Ski jumpers had their hopes of competing in the 2010 Winter Games dashed last week when a last ditch effort to find the Vancouver Organizing Committee (VANOC) guilty of discrimination under the Charter of Rights and Freedoms was denied by the B.C. Supreme Court.
In a lot of ways it was a mixed ruling from Supreme Court Justice Madam L.A. Fenlon, supporting many of the plaintiffs' claims. For example, in her Reasons for Judgment she upheld the ski jumpers' opinion that their exclusion was discriminatory, while also exonerating VANOC of any direct responsibility for that discrimination as a representative of the International Olympic Committee (IOC).
"The IOC made a decision that discriminates against the plaintiffs," wrote Fenlon. "Only the IOC can alleviate that discrimination by including an Olympic ski jumping event for women in the 2010 Games."
To date the IOC has shown no interest in reversing its position on women's ski jumping. In previous statements the IOC said it would not consider women's ski jumping for 2010, but would look at the sport again for possible inclusion in the 2014 Winter Games. The IOC - and the sanctioning International Skiing Federation (FIS) - argued that women's ski jumping was not developed enough in terms of the number of competitors or nations competing for inclusion in the Olympic program, and lacked the requisite history in terms of World Cup and World Championships.
Justice Fenlon attacked those rationales, pointing out that the IOC had ignored its own criteria before. She also noted that men's ski jumping itself falls short of the IOC's criteria but is still included in the Games as an Olympic tradition.
While the number of women and nations competing in ski jumping is lower than the number of male competitors, Justice Fenlon also agreed with the plaintiffs' argument that the IOC's decision to exclude the sport from the Games is partially responsible for the low numbers, as well as a long-held prejudice in the industry against women ski jumping. FIS holds partial responsibility, she added, because the organization sanctioned fewer women's international events than men's events that could have helped the sport meet its criteria for 2010.
Justice Fenlon also found that VANOC is a de facto government agency, despite VANOC's arguments that it is a private entity, and therefore the organization is subject to the Charter of Rights and Freedoms - including a provision that would make it illegal for government to fund a facility that would exclude athletes based on gender.
However, Justice Fenlon was also satisfied that VANOC acted in good faith on the part of the ski jumpers and laid the discrimination entirely at the feet of the IOC.
"The simple fact is that only the IOC may grant the imprimatur of 'Olympic,'" Justice Fenlon wrote, adding that VANOC "did not make the decision to exclude women's ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it...
"I acknowledge that there is something distasteful about a Canadian government activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC's conduct that is challenged here."
The ruling came as a blow to the 16 female ski jumpers that were part of the discrimination suit against VANOC, as well as dozens of other jumpers who had pinned their hopes on the outcome of the lawsuit.
Deedee Corradini, the former mayor of Salt Lake City and a champion of women's ski jumping, said they were not conceding anything yet and were in discussions with lawyers over launching an appeal. She expects to make an announcement by the end of this week.
"We're on the right side of this issue, and we just have to keep fighting because these women are worth fighting for," said Corradini in an interview with Pique on Monday.
"The preliminary indications are that (an appeal) is something we should seriously consider," Corradini added. "We got a lot of what we asked for. We got the discrimination issue out there, and it was huge for us to get the Justice to say that because we've been saying that for a long time and to have it confirmed is a huge moral victory for us.
"(Justice) Fenlon also said that VANOC is an extension of government and is subject to the charter, and that is very significant but it didn't quite get us to the last step, that very critical hurdle to say that VANOC has to allow women to jump along with the men."
Corradini says that the women are only asking for one event, and believes that women's ski jumping can be accommodated at the Games until the last minute. It fits in the schedule, she said, and there is still an opportunity to get athletes into the athletes' village.
"We would certainly move quickly if we were going to appeal, and we would ask for it to be expedited... because of the urgency and timing," she said. "We would certainly hope and expect, with VANOC having known this was a possibility for a long time, that they would have some kind of contingency plan in place for women's ski jumping."