Elaine Craig defends recent decisions by the Law Society of Upper Canada and the Nova Scotia Barristers’ Society to refuse accreditation of Trinity Western University’s law degree program.
All student and staff applicants to Trinity Western University (TWU) are required to sign a Community Covenant pledging not to engage in same sex sexual intimacy. This covenant means sexual minorities could only attend TWU at considerable personal cost to their dignity and sense of self-worth. According to the Supreme Court of Canada, imposing this kind of personal cost constitutes discrimination on the basis of sexual orientation.
All student and staff applicants to TWU are required to sign this covenant pledging not to engage in same sex intimacy. On April 11, 2014, the Law Society of British Columbia accredited TWU’s law degree program despite the university’s formal policy of exclusion on the basis of sexual orientation.
Later that month, the Law Society of Upper Canada (LSUC) and the Nova Scotia Barristers’ Society (NSBS) refused to approve that same program because of concerns regarding the institution’s discriminatory admissions policy. Law societies in several other provinces have yet to make a decision on accreditation. In order for TWU law graduates to gain entry to the practice of law in each province through the same process as law students from fully accredited Canadian law schools, the university’s program must be approved by each of the province’s respective law societies.
TWU has announced its intention to initiate legal proceedings in Ontario and Nova Scotia to challenge the decisions of the law societies in those provinces. When the courts review the decisions of the LSUC and the NSBS, the central question will be: did these decision makers secure a reasonable and proportionate balance between their statutory objectives and the constitutionally enshrinedvalues of equality and freedom of religion? The answer is yes.
In deciding whether to approve TWU’s proposed law degree, the LSUC and the NSBS were required to balance freedom of religion and equality. The LSUC and the NSBS were not asked whether they approve of TWU’s beliefs, but rather whether they could accredit an institution with TWU’s discriminatory practices.
As the NSBS emphasized, TWU and its graduates are free to believe and preach whatever they choose regarding the immorality of same sex intimacy. In terms of practices, they are free to pursue the study of law. They are free to educate lawyers who can gain entry to the legal profession through channels other than attendance at an accredited institution. And they are certainly free to abstain from engaging in practices involving same sex sexual intimacy. Freedom of religion should protect these practices.
However, the NSBS and the LSUC refused to extend freedom of religion to the protection of formal discriminatory hiring and admissions practices. This constitutes a reasonable limit on freedom of religion. As the Supreme Court has noted, the freedom to hold beliefs is broader than the freedom to act on them.
It is reasonable for a law society to question whether fundamental aspects of an accredited Canadian legal education can be adequately taught in a setting of institutionalized discrimination. Indeed, in making their decisions the LSUC and the NSBS had before them a report from the Approval Committee of the Federation of Law Societies indicating concerns that the underlying beliefs reflected in TWU’s Community Covenant may preclude the appropriate teaching of equality rights and the ethical obligation not to discriminate.
In addition, it was reasonable, if not necessary, for the LSUC and the NSBS to consider whether TWU’s hiring and admissions policies violate human rights legislation in Ontario and Nova Scotia. The majority of provinces do not have religious exemption clauses identical to the one found in British Columbia’s human rights legislation. As such, it is incumbent upon regulators of the legal profession to consider whether TWU’s policies would be unlawful in their province.
For example, the Nova Scotia Human Rights Act does not create an exception for the student admissions policies of religiously-based university programs. In making its decision, the NSBS had before it a legal opinion from the Nova Scotia Human Rights Commission concluding that TWU’s policy was unlawful in Nova Scotia.
Finally, the LSUC and the NSBS decisions to reject accreditation strike a reasonable balance between freedom of religion and equality because approval would risk further stigmatizing an historically disadvantaged minority. This would have a significant adverse effect on the social status of gays and lesbians. It is reasonable for a law society to conclude that it is in the public interest to place a limit on religiously-based discriminatory actions in an effort to avoid this adverse effect on the social status of a vulnerable minority.
Despite assertions to the contrary by TWU, an institution that prohibits same sex sexual intimacy, and that requires its students to police one another’s covenant not to engage in gay sex, is not a place that welcome gays and lesbians. The decisions of the LSUC and the NSBS reflect a just and proportionate balance between freedom of religion and equality. The legal profession in these provinces should be proud of the work done by their chosen regulators.
Elaine Craig is an assistant professor at Schulich School of Law at Dalhousie University. She is the author of “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program.”
This blog is a condensed version of her forthcoming article “TWU Law: A Reply to Proponents of Approval”.