SCC Rules on Trinity Western University’s Proposed Law School

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In a long-awaited decision, the Supreme Court of Canada has ruled that the decision of the Law Societies of British Columbia and Ontario to deny accreditation to Trinity Western University (TWU)’s proposed law school is reasonable, and is a proportionate balancing of Charter-protected rights.

This case originated when the Law Societies of BC and Ontario voted to deny accreditation to TWU’s proposed new law school due to the code of conduct they require all students and staff to sign in order to attend, known as the Community Covenant. Based on an Evangelical Christian understanding of morality, the Covenant, among other regulations, decreed that sexual activity was only permitted in the context of a heterosexual marriage—a provision that the Law Societies (as well as the CCLA) recognized as discriminatory to LGBTQ students.

Though a nuanced and complicated case, the legal debate largely centers on how to appropriately balance and reconcile the right to freedom of religion and freedom from discrimination on the grounds of sexual orientation. While TWU argued that the Law Societies’ denial of accreditation was a violation of their freedom of religion and freedom of association, the Law Societies argued that accreditation would amount to condoning and endorsing the systemic discrimination against LGBTQ students.

In today’s decision, the majority acknowledged the impact this would have on freedom of religion. Justice Abella, writing for the majority, explains that denying accreditation to TWU’s law school does result in “a limitation on the right of TWU’s community members to enhance their spiritual development through studying law in an environment defined by their religious beliefs in which members follow certain religious rules of conduct.”[1] However, the majority concludes that this limitation is minor—first, because the mandatory covenant, around which this case centers, is “not absolutely required for the religious practice at issue,”[2] and second, because while students have expressed their preference for studying law in a religious environment, this preference falls short of a necessity. [3]

Conversely, the majority argues that the limitation on equality rights for LGBTQ students would be significant if the proposed law school was accredited. Although TWU argued that increasing the number of available law school seats would expand opportunities for all students, the majority recognized that this expansion of opportunity would not impact LGBTQ students equally, as they would be ineligible for these additional seats without “deny[ing] a crucial component of their identity in the most private and personal of spaces for three years in order to receive a legal education.” (para 96).[4] Thus, even though TWU’s law school would increase the overall number of students able to pursue a legal education, Abella reasons that:

“[T]his does not change the fact that an entire law school would be closed off to the vast majority of LGBTQ individuals on the basis of their sexual identity. Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people. In short, LGBTQ individuals would have fewer opportunities relative to others.” [5]

Ultimately, the majority concluded that:

“The refusal to approve the proposed law school means that members of the TWU religious community are not free to impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSBC chose an interpretation of the public interest in the administration of justice which mandates access to law schools based on merit and diversity, not exclusionary religious practices. The refusal to approve TWU’s proposed law school prevents concrete, not abstract, harms to LGBTQ people and to the public in general. The LSBC’s decision ensures that equal access to the legal profession is not undermined and prevents the risk of significant harm to LGBTQ people who feel they have no choice but to attend TWU’s proposed law school. It also maintains public confidence in the legal profession, which could be undermined by the LSBC’s decision to approve a law school that forces LGBTQ people to deny who they are for three years to receive a legal education.”[6]

Today’s decision adds to the growing number of recent cases exploring the intersection between freedom of religion and freedom from discrimination on the basis of sexual orientation. As the fight for LGBTQ equality continues, and religious organizations stand firm in their doctrinal convictions, conflict will inevitably continue to arise over the proper balancing of respective Charter rights.

 

This blog post was written by a CCLA student. Opinions expressed do not necessarily reflect the views of the CCLA.


[1] Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 75.

[2] Ibid at para 87.

[3] Ibid at paras 88–89.

[4] Ibid at para 96.

[5] Ibid at para 95.

[6] Ibid at para 103.

Photograph by Ludovic Bertron at https://www.flickr.com/photos/23912576@N05/2942525739