Canada: The SCC's TWU Decision Affirms Equal Access For The LGBTQ+ Community In British Columbia

FREEDOM FROM RELIGION: The TWU Decision Affirms Equal Access to the LGBTQ+ Community in British Columbia (Just in Time for Pride Week!)

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 school 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.

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 at para. 103

Friday Was a Good Day for the British Columbia Bar

In a highly-anticipated 7-2 decision released June 15, 2018, a majority of the Supreme Court of Canada ("SCC") ruled that the Law Society of British Columbia ("LSBC") was entitled to deny Trinity Western University ("TWU") an accredited law school. The plural judgement highlighted differing views on the approach to the complex legal questions at issue (with five of the nine justices delivering the majority judgement and two justices writing separate reasons but concurring in the result), and the decision no doubt leaves open further questions on the limitation of religious freedom in other contexts. However, it represents a win for the overwhelming majority of members of the LSBC who voted to ensure a legal profession in this Province that values diversity, accessibility, equality and dignity and does not discriminate against the LGTBQ+ community.

A (Not So) Brief History

TWU is a privately-funded evangelical Christian university currently offering a variety of undergraduate and graduate programs. Crucially, TWU is dedicated to providing a university education to students from an evangelical Christian viewpoint. To accomplish this objective, TWU requires its students to sign and abide by a Community Covenant Agreement ("Covenant") prohibiting anti-Christian behaviour, including engaging in "sexual intimacy that violates the sacredness of marriage between a man and a woman". The Covenant also requires students commit to upholding all persons' "God-given worth from conception to death".

Students who are found to have violated the Covenant, including LGBTQ+ students and women who access constitutionally-protected abortion services, could face suspension or permanent expulsion, and are encouraged to hold each other responsible for complying with the Covenant. Not surprisingly, these particular prohibitions have attracted wide-spread criticism from the LGBTQ+ community, feminists, and human rights activists.

TWU began seeking approval for a law school in 2012. BC's Minister of Advanced Education, the Federation of Law Societies in Canada and a majority of the elected Benchers of the LSBC initially approved the proposed law school. However, a strong backlash from members of the LSBC lead to a referendum of members on the question of whether TWU's law school should be approved. The outcome was a vote overwhelmingly against TWU's proposed law school: 5,951 members voted against, and 2,088 members voted in favour. Accordingly, on October 31, 2014, the Benchers passed a resolution declaring that TWU's law school was not an approved faculty of law. Shortly thereafter, the Minister withdrew his approval.

Decisions of the Lower Courts

TWU and a TWU student applied to the Supreme Court of BC for judicial review of the LSBC's decision arguing that the LSBC failed to appropriately balance their right to freedom of religion under s. 2(a) of the Charter of Rights and Freedoms ("Charter"). The BC Supreme Court agreed, finding that by putting the decision to a referendum the Benchers had improperly fettered their discretion and failed to balance s. 2(a) Charter rights.

In June 2016, the LSBC unsuccessfully appealed to the BC Court of Appeal who upheld the lower court's decision.

Decision of the SCC

The LSBC appealed to the SCC. The court considered the following issues on the appeal:

  • whether the LSBC was entitled under its enabling statute to consider TWU's admissions policies and to hold a referendum of its members in deciding whether the approve its proposed law school;
  • whether the LSBC's decision limited the Charter protection of religious rights; and, if so,
  • whether the decision reflected a proportionate balance of the Charter protection and the LSBC's statutory objectives.

Statutory Entitlement

In the majority decision, the SCC found that the Benchers were entitled to consider admission standards, and that the LSBC must do so according to its overarching statutory objective: to uphold and protect the public interest in the administration of justice. Given the breadth of the LSBC's statutory objective and the legislature's valid delegation of regulation of the legal profession to law societies, the SCC ruled that the LSBC is entitled to deference in its interpretation of what "public interest" means in a given context.

Here, the LSBC interpreted its duty to uphold and protect the public interest in the administration of justice to mean denying the approval of TWU's proposed law school because the requirement that students sign the Covenant as a condition of admission effectively imposes inequitable barriers on entry to law school, and therefore to the legal profession. The LSBC was resolute that these inequitable barriers would risk decreasing diversity within the legal profession and would harm LGBTQ+ individuals. Together, the LSBC felt that these outcomes would undermine the public interest in the administration of justice in BC. The SCC considered this to be a reasonable conclusion.

A Proportionate Balance

The SCC found that the LSBC's decision did limit the Charter protection of religious rights, however marginally, and therefore necessitated a proportionate balancing of the Charter protection and the LSBC's statutory objectives. On this, the SCC ruled that the limitation on TWU's religious rights was of "minor significance" because the Covenant was not absolutely required for the religious practice. Rather, the Covenant merely facilitated evangelical Christian students studying in their "optimal" religious learning environment. The students themselves indicated that studying in a religious learning environment was "preferred (rather than necessary) for their spiritual growth".

On the other side of the scale, the SCC found that the LSBC's decision undeniably advanced its statutory objectives by:

  • maintaining equal access to and diversity in the legal profession; and
  • preventing the risk of significant harm to LGBTQ+ people who attend TWU's proposed law school.

Ultimately, the SCC determined that the LSBC had adequately balanced the Charter protection with its statutory objectives, finding that the refusal to approve the TWU law school advanced statutory objectives while insignificantly limiting TWU's religious rights. With respect to limitations on religious freedom, the SCC stated:

Being required by someone else's religious beliefs to behave contrary to one's sexual identity is degrading and disrespectful. Being required to do so offends the public perception that freedom of religion includes freedom from religion.

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 at para. 101

Final Thoughts on the SCC's TWU Decision

The result of this decision is the recognition and protection within the legal profession of BC of the human rights guaranteed to all citizens in Canada. It does not represent an attack on religious rights. Rather, it sends a powerful message that discrimination against marginalized groups will not be tolerated, even if a religious practice demands it.

We stand with the LSBC and celebrate this win for the rights of LGBTQ+ communities. We also commend all of our colleagues involved in this decision who advocated for equality, accessibility and diversity in our profession.

Some More Shameless Plugs...

Find out more about Vancouver Pride here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Devry Smith Frank LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Devry Smith Frank LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions