreement on sport, Strasbourg, 28

November 2011, EPAS (2011) INF 25

Sanger C (2008) Decisional Dignity: Teenage Abortion, Bypass

Hearings, and the Misuse of the Law. 18 Colum J Gender & L

409

Staurowsky E (2003) Title IX in its third Decade: The Commission on

Opportunity in Athletics 2 ESLJ 70

Van den Brink M, Titia Loenen, Jet Tigchelaar (2010) Sex

segregation and equality in a multicultural society: inferiority

as a standard for legal acceptability. 6 Utrecht L Rev 115

Young M (2009) The IOC Made Me Do it: Women’s Ski Jumping,

VANOC, and the 2010 Winter Olympics. 18 Const F 95

Other materials

Athletics Canada, 2012–2013 Athletic Assistance Program (AAP)

Policy-Olympic Stream, online: Athletics Canada. http://www.

athletics.ca

Athletics Canada, Results Archive, online: Athletics Canada.

http://www.athletics.ca

Cross Country Canada, Athlete Assistance Program Carding Criteria

2012–2013, online: Cross Country Canada. http://www.cccski.

com

Cross Country Canada, CPL Points Database, online: Cross Country

Canada. http://www.cccski.com

Ebner D (2012) Female canoe racer takes Olympic inequality to

court. The Globe and Mail (19 July, 2012) S1

Gymnastics Canada, Women’s Artistic Gymnastics: Sport Canada

Athlete Assistance Program Carding Process-July 1, 2012–June

30, 2013, online: Gymnastics Canada. http://www.gymcan.org

Gymnastics Canada, Men’s National Team Carding Criteria: for

Nominations for the 2012-2013 Carding Cycle, online: Gym-

nastics Canada. http://www.gymcan.org

Int Sports Law J (2013) 13:18–34 33

123

Gymnastics Canada, Results Archive, online: Gymnastics Canada.

http://www.gymcan.org

International Olympic Committee, Olympic Charter (Lausanne:

International Olympic Committee), Online: International Olym-

pic Committee. http://www.olympic.org

Levy A (2012) A ring of one’s own: can a teen-age Olympic hopeful

remake the image of women’s boxing? The New Yorker 88:12 (7

May 2012) 38

Speed Skating Canada, High Performance Bulletin # 164-Long Track,

online: Speed Skating Canada. http://www.speedskating.ca

Women’s Sports Foundation. Pay Inequity in Athletics (March 2007),

online: Women’s Sports Foundation. http://www.womenssport

foundation.org

Women’s Sports Foundation. Reasons Girls Drop Out of Sports

(2012), online: Fast and Female. www.fastandfemale.com

34 Int Sports Law J (2013) 13:18–34

123