This month British Columbian lawyers are voting in a binding referendum on whether to accredit Trinity Western University’s law school.
The controversy arises because TWU requires students to sign a covenant that prohibits sex outside of heterosexual marriage, thereby discriminating against LGBTQ applicants.
Some background (if you know the background, feel free to skip ahead three paragraphs): TWU submitted a proposal to establish a law school in 2012, which the Ministry of Advanced Education accepted. In order for TWU law graduates to practice law in B.C., TWU needs to be accredited by the Law Society of British Columbia. The Law Society “benchers” (made up of lawyers who act as the board of directors for the Law Society) voted in favor of accrediting TWU, many noting how distasteful they found their decision.
Michael Mulligan, a lawyer practicing in Victoria, gathered enough signatures from lawyers to force a special general meeting on the issue. In June, B.C. lawyers overwhelmingly voted in favor of reversing the decision to accredit TWU (3,210 to 968). As a result, the Law Society decided to hold a binding referendum on the issue, which brings us to today. If one-third of lawyers vote in the referendum and two-thirds vote not to accredit TWU, then the Law Society will not accredit TWU.
The other law societies in Canada have grappled with whether to accredit TWU. Ontario and Nova Scotia voted not to accredit TWU. New Brunswick accredited TWU but their lawyers followed the example in B.C. and voted at a special general meeting to withdraw the accreditation. The Alberta, P.E.I., Nunavut, and Saskatchewan law societies voted to accredit TWU. Newfoundland put the question in abeyance to likely be revisited after the courts have reviewed the issue.
Many people have celebrated the B.C. Law Society’s decision to hold a vote on whether to accredit TWU.
Personally, while I am not displeased with the decision because I have faith that lawyers will do the right thing and duplicate the vote from the special general meeting, the vote raises important questions about whether equality rights should be up for a vote, particularly when they involve historically oppressed minorities. Modern democracies have a constitution that enshrines basic rights and limits the authority of decision makers in order to prevent minority rights from being trampled on. In my view, some things simply should not be up for a vote—LGBTQ equality protections are one of them.
I spoke with Sharon Matthews, a bencher from the B.C. Law Society, about her perspective. She is one of the few benchers who has been outspoken against accrediting TWU because of its discriminatory covenant. Matthews explained that her opposition arises from the fact that the covenant is coercive by forcing LGBTQ students to deny an essential aspect of their being. Fellow students and faculty are also supposed to report known transgressions.
To Matthews, the covenant does not raise a conflict between freedom of religion and equality rights because the covenant does not engage freedom of religion:
I respect freedom of religion concerns. But I do not see anything about the covenant that engages freedom of religion. If TWU wanted to believe and express a statement of values about marriage—I would not agree with it, but that is different than a coercive covenant. The right that TWU is seeking to protect is a right to discriminate, not to express their religion.
Matthews says that the Law Society asked TWU if they would consider amending the covenant but TWU firmly declined.
One of the key reasons that many benchers reluctantly voted to accredit TWU is because of an earlier and similar case TWU v. BC College of Teachers, a 2001 decision of the Supreme Court of Canada. The B.C. College of Teachers did not accredit TWU because of its discriminatory policies and the Supreme Court of Canada reversed the decision.
Much has changed since the first TWU case. Canadian society has become more alive to LGBTQ issues and made progress in reversing ignorant, hateful views about the LGBTQ community. We have 13 years of Charter jurisprudence that has evolved the legal tests for religious and equality rights.
Our constitution has long been interpreted as capable of adapting to the changing times. The “living tree doctrine”—which is deeply entrenched in Canadian constitutional law—holds that the constitution is organic and must be read in a broad and progressive manner so that it adapts to changing times. In of Edwards v. Canada (Attorney General) (widely known as the Persons Case), the court used the living tree doctrine to find that women were in fact “persons” capable of sitting in the senate:
The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.
In looking at the Supreme Court of Canada’s decisions concerning LGBTQ Charter rights, the evolution is apparent. In 1995, the court in Egan v. Canada found that the Old Age Security Act did not discriminate on the basis of sexual orientation even though it excluded benefits for same-sex couples. In describing the objective of the Old Age Security Act, four of the Justices wrote that it was:
… firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.
If Egan were heard today, the Supreme Court of Canada’s reasoning would arguably be different. The outdated view that marriage is by nature heterosexual is quickly fading in Canada. In fact, the Supreme Court of Canada’s tone had changed even in 1999 when in M. v. H. the court ruled that Ontario’s Family Law Act discriminated against same sex couples by distinguishing between same sex spouses and heterosexual spouses when dealing with spousal support.
Matthews believes that the court would likely now support a Law Society decision not to accredit TWU but she recognizes that the precise legal answer is not wholly clear—it rarely is in law. Matthews believes that this ambiguity offers the benchers an opportunity to have open minds and lead the profession where it clearly wants to go by not tolerating discrimination against a historically oppressed and vulnerable minority.
The results of the referendum will be counted on October 31, 2014. Win or lose, the final determination will likely be delayed further as the case makes its way through the courts and up to the Supreme Court of Canada where we will find out just how far our constitution has evolved in terms of protecting LGBTQ equality rights.