Making The Case For Gender Integration Of A High School Wrestling Team
by Jennifer Ryz

Action, Autumn 1997 p.16-17 Canadian Association for the Advancement of Women and Sport and Physical Activity CAAWS

The landmark case of Blainey v. Ontario Hockey Association (1985) has influenced the way Canadian courts have ruled on cases involving gender discrimination in sport. However, it remains to be seen if the Blainey case will have any impact on an upcoming case involving a school board and a coach discriminating against a female wanting to wrestle on her high school team. Although many issues surround this case, the main issue concerns the integration of females on formerly all-male sport teams. The school board offers several justifications for gender discrimination. First, the school board claims to have evidence of substantial physiological differences between women and men, even after taking into account the different weight classes. Second, male teachers claim that in coaching the girls effectively, they would run the risk of being charged with sexual abuse. Finally, the school board argues that an integrated team would promote sexual contact between the athletes and would breach public decency standards.
It must be pointed out that the Charter of Human Rights and Freedoms (1982) is applicable only to public entities. Other cases involving gender discrimination within private, autonomous sport organizations would not be subject to the equality provisions of the Charter. In addition, rulings that have favoured integration are specific to pre-pubescent females and hockey. However, this can be qualified by American case examples that have dealt with a range of ages and sports (contact and non-contact). And in the Blainey case, the issue of litigation was the contradiction between a provincial code and the Charter.

Critical Elements
This case falls under the scope of Section 32 of the Charter because it meets the test of governmental action. Consequently, school boards and their athletic programs are within the scope of the Charter because the programs are deemed part of schools. Schools in turn receive their power from provincial school legislation. In addition, discrimination must be determined to be the reason for exclusion in order for a case to be within the scope of the Charter under Section 15. In this case, since exclusion is based on the personal characteristic of gender, it can be defined as discrimination. The question now becomes whether or not the school board has valid reasons to discriminate against females wanting to wrestle on the high school team.

Stating The Case
Section 1 of the Charter has often been used in gender discrimination cases where discrimination has been proven. However, this same section also restricts the rights to equality if it can be proven that equality cannot be demonstrably justified in a free and democratic society. The school board's claim of insurmountable evidence showing physical differences between the genders is most likely meant to justify exclusion for safety reasons. Exclusion has been allowed by the courts if it has been decided that girls or women will be injured if allowed to compete against bigger, stronger boys or men. However, the key word is compete. The girl in the wrestling case wants to practice with the male team and compete against females, a set-up very common to other combative sports like judo, tae-kwon-do, and karate.

Even though there are many Canadian gender discrimination cases in sport, none have directly involved the justification of exclusion based on physiological differences. However, a number of such cases have been heard in the United States.

In Leffel v. Wisconsin Interscholastic Athletic Association (1982), female athletes brought action for all female public high school students to have opportunity equal to that afforded to all males after Leffel was denied the opportunity to qualify for competition with male students on the varsity baseball team. There was no separate female team for interscholastic competition. The decision was significant because, first, it showed that excluding females from all contact sports to protect them from unreasonable risk of injury is not fairly or substantially related to a justifiable government objective. Second, it was held unconstitutional, where there were no female teams, to prohibit coed athletic teams in high schools. In the National Organization for Women v. Little League Baseball (1974), the court ruled that females were physically able to play as equals with males at the middle school level.

Other court rulings stated that exclusion based on physical differences for safety reasons is unacceptable; that a football league could not prohibit females because of a lack of evidence proving they were physically incapable of participating; and that for women to develop peak performance levels, they should be able to compete with men who play at higher levels. It is important to note that research can be sexist and biased in its methodology, chosen measurements, and conclusions, and all aspects of evidence must be considered carefully when drawing from research findings.

Potential Lawsuits Over Claims Of Sexual Harassment
In the wrestling case, the school board is making an assumption that coaching females is more of a liability risk than coaching males. However, this is not always the case.

In light of the cases involving Graham James and that of a Winnipeg man, both minor league hockey coaches convicted of sexually abusing young male hockey players, it is clear that male athletes are targets of sexual assault as are females. Because wrestling requires physical contact to effectively demonstrate a technique, the school board assumes that sexual assault allegations are more likely to occur. Yet sexual assault has occurred in non-contact sports. Excluding females from participating is punishing the female athlete by attempting to protect the coach. This can be viewed as "protection by exclusion" and the discriminatory effects are clear when applied analogously to racial discrimination.

In the case of Gantt v. The Clemson Agricultural College of South Carolina (1962), the court ruled that the College was not justified in excluding Gantt, a person of colour, from entering the college. The discrimination was based on the belief that the college was protecting Gantt from possible racist acts. Thus, discriminating against particular persons in order to protect them from possible victimization cannot be justified in certain cases.

Breach of Public Decency Through Sexual Contact
A review of the literature and research turned up no evidence correlating integrated sport teams to sexual activity. Also, a persuasive argument can be made about the fact that males wrestling each other has never been attacked as promoting sexual contact. This fact in itself demonstrates how the concept of public decency is subjective and arbitrarily dependent on the prevailing attitudes of a society and its courts. Therefore, the argument does not apply in this case.

In Support Of Integration
In this case, gender discrimination is not justified for several reasons. The females will be competing against themselves, weakening the school board's physiological argument. Second, the board does not have the right to discriminate against females in order to prevent potential lawsuits. Third, there is no evidence that sexual contact may be promoted by integrated wrestling, making this argument inapplicable.

In the landmark Blainey case, the court determined that the Ontario Hockey Association's justifications for excluding Justine Blainey from playing hockey on a male team were neither reasonable nor justifiable "in a free and democratic society". The case is similar to our wrestling case in three ways. First, integration is the issue. Second, both the school board and the Ontario Hockey Association are public entities. And third, hockey and wrestling are contact sports.

As the cases involving coaches and sexual abuse have illustrated, lawsuits cannot be directly attributed to the gender of athletes or whether the sport is contact or non-contact. Therefore, the threat of possible sexual abuse would not be enough to warrant overriding a constitutionally protected right or freedom. Finally, because there is no evidence that the integration of a wrestling team would promote sexual contact between the athletes, there is no justification for exclusion.

The fact that wrestling involves physical contact is incidental in this case. Based on these facts, the court would likely determine that there has been a violation of the Charter.

Jennifer Ryz was the world wrestling silver medallist at 53kg in 1996. Back to Joey's Wrestling Room.