Physical Activity and Sport Act, S.C. 2003, c. 2

When Parliament passed the Physical Activity and Sport Act in 2003, it replaced the Fitness and Amateur Sport Act of 1961 with what it described as legislation better adapted to contemporary realities. The Act established the framework under which Sport Canada funds national sport organizations, set out the Government of Canada's sport policy, and created the Sport Dispute Resolution Centre of Canada.

What the Act did not do — and what Parliament has never done in any subsequent amendment — is define what it means to be a female athlete in Canada. The word "female" does not appear in the Act's operative provisions. The word "male" does not appear either. The categories that make women's sport possible — the biological distinctions between male and female that justify sex-segregated competition — are nowhere to be found in Canada's primary federal sport statute.

This is the story of an Act whose silence on the most fundamental question in women's sport has allowed the policy framework governing female athletic competition to be determined by administrative guidance rather than democratic legislation.

What the Act Actually Says

The Physical Activity and Sport Act is a relatively brief statute. Its substantive provisions fall into three categories: the physical activity policy framework, the sport policy framework, and the establishment of the Sport Dispute Resolution Centre.

What the Act Does Not Say

What matters most for understanding women's sport is what the Act does not contain.

The Act does not define "female" or "male." In the context of sport — where sex-segregated competition exists precisely because biological differences between males and females create competitive disparities — this is not a minor drafting gap. It is the absence of the foundational definition on which all of women's sport depends.

The Act does not define "fairness" in competitive sport. Section 4(1)'s reference to "the full and fair participation of all persons in sport" is the closest the Act comes to addressing competitive integrity. But "fair" is never defined. Whether fairness requires sex-based eligibility standards, or whether it can be satisfied by gender identity-based standards, is a question the Act does not answer.

The Act does not address the female category in sport. The words "women's sport," "female category," or "sex-segregated competition" do not appear. The Act does not require that a female category exist, does not define who may compete in it, and does not authorize or prohibit any particular eligibility standard.

The Act has never been amended to address the conflict between sex and gender identity. When Bill C-16 added "gender identity or expression" to the Canadian Human Rights Act in 2017, Parliament amended several statutes. The Physical Activity and Sport Act was not one of them. No amendment has been introduced since to address how the Act's commitment to "the full and fair participation of all persons in sport" applies when a male-bodied athlete claims the right to compete in the female category based on gender identity.

The Founding Premise of Women's Sport

Women's sport exists because biological sex differences are real, material, and relevant to athletic competition. Males who undergo male puberty develop on average greater muscle mass, bone density, lung capacity, and cardiovascular efficiency than females. These differences are not erased by hormone therapy — World Athletics, World Aquatics, and other international federations have conducted extensive research confirming that male physiological advantages persist for years or indefinitely after testosterone suppression.

The female category in sport is not simply a category for people who identify as women. It is a protected competitive space created specifically for biological females, designed to ensure that female athletes have an opportunity to compete on a roughly equal playing field with others who share their biology.

Without a biological basis for the female category, the category has no principled foundation. It becomes something other than what it was designed to be — and the women who built their athletic careers in it, who devoted years to training to compete on a genuinely level field, are told that the definition of what they are competing in has changed without their input, without scientific justification, and without democratic accountability.

Canada's primary federal sport statute contains none of this. It contains no recognition that sex differences are relevant to sport. It contains no protection for the female category. It contains no definition that would ground an eligibility standard in biological reality.

The Legislative Gap and What It Permits

The Physical Activity and Sport Act's silence on sex-based eligibility does not mean that eligibility decisions are unregulated. It means they are regulated by administrative policy rather than law.

Sport Canada's position — reflected in internal guidance documents released under Access to Information requests — is that it has no official policy on transgender inclusion in sport. National sport organizations are encouraged to find "innovative, evidence-based solutions" that afford respect to transgender athletes while preserving fairness and safety for female athletes.

This is not a policy. It is an abdication. Sport Canada is funding 63 national sport organizations to the tune of hundreds of millions of dollars annually with no requirement that those organizations maintain any particular standard for who may compete in the female category.

The federal government's own internal documents acknowledge that Sport Canada assessed whether biology-based eligibility policies by organizations like Aquatics Canada "engage CHRA concerns" and concluded there was "no basis for considering" that they did — and then did nothing further. Acknowledging that sex-based eligibility is likely legal, and then failing to require it as a condition of funding, is a choice. It is a choice that places the fairness of women's sport at the discretion of each individual sport organization rather than in statute.

The Aquatics Canada Precedent

In 2022, Aquatics Canada voted to adopt the World Aquatics policy restricting the female category to athletes who have not undergone male puberty. World Aquatics had conducted a thorough review of the science and concluded that male physiological advantages in swimming are not eliminated by hormone therapy, and that a meaningful female category requires excluding athletes who experienced male puberty.

When Aquatics Canada adopted this policy, Sport Canada's internal guidance noted that there was "no basis for considering whether the provision of funding by Sport Canada to Aquatics Canada, or any NSO supporting a similar gender policy, engages CHRA concerns." In other words, Sport Canada's own assessment was that biology-based eligibility policies are likely legally defensible.

The federal government then did nothing. It did not make biology-based eligibility a condition of funding for other national sport organizations. It did not issue guidance to sport organizations about what eligibility standards are consistent with federal law. It acknowledged that sex-based eligibility is likely legal, declined to act on that conclusion, and left every other national sport organization to navigate the question independently.

This inconsistency is not accidental. It is the product of an Act that gives the federal government authority over sport without requiring it to take any particular position on what sport's most fundamental competitive category means.

What "Full and Fair Participation" Actually Requires

Section 4(1) of the Physical Activity and Sport Act commits the Government of Canada's sport policy to "the full and fair participation of all persons in sport." This phrase is used to justify both inclusion of transgender athletes in the female category and exclusion of males from the female category, depending on who is making the argument.

Neither interpretation is imposed by the statute. Neither is required by it. The phrase is broad enough to support almost any position, which means it supports none of them with any force.

What "full and fair participation" means for female athletes — athletes who, without a biology-based female category, have no meaningful category to compete in — is a question the Act has never answered. Females do not have "full and fair" participation in a sport system that allows males who experienced male puberty to compete in the female category. The fairness that matters for female athletes is fairness relative to their biological peers, not fairness relative to male-bodied athletes whose physiology developed under the influence of testosterone.

The Act's language is capable of protecting women's sport. It has never been interpreted to require it.

What Responsible Legislation Would Look Like

Parliament has had more than two decades to address the question of female sport eligibility in federal statute. It has not done so. A responsible amendment to the Physical Activity and Sport Act would address several questions the current statute leaves open.

1. First, a definition of "female" for sport purposes. The Act should define the female category in competitive sport by reference to biological sex — specifically, by reference to whether an athlete has undergone male puberty. This definition would be consistent with the approach taken by World Athletics, World Aquatics, and an increasing number of international sport federations, all of which have concluded on the basis of scientific evidence that male puberty creates physiological advantages that are not reversed by subsequent hormone therapy.

   
   

2. Second, a requirement that federally funded sport organizations maintain biology-based eligibility for the female category. The Act currently allows the Minister to facilitate the participation of under-represented groups in the Canadian sport system. It does not require that the female category — itself a space created for a historically under-represented group — be protected as a biology-based category. An amendment requiring that Sport Canada funding be conditional on maintaining a science-based female category standard would close the gap between federal law and the eligibility protections female athletes need.

   
   

3. Third, a definition of "fairness" that acknowledges biological reality. The Act's commitment to "the full and fair participation of all persons in sport" should be interpreted in light of the scientific evidence on sex differences in athletic performance. Parliament should make explicit that fairness in competitive sport requires recognition of biological sex as the appropriate basis for sex-segregated competition.

   
   

4. Fourth, a requirement for evidence-based eligibility standards. The Act could require that national sport organizations receiving federal funding adopt eligibility standards for the female category that are grounded in peer-reviewed scientific evidence about sex differences in athletic performance, rather than leaving those standards to be determined by advocacy-driven guidelines or gender self-identification policy.

None of this has happened. Parliament passed the Physical Activity and Sport Act in 2003, has amended it in minor procedural respects since, and has never used it to protect the female category in Canadian sport.

The Democratic Accountability Failure

Women's sport in Canada is governed by a patchwork of administrative decisions made by national sport organizations, Sport Canada funding guidance, and the positions of international sport federations — with no democratic foundation in statute. When female athletes ask who decided that males can compete in the female category, or who decided they cannot, the answer is: nobody voted on it.

The Physical Activity and Sport Act authorizes federal involvement in sport. It does not shape it. The Minister may take any measures considered appropriate. What "appropriate" means for female athletic competition is left entirely to ministerial discretion — discretion that has, for decades, been exercised without any requirement that it protect the competitive integrity of women's sport.

Alberta's Fairness and Safety in Sport Act, which came into force September 1, 2025, represents the first time any Canadian government has legislated biology-based eligibility for the female category in sport. Whatever one thinks of the specific mechanism Alberta chose, the principle it reflects — that female sport eligibility belongs in statute rather than administrative guidance — is correct. Parliament should have done this at the federal level before any province needed to.

Conclusion: The Act That Forgot to Define Women's Sport

The Physical Activity and Sport Act commits the Government of Canada to "the full and fair participation of all persons in sport." It does not define what fair means for female athletes. It does not define who is female for competitive purposes. It does not require that the female category be maintained on a biology-based standard. It has not been amended since 2017 to address the consequences of adding "gender identity or expression" to Canadian human rights law.

The women who compete in Canadian sport — who train for years to compete at national and international levels in a category designed specifically for biological females — are protected by a federal statute that does not mention them. Their competitive opportunities depend on administrative decisions made by Sport Canada and individual national sport organizations, without any legislative foundation requiring that those decisions reflect biological reality.

Parliament can fix this. The Physical Activity and Sport Act can be amended. The female category in Canadian sport can be defined in statute, grounded in science, and protected as a condition of federal funding. The question is whether Parliament has the political will to do what the evidence requires and what female athletes deserve: legislation that actually says what women's sport is for.