By James Gill – Thompson Rivers University 3L JD Student
Issues regarding transgender students have recently been an area of significant discussion and debate. Early in 2013, California became the first American state to formally protect the rights of transgender students attending elementary and secondary schools in a number of ways. Specifically, Bill 1266 addresses a number of issues faced by transgender students during their schooling years including their ability to choose which restroom or locker room they use and, perhaps more relevantly, whether they compete in boys or girls sports .
Although California is among the first states to legislate on these issues, the rights of transgender athletes has long received much attention.For example, the 1977 case of Richards v United States Tennis Associationinvolved a transgender tennis player seeking an injunction against the United States Tennis Association which would prevent the Association from requiring the athlete to take a sex determination test before allowing her to compete as a woman.
In finding in favour of the athlete, the court found that such a requirement was grossly unfair, discriminatory, inequitable, and a violation of her human rights under the relevant state’s human rights laws. More recently, in 2013, a mixed martial arts athlete, Fallon Fox admitted to having undergone male-to-female gender reassignment surgery a number of years prior to competing professionally. Naturally, this sparked a series of heated statements, debates, and opinions regarding the use of hormones for hormone therapy, competitive advantages, and so forth. In this instance, however, the issue had been decided before it became public; the Florida State Boxing Commission licensed Fox, allowing her to compete in its jurisdiction, despite the non-existence of a codified transgender policy.
Prior to the Fox incident, the Association of Boxing Commission’s medical advisory board recommended the creation of a transgender policy as a pre-emptive attempt to address the increasing number of transgender athletes in sports. Indeed, the Association is among a number of governing bodies actively addressing the topic. The International Olympic Committee (IOC), National Collegiate Athletic Association (NCAA) and Canadian Collegiate Athletic Association (CCAA) have all adopted policies designed to address the participation of transgender athletes in sport, with the NCAA’s and CCAA’s approaches, arguably, being more moderate than the IOC’s.
With that said, in Canada, there has yet to be legislation introduced similar to that in California. In fact, even some of the basic provincial human rights codes have yet to include such progressive terms. For example, one simply needs to look at the Ontario Human Rights Codefor a leading example of inclusivity. Section 1 reads: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”
In contrast, the analogous provision in the British Columbia Human Rights Codefails to formally recognize gender identity, gender expression, or anything to that effect, other than ‘sex’: “A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.”
The above illustration does not seek to suggest that transgender athletes are unable to freely compete (consider Cory Oskam, a transgender high school student who was widely supported in undergoing a gender reassignment surgery and subsequently competing in a boys hockey league). Rather, it seeks to highlight some differences and suggest that perhaps the time has come for Canadians to follow some of the examples set by our southern neighbours, namely to formally recognize and protect the right of transgender athletes to compete freely.
Bill 1266 comes into effect in January 2014. Thus, in a matter of months, the sporting community will be able to assess how well the law is received and how effectively it is implemented. Regardless, it ought to be seen as a forward thinking example of the recognition of the right of transgender athletes to compete freely.