May 03, 2024
By Ingrida Milkaitė, Marlies Vanhooren, Cathérine Van de Graaf, Pieter Cannoot, Eva Brems
In February, 2024 the Human Rights Centre [1] (HRC) of Ghent University in Belgium submitted a third party intervention (TPI) before the European Court of Human Rights (ECtHR or the Court) in the communicated case of Eva Hristova Obesnikova v Bulgaria (Application no. 20839/22), after being granted leave to intervene by the President of the Court’s Third Section.
Here, the Court is faced with the question whether a 17-year-old girl suffered discrimination in the enjoyment of her right to respect for her private life on the ground of her sex, contrary to Article 14 of the European Convention on Human Rights (ECHR or Convention) read in conjunction with Article 8 because she was not allowed to play football with boys of the same age when a girls’ team did not exist in her town.
In our submission to the Court, we provide a comparative analysis regarding the emerging trends concerning mixed-gender sports teams and insights from case law in other jurisdictions on this matter, advocate for the application of Article 14 ECHR in conjunction with Article 8 ECHR, delve into the methodology under Article 14 ECHR in cases concerning gender-based discrimination and invite the Court to interpret the ECHR in alignment with the United Nations Convention on the Rights of the Child principles to effectively protect children’s rights in matters concerning them.
This case revolves around a 17-year-old girl’s complaint against the local authorities’ denial of her enrolment in the appropriate age-group (16+) football team, solely because of her gender. The refusal, she argues, violated her right to private and family life by discriminating against her on the basis of sex.
Previously, the applicant had been an active and successful member of a local all-girls football team until she reached 16. She underwent medical evaluations confirming her eligibility to participate in tournaments authorised by the Bulgarian Football Union (BFU). However, due to the absence of a girls’ team in her town for her age group (16+), she began training with the local all-boys team catering to 16 to 18-year-olds.
Despite the applicant’s demonstrated physical fitness and a commendable attitude during training, the BFU rejected her official enrolment in the boys’ team on the basis of her gender. The applicant pursued legal action domestically, alleging discrimination but her efforts were fruitless. In a definitive ruling, the Bulgarian Supreme Administrative Court concluded that there was no disparate treatment in the applicant’s case, thus no discrimination occurred. This was decided because there were no instances of other girls of the same age being registered in all-boys teams, making them an irrelevant comparator group. Having exhausted the domestic remedies, the applicant lodged her application with the Court in April 2022, arguing that she was discriminated against on the basis of her sex in the exercise of her right to private life.
Mixed-gender football teams are gaining traction in several Council of Europe (CoE) countries, challenging the traditional notion of single-gender teams as the sole norm. This shift reflects a commitment to equal access to sports, exemplified by jurisdictions such as Canada and the US, where mixed-gender teams are embraced to combat gender discrimination and promote inclusivity. This trend was also highlighted at the Tokyo 2020 Olympics, where 18 mixed-gender events across various sports took place, including archery, athletics, and tennis. International Federations in canoe, rowing, shooting, and weightlifting have further emphasised gender balance.
Germany’s progressive approach in football mirrors this movement, with innovative measures allowing girls to register concurrently with both girls’ and boys’ teams, addressing concerns about long-distance travel and its impact on girls’ (school) schedules and private lives. Similarly, England and the Netherlands have adjusted age limits for mixed teams. These efforts align with Denmark, Lithuania, and Norway’s initiatives predating 2016, showcasing a growing push towards gender inclusivity in football. In the US and Canada, girls are encouraged to try out for and participate in boys’ teams under equal conditions, especially when separate girls’ teams are unavailable. There, the selection is based solely on abilities, skills, and suitability for the team, ensuring fair treatment regardless of gender.
Monitoring the Football Association’s (FA) process of raising age limits for mixed teams reveals a shift towards viewing girls as players first, rather than through a gender lens. FIFA’s recent embrace of a comprehensive human rights framework, emphasising gender equality, further underscores this commitment. Additionally, the International Football Association Board’s revision of the Law of the Game supports the quest for equality between men’s and women’s football, eliminating the notion of separate categories and affirming that ‘women’s football is no longer a separate category and now has the same status as men’s football.’
Traditional justifications for segregating sports by gender, such as safety concerns and physical differences, have faced scrutiny as girls and women demonstrate their capability to contribute to mixed teams and excel in the sport.
One rationale often cited for segregating male and female players in sport revolves around safety concerns, stating that it might be unsafe for women to compete against men due to potential injury risks, particularly considering the average size difference. However, this perspective is paternalistic, as it fails to express similar concerns for injury-prone or lighter male players, nor does it consider banning male players from sports for those same reasons. In the US, legal cases have challenged this perspective a long time ago. A US court ruled against prohibiting high school women from playing varsity baseball, emphasising that denying female participation solely based on sex lacked substantial justification. It noted that female athletes, deemed physically suited to play baseball, faced similar risks as their male counterparts. Another US case invalidated a rule barring female high school students from soccer (known as football in Europe) due to safety concerns, noting the absence of established physical criteria for male players. The court emphasised the variability in physical abilities within both sexes and criticised the rule as ‘patronising protection’ for women, akin to placing them ‘not on a pedestal, but in a cage’, particularly bearing in mind that there was no evidence that less restrictive alternatives to total exclusion were even considered. The ruling highlighted the need for evidence-based justifications and consideration of less restrictive alternatives before resorting to total exclusion. Relatedly, the US case-law established that there is no reason to use sex as a proxy for physical ability as athletes’ capabilities are determined through individual assessments, irrespective of gender. When the criteria for the physical condition of male athletes are not clearly established – allowing any male student, regardless of physical condition, to compete – female athletes cannot be excluded from participating without evidence supporting the safety justification.
Another argument in favour of segregation relied upon by critics of mixed-gender sports relates to differences in physical characteristics and abilities between boys and girls. Research challenges these assumptions by revealing that size variations among boys often exceed those between girls and boys. Studies also indicate that middle school students of both sexes exhibit similar sizes and skill levels, with greater differences indeed observed within each sex than between them. While professional male players generally outperform females on average, this does not discount exceptional female athletes who match elite male performance in football. Top female players have in fact demonstrated excellence, even outperforming males in endurance tests. Court cases in the US have also affirmed that while not all female athletes may possess the skills, strength and stamina required for mixed-gender contact sports, some do exhibit the necessary physical ability. Consequently, US court rulings emphasise the need for empirical evidence to justify differentiation between boys and girls in sports.
Crucially, the gap in physical performance between genders cannot be solely linked to innate physical differences between them. To a great extent, it also stems from unequal opportunities for skill development from an early age. Due to ongoing disparities in training standards and opportunities for skill development, comparing male and female players on an equal basis is challenging and potentially unfair. Boys typically enjoy greater access to football training, leading to persistent discrepancies in skill levels that extend into adulthood. Research conducted with 10- to 11-year-old pupils in London illustrates how gender stereotypes inhibit girls from participating in football, affecting their training and future prospects in the sport. This way, deep-rooted gender norms grant boys ‘priority access’ to football and allow them to dominate the sport, further entrenching the inherent association between football and masculinity, while side-lining and marginalising girls from a very young age onwards. These differences are compounded by unequal funding for men’s and women’s football, necessitating increased investment in women’s football to help bridge the gap in training opportunities and level the playing field for male and female athletes.
From a children’s rights perspective, gender-based discrimination is strictly prohibited under Article 2 of the United Nations Convention on the Rights of the Child (UNCRC). Adolescence is a critical period where gender disparities intensify, particularly affecting girls who experience heightened discrimination, inequality, and stereotyping. Cultural norms often exacerbate these challenges, leading to limited opportunities for sport as well as disparities in health and life satisfaction indicators compared to boys – a gap that tends to widen with age. Adolescents’ right to freedom of association (article 15 UNCRC), encompassing recreational and sports activities, must be fully upheld, ensuring safe spaces for both girls and boys of varying ages. Leisure and recreation are essential for adolescents’ best interests and development, fostering their sense of identity, autonomy, and participation. Preventing interferences with children’s rights to rest, leisure, play, and recreational activities (article 31 UNCRC) requires non-discriminatory access to all recreational activities, including sports, irrespective of gender or age.
The Council of Europe Strategy on the Rights of the Child highlights the need to combat gender discrimination and promote equality between girls and boys as essential goals. Persistent harmful gender stereotypes can impede the fulfilment of individual needs, particularly for girls who face heightened barriers and discrimination in accessing and enjoying their human rights compared to boys. Girls’ exclusion from sports affects their lives detrimentally, as early engagement in recreational activities can profoundly impact their futures, including potential professional sports careers. The Council of Europe’s commitment to inclusive policies aligns with the principles of the UNCRC, emphasising accessible and equal opportunities for all children to participate in sports and recreational activities for their overall well-being and development. In this context, we invite the Court to interpret the ECHR in light of UNCRC principles to uphold children’s rights effectively.
Article 14 ECRH prohibits discrimination in the enjoyment of the rights and freedoms outlined in the Convention. While ancillary in nature, its applicability hinges on an issue falling within the scope of an autonomous right, without necessitating a violation of the latter. We therefore request the Court to determine that (girls’) participation in amateur sports falls within the scope of Article 8 ECHR as it encompasses essential elements of the right to respect for private life.
Research highlights the numerous benefits of sports for physical and mental well-being, particularly among young people. The UN High Commissioner for Human Rights emphasises the importance of sport in building essential skills such as leadership and teamwork. Furthermore, the Court recognises that Article 8 protects the right to personal development and a ‘private social life’, including activities taking place in a public context. While health is not explicitly guaranteed under the Convention, the Court has acknowledged that Article 8 encompasses the protection of life and health, both mentally and physically. Given the direct link between physical activity and health, there is a strong argument for including participation in amateur sports within the protective scope of Article 8 ECHR.
The UN High Commissioner for Human Rights has recently argued that sociocultural gender norms continue to hinder women and girls from participating in sports. As highlighted by the Grand Chamber, negative stereotyping can significantly impact individuals’ feelings of self-worth and self-confidence. Negative stereotypes about women’s bodies and physical capabilities impact their sense of identity and self-confidence, affecting their private life. Therefore, the intersection of Articles 8 and 14 ECHR provides a framework for addressing discrimination in girls’ participation in amateur sports, highlighting the importance of upholding human rights principles (also) in sports.
Even though Ms. Obesnikova completed the tests required to play in the local football team of her age, she was nonetheless denied admission by the Bulgarian National Football Association because the only age-appropriate team that existed at the time was a boys’ team. As such, we submitted that she was treated differently than other football players her age on the basis of her gender. The fact that there were no girls her age playing football in a boys’ team only underscores that the difference in treatment was based on gender. Arbitrary application of the Convention standards limits the margin of appreciation for national authorities and open the space for the Court to intervene.
As explained by Janneke Gerards, the Court views gender as ‘an almost unjustifiable’ criterion for differentiation. Consequently, the Court requires ‘very weighty reasons’ underlying any differentiation in cases in which gender stereotypes play a role and focuses its attention on this evaluation while assuming comparability. The justification for gender separation in sports is often based on the need to provide fair opportunities to female athletes. However, this case clearly demonstrates that while such a general rule aimed to protect female athletes, it resulted in denying that opportunity to a concrete girl. The Court has repeatedly stated that its task is concrete review – the examination of human rights conformity of the concrete situation brought before it. We respectfully suggest that if the application of a general rule results in a prima facie violation in a concrete case, the Court should also examine the conformity of that general rule (abstract review). If the concrete review would result in a violation, but the abstract review results in human rights conformity, the discrepancy lies in the absence of an exception. We would therefore suggest that if an exception does not undermine the purpose of the general rule as such, the abstract human rights conformity cannot overrule the lack of a legitimate aim or the disproportionality of its concrete, negative impact. Moreover, when it is considered that an exception is required, its scope can be determined by the consideration that the purpose of the rule should not be undermined.
Returning to the general rule at hand, its purpose is to ensure fair opportunities to female athletes. Yet, in any concrete situation, this depends on the existence of qualitative training, skill development opportunities and concrete options for girls and women from childhood onwards. Especially for girls of school age, the proximity of training facilities and clubs is an important element. If these options do not exist, segregation defeats its purpose and deprives female athletes of opportunities. It is very hard to identify a legitimate aim for denying female football players in this situation the access to training and competition options that boys and men do have. Even if physical protection could be seen as constituting a legitimate aim, a ban would still be prima facie disproportionate and less intrusive measures need to be considered.
If girls and women were provided with equal access to qualitative training, competition, and skill development opportunities, it could potentially alter the current situation. It could be argued that segregating based on talent might compromise fair opportunities for women by jeopardising the sustainability of female clubs and competitions. However, to avoid perpetuating stereotypes, such assertions would need to be empirically verified. Hence, the parameters of any exception to the standard practice of gender segregation should be guided by the underlying purpose of that practice.
This case and the context of mixed-gender teams in sports necessitate questioning and challenging stereotypical notions of gender differences and evaluating players based on their skills and abilities, not stereotypes. International developments clearly underscore the importance of evidence in supporting differentiation between boys and girls in sports. Anecdotal or stereotypical perceptions of physical disparities between genders are insufficient, requiring concrete evidence to support any potential differentiation. Therefore, we respectfully invite the Court to be mindful of and recognise the pervasive influence of gender stereotypes on women’s and girls’ rights, in the short and long term. Exclusion from mixed-gender teams can have harmful consequences, perpetuating stereotypes rather than promoting equal and fair competition. Stereotyping can limit women’s opportunities, especially in sports, where unsolicited protection can hinder their individual agency and participation in chosen sports – which is demonstrated by the applicant’s experience in this case. As noted by Justice Brennan and reiterated by Ruth Bader Ginsburg – such differential treatment on the basis of sex perpetuates an attitude of ‘romantic paternalism’ which leads to caging women from an early age onwards, rather than elevating them. In this context, our comparative findings emphasise the need to offer women and girls the opportunity for inclusion in mixed-gender sports, without implying a mandatory requirement for constant mixed-gender participation.
The full third party intervention in the case of Obesnikova v Bulgaria can be found on the website of the Human Rights Centre.
[1] For the Human Rights Centre, the team consists of Eva Brems, Pieter Cannoot, Ingrida Milkaite, Cathérine Van de Graaf, Marlies Vanhooren.
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