A human-rights hearing heard final arguments Thursday in the case of twin sisters who want to play on the boys hockey team at their Winnipeg high school.

Amy and Jesse Pasternak, 17, are challenging a Manitoba High Schools Athletics Association (MHSAA) policy requiring female athletes to play only on teams of girls — and boys only on teams of boys — if teams for both genders exist at a school.

Twins Jesse (right) and Amy Pasternak attend a Manitoba Human Rights Commission hearing in Winnipeg, Monday, June 19.
(Marc Gallant/ Winnipeg Free Press/ Canadian Press)

In her final argument, Sarah Lugtig, counsel for the Manitoba Human Rights Commission, said the sisters simply want is to be judged on their individual merit.

Lugtig described the evidence presented by the MSHAA as subjective and based on a double standard that requires the sisters, as girls, to be willing to play on the weaker girls team and help the female players develop their skills — something Lugtig said isn't expected of the boys.

But Victor Bargen, the lawyer representing the MHSAA, denied this, saying strong male hockey players are also expected to help the weaker players on their teams, describing it as what teamwork is all about.

Bargen also said more opportunities exist for female high-school hockey players, pointing out that girls are allowed to play both high-school and minor league hockey, while male players must choose one or the other.

The teens told the hearing they would not improve their hockey skills on the girls team at West Kildonan Collegiate, which they described as a "joke." Since they were shunted from the school's boys team in 2004, they have played in neither high-school nor community hockey leagues.

The sisters are seeking damages of $4,000 each, as well as one-on-one coaching sessions and hockey-school tuition.  They also want the MHSAA to strike its policy regarding cross-gender sports participation.

Lugtig said it's not unusual for complainants in human rights cases to request remedies "to deal with that intangible loss or harm that happens to us when our rights are infringed."

Bargen called the request for remedies "an audacity."

"The evidence shows that they chose not to avail themselves of the very thing they request in their remedy," he said.

Physiology, philosophy called into play

Over the past two weeks, 19 witnesses — including elite athletes, coaches and scouts — were called to testify at the hearing, most by the athletics association.

Some of those witnesses told the hearing that it would be a mistake to allow the teens to play on the boys team, saying it would set back women's sports. Others argued that the girls would not be able to hone their skills while playing with boys.

"It comes down to physiology," Kathy Berg, director of the high-performance female hockey program in Calgary, told CBC News.

"A 17-year-old girl simply doesn't have the strength, the power and the size of a 17-year-old boy. So in our professional opinion, we don't think that her skills will develop at a level they might if they play against a girls team the same age."

Others said the athletics association's policy of banning cross-gender play is discriminatory. Justine Blainey and her mother made that argument in Ontario in the 1980s when Blainey, then 11, was not allowed to play on a boys hockey team.  The Supreme Court of Canada ruled in Blainey's favour after a four-year battle.

"The majority of women don't want body contact or to be on a boys team," Blainey told CBC News. "However, we deserve the opportunity to try, to have a choice based on our skill and our talent, not based on our gender."

Lawyers for the MSHAA say sports at that level should be about participation, not about merit or the development of elite athletes.

The adjudicator in the case, Lynne Harrison, is not expected to make a ruling until August.

For the Pasternak sisters, who will enter Grade 12 in September, Harrison's decision will affect their last chance to play high-school hockey. The twins say they will not speak publicly on the matter until the decision is handed down.

High-school administrators across the country are also keeping a close eye on the Manitoba proceedings, the outcome of which could change the way they deal with their sports teams.