“In the end, we will remember not the words of our enemies, but the silence of our friends.” -Martin Luther King Jr.
On April 11, 2014, the B.C. Law Society approved accreditation to a proposed new law school operated by Trinity Western University (TWU), thereby permitting TWU law graduates to practice law in B.C. Since this decision, the Law Society in Ontario has rejected accreditation of TWO, while the Law Society in Nova Scotia has only given a conditional accreditation (i.e. if an offending clause of its covenant is revised). In B.C., Michael Mulligan, Q.C., a criminal defence lawyer, took immediate steps to trigger a special general meeting of the B.C. Law Society to reconsider its decision to grant accreditation. To do so required the signature of 5% of B.C. practicing lawyers (approximately 550 signatures). As soon as I received Mulligan’s email, I sent in my signed form and sent it to Mulligan. In the end, Mulligan exceeded this requirement (in about one week) when he delivered over 1300 signatures.
Why is there this great resistance to the accreditation of TWU as a law school in B.C. and other parts of Canada? The short answer is that the policy and admission process used by TWU is viewed by many to be discriminatory as against the LGTBQ community. In order to attend at TWU, its students are required to sign a covenant prohibiting “intimacy that violates the sacredness of marriage between a man and a woman”. If they do, it is grounds for expulsion.
TWU v. BCCT 2001 Decision
Our Charter of Rights and Freedoms (the Charter) explicitly prohibit discrimination based on sexual orientation, along with other protected factors such as sex/gender, race, and religion. But, not everyone is constrained by the Charter. The government and similar public entities must act in accordance with the Charter, whereas, TWU is a privately funded Christian university that educates its students with a Christian world view. TWU has staunchly refused to revise its covenant to remove the offending clause. TWU is of the view that being required to do so would be an infringment of its right to its freedom of religion. On the face of it, there are two conflicting rights butting heads: on the one hand, the right to express one’s freedom of religion and on the other hand, the right to be free from discrimination on the basis of sexual orientation.
This battle was fought previously when the B.C. College of Teachers (BCCT) refused to approve TWU’s teacher’s program, on the basis that TWU appeared to follow discriminatory practices. This legal battle was taken all the way to the Supreme Court of Canada (SCC). In 2001, the majority found that the BCCT’s decision to refuse approval was unfair. In balancing the two rights, the court wanted evidence that the exercise of TWU’s religious freedom would have a detrimental impact on the public school system. As there was no evidence that a graduate from TWU’s teacher’s program will treat homosexuals unfairly, the court found that the BCCT’s refusal to approve was wrong. This TWU v. BCCT decision appears to have greatly influenced many of the benchers of the B.C. Law Society and pushed them towards TWU’s accreditation.
Many benchers struggled with this decision; stating that they personally disagreed with the covenant but felt bound to follow the TWU v. BCCT decision. 13 years have now passed since TWU v. BCCT. Some people have opined that TWU v. BCCT is determinative of the issue faced by the B.C. Law Society, while others say otherwise. And still others state that our society has changed and a balancing of the two rights may lead to a different result today. It seems that these decisions relating to TWU’s law school accreditation is bound for another legal battle – possible another round at the SCC.
The Public Interest
I do not pretend to have any particular expertise in this area. I only write from my own personal perspective and my own thoughts to hopefully encourage a frank discussion on what should be the right thing to do, under these circumstances. Put simply, I think that the B.C. Law Society, a public entity that makes decisions to protect the public interest, should deny accreditation of TWU’s law school. To be clear, I am not stating that graduates of TWU are more likely to discriminate against homosexuals as a result of attending at TWU – I don’t see how one could measure this objective and accurately on a graduate by graduate basis.
My objection to TWU’s accreditation is as follows. In granting TWU accreditation, the B.C. Law Society is seen to be giving public endorsement to TWU’s practice of discriminating against members of the LGTBQ community and, further, granting legitimacy, in the public sphere, to TWU’s Christian view that homosexuality is wrong. This appearance of public endorsement is not in the public interest. Worse yet, this is a detriment to our society’s gruelling, long-fought battle to recognize the human rights of all members of the LGTBQ community and their right to be treated equally. We have since moved away from the view that people in the LGTBQ community are mentally sick and/or immoral beings. We recognize that they are entitled to be treated with respect and dignity. They are entitled to be treated equally and not be discriminated against based on arbitrary traits that they do not freely choose for themselves. As soon as TWU sought to operate a publicly accredited law school in B.C., it had moved sufficiently into the “public sphere” to require the public to assess TWU’s policies that were applicable to law students, to ensure that it did not discriminate against anyone in violation of our human rights laws.
Harm Arising from Discrimination
This issue has truly impacted me on a very personal level. I have known what it means and what it feels like to be discriminated against based on my physical traits which I have no control over, at various points in my life. To be excluded or treated differently (because of my race and gender), no matter how hard I worked and no matter how much I accomplished, was painful and heartbreaking. It makes you question your own self worth and it all slowly chips away at your core and your humanity. I wish this on no one.
I do not pretend to know the experience of the LGTBQ community. But, I can greatly empathize with their situation and can only imagine the suffering that they go through as a result of being discriminated against because of one’s sexual orientation. It is well known that discrimination against homosexuals has caused significant harm. Their rates of depression and suicide are significantly higher. Although I don’t have the statistics, I would imagine that this is also true amongst lawyers in B.C. that are gay, lesbian, bisexual, etc. The B.C. Law Society decision to allow TWU’s accreditation in essence is an endorsement of anti-homosexual views/values, not just by B.C. Law Society but also by the members of the B.C. bar and the general public in which it aims to protect.
Balancing of Rights
Many point to the fact that the 2001 decision is a hurdle to remove accreditation. If the analytical framework that was articulated by the majority in TWV v. BCCT is the proper governing framework (which is up for debate), I propose that we should and need to take a broader view of harm that may arise from TWU’s discriminatory admission policies and the perception of the B.C. Law Society endorsement of the same. We cannot simply look at the narrow question of whether law graduates who attended TWU and signed the covenant will be more likely to discriminate against homosexuals in the delivery of legal services. We must look at the harm that will come to larger society, to the student body studying law, and the practicing lawyers of B.C., when anti-homosexual sentiments are or are seen to be endorsed by the public or on behalf of the public good. Homophobia has significant and long-lasting, negative effects on people. I imagine that there are lawyers who diligently work to discharge their obligations as lawyers, but cannot freely identify their true selves, for fear of reprisal, exclusion and outright rejection. This has a very real and concrete personal toll on people’s health and well being. This decision of the B.C. Law Society will do nothing to assist these lawyers.
In balancing the two rights, we must consider these harms done to the LGTB community against the harm of requiring TWU to remove the offending clause from its covenant. Alternatively, one could balance these two rights by having TWU exempt its law students from signing the covenant. The suggested changes for TWU do not require TWU to cease holding its Christian beliefs, it does not stop Christian students from attending TWU and does not prevent TWU from identifying themselves as a Christian school. It simply stops the mandatory endorsement of Christian values by law students who are at TWU because of their desire to become lawyers (i.e. not because of their desire to attend a Christian university). What TWU is doing is equivalent to a B.C. accredited law school in B.C. or Canada that allows attendance by all individuals, except Christians and every student was required to sign covenants denigrating Christian values prior to entrance. In such a situation, I would likewise oppose such a law school, not because I am Christian, but because such a policy (and accreditation) would publicly endorse discrimination against a religious group, in breach of the Charter.
I am not a member of the LGTBQ community, but this recent debate about how to balance two conflicting human rights feels intensely intimate, as if it was my personal battle. I feel a sense of moral duty to my colleagues in the legal profession (particularly those who are LGTBQ lawyers) to speak out against any conduct that is or could be viewed as state-sanctioned discrimination based on a trait protected under the Charter. I encourage my fellow lawyers to speak out, as well, to let the LGTBQ lawyers know that they are not alone. It’s taken so long for society to embrace these new attitudes of acceptance towards the LGTBQ community. In the words of an Ontario bencher John Campion, “I don’t think we should take even a millimetre of a step backward. We can’t do it.”
Note: I am lucky enough to live in a society and work at a law firm where I can openly defend my position in the manner as outlined above. Although I originally wished to publish my name with this article, a colleague of mine stated that it is difficult to separate your personal views from those of your law firm, when it is put into a permanent blog format. I agree that it would be unfair for the public to wrongly attribute to my firm what are truly my personal views about this current and divisive issue. As such, I have decided to distance my firm’s name from this article (by keeping my name anonymous) out of respect for my law firm.