Is it Discrimination When Pregnant Athletes are Banned from Sport?

Pregnant Women Bans in Sport: Is This Discrimination and Why Does it Keep Happening?
The all time most popular blog post on my blog is, over a month after it was written, my op ed piece entitled "Slo-pitch National Bans Pregnant Women." This is a little bit surprising since the story was not breaking news (they have been banning pregnant women for years) nor an action that is unique to Slo-Pitch National (SPN). In fact, it seems as if most of the post readers come from internet searches that are asking whether women should play softball while pregnant. Although I am the first to admit that a blog written by an aspiring lawyer is not the place to get medical advice about what is and what is not safe to do while pregnant, this blog is the appropriate place to address the legal and ethical problems with banning all pregnant women from certain sporting events. 

So here we go. 

One of the first media sensations regarding pregnant women being banned from sports occurred in 2001 when Netball Australia banned pregnant women from playing in all levels due to concerns over injury and insurance. The decisions sparked criticism from doctors, athletes and women nation wide in Australia (where netball is a very popular sport). The decision was successfully challenged by Trudy Gardner who received $6750 for "hurt, humiliation and loss of match payments" when she was banned from playing netball while pregnant. Trudy was successful by challenging under the discrimination act. 

Trudy had missed only three games due to the pregnancy, but would have missed more had she not won a court injunction in 2001 that allowed her to play for the national netball team while pregnant. The discrimination case was not decided until 2003. Trudy was quoted after the hearing as saying that her court case was about the principle, not the money. 

The Age quotes Trudy as saying: 

"It's a great relief that it's all done, it's all over and hopefully for the better for netball. I'm not a person that will go out and push for money. I was just happy to get something from them and more so an apology. It has been difficult at different stages but now I've got Thomas to enjoy and, you know, just to get on with my life with my partner."

Trudy's case did more then set a precedent in the courts. The Australian Sports Commission prepared a report for the federal government of Australia that clearly stated that a ban on pregnant women playing sport could contravene anti-discrimination laws. It also found that the benefits of playing sport could outweigh the potential risks and that sporting mishaps are unlikely to harm an unborn baby. These guidelines for the Australian sport industry have been well received and there have been no high profile cases against Australian sports agencies since they have been released. 

Unfortunately for female pregnant athletes this court decision and scandal in Australia does not seem to have expanded across the globe. Countries that are generally know for being progressive when it comes to women's rights still have cases in which women are banned from participating in sporting events. 

In 2009, for example, a high school volleyball player in the United States was removed from her school's volleyball team after it was discovered that she was pregnant. The athlete, MacKenzie McCollum was a 17-year-old high school student from Texas. McCollum was at times barred from the team and when finally allowed to play saw dramatically reduced playing time even though the season was early in her first trimester and she had written support from her physician. The story received national news attention on ESPN and helped to raise the profile of pregnant women's rights. 

The problem in the United States has been addressed in some areas. The NCAA, for example, issued rules protecting female athlete from losing athletic scholarships after becoming pregnant. This occurred after athletes who were afraid of losing their scholarships were hiding their pregnancies from their schools. Now female athletes can work with their schools to develop training programs for them to use while they are pregnant that can allow the women to continue to play in a safe way (when their doctors deem it safe for them to do so). 

In Canada, it appears that there has been no government policy issued from Sport Canada providing guidance for national sport organizations and leagues regarding the legalities of banning pregnant women from competition. In my follow up post regarding pregnant women being banned from SPN, I wrote that pregnant women were welcome in various slo-pitch leagues across the country and the SPN seemed to be the lone discriminating offender. I also addressed the poorly publicised and unknown decision by the British Columbia Human Rights Tribunal that clearly ruled, in Duxury v. Gibsons Landing Slo-Pitch League [1997] B.C.H.R.T.D. No. 30, that the league's policy that prevented women from playing was discriminatory and that there was no reasonable bona fide justification for the discriminatory rule. The league's primary concerns were that the insurance they had purchased did not include coverage for pregnant women and that they were concerned that other players' performances would decrease by having pregnant women on the field. Interestingly, the league was affiliated with SPN so surely they are aware of the decision, even though the majority of Canadians do not. Also, it is interesting to note that other leagues at the time did have insurance that adequately covered pregnant women. 

The Tribunal in Duxbury v. Gibsons Landing Slo-Pitch League stated that: 

35 I can not, however, accept that an appropriate solution to the risk of litigation is to purchase insurance for some members that has the effect of excluding others on a prohibited ground unless there is no reasonable alternative. Ms. Lumsden testified that they looked into other insurance options. They considered joining softball B.C. [which is affiliated with Softball Canada mentioned above] but the cost was prohibitive. There is no other evidence on the relative costs of insurance. In this case, the evidence of the cost of non-discriminatory alternatives is too vague for me to conclude that there is no reasonable alternative to joining Slo-Pitch National for its insurance coverage.

36 The Respondent should be able to obtain liability insurance if it wishes to do so for bona fide reasons. Such coverage should include pregnant women, not exclude them as in this case. If the Respondent chooses discriminatory insurance then it or the insurance provider will need more compelling evidence than I have heard to demonstrate that such a discriminatory policy is reasonably justified.

37 I have concluded that the rule which prohibits pregnant women from playing in the Respondent's league is prima facie discriminatory. I have also concluded that there is not a bona fide and reasonable justification for that rule. Accordingly, I find that the complaint of discrimination on the basis of sex is justified.

This decision was made in 1997. Sport Canada has not clarified its position since this case and has not ensured that national sporting associations follow the decision. The Ontario Human Rights Commission has published a detailed document for members of the province of Ontario about discrimination and pregnancy but the policy does not directly discuss sports participation. The document does outline some exceptions for discriminatory conduct, one of which is a narrow exception for certain insurance policies. The report states that if an insurance policy differentially treats a women, that woman can challenge the policy and the insurance provider and the group who purchased the insurance option would have to show that the policy is "a sound and accepted insurance practice and that there is no practical alternative" a test that was established by the Supreme Court of Canada in Bates v. Zurich. The fact that several leagues and insurance policies do protect pregnant women would likely be evidence that such policies would not pass the test. 

What the cases outlined above all demonstrate is that the outright banning of pregnant women from participating in sport has repeatedly been found to be discriminatory. Why, then, do we have a story that breaks out every few years about another woman or group of women being banned from participating in sport? The easy answer, for me at least, is lack of education and lack of guidance. If the governing body for sport in a country makes a clear statement, like Australia did a decade ago, the national sport organizations and sport leagues in that country will be aware that their conduct is discriminatory. The insurance companies will also be on notice that their policies may also be discriminatory. Without guidance from the government agencies how do we expect sports organizations to know what to do? 

Adding to the problem is that within the leadership of most sports organizations there is a noticeable lack of women. Perhaps if there were more women on the board someone would speak up and say "Isn't this 'no pregnancy' rule not horribly discriminatory?" Have you ever seen men around a pregnant woman? Some of them are afraid to go within 10 feet of her. It is not surprising that men might be incredibly anxious about "letting" a pregnant woman participate in a sport. More women in the room would go a long way with dealing with the stigma. 

I continue to be incredible embarrassed that a sport that I am involved with is continuing to ban pregnant women from participating. I can only hope that one day they listen to the voice of reason, their female members and, ultimately, the law and allow pregnant female softball players to continue to play. In the meantime, if you are a pregnant female softball player in Canada and you are interested in continuing to play during your pregnancy, there are options for you. Don't let SPN get in your way.

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