Marking 20 years
of bold journalism,
reader supported.
News
Education
Gender + Sexuality

Road Not Yet Cleared for Christian Law School with Anti-Gay Stance

Law society’s governors can still block TWU accreditation, so might Canada's top court: lawyer.

Katie Hyslop 11 Dec 2015TheTyee.ca

Katie Hyslop reports on education and youth issues for The Tyee. Follow her on Twitter @kehyslop.

image atom
Victoria lawyer Michael T. Mulligan: BC top court ruling failed to find Trinity Western's policies 'are appropriate' or that the Law Society 'is obliged to approve them.'

Did BC's Supreme Court just greenlight a law school at Trinity Western University, rendering moot the private Christian school's formal opposition to students in same-sex relationships?

Not at all, says a legal expert opposed to TWU's bid to train lawyers. It could still be quickly shot down by those who govern the Law Society of BC or, eventually, the Supreme Court of Canada.

For now, TWU is celebrating yesterday's ruling, which overturned the Law Society of BC's decision not to accredit TWU's proposed law school. That's just one more hurdle out of the way to opening the school according to Amy Robertson, associate director of media and PR at Trinity Western University.

"Today is a really important victory for us," Robertson told The Tyee. "It means that the court has recognized the fact that all Canadians have the right to freedom of religion, freedom of conscience, and we think that this will go a long way."

The decision by Chief Justice Hinkson found the Law Society of BC, which regulates the province's 11,000 lawyers, failed to properly weigh the University's right to freedom of religion against the right of LGBTQ+ students not to be discriminated against when it left the decision up to its members rather than its board of governors, known as benchers.

The Society had originally decided to accredit the school in April 2014. But after members spoke out against Trinity Western's controversial community covenant that asks students to voluntarily abstain from "sexual intimacy that violates the sacredness of marriage between a man and a woman," benchers put it to a members' referendum, which voted to rescind the accreditation.

Yesterday Hinkson ruled the original accreditation still stands because "the benchers improperly fettered their discretion and acted outside their authority in delegating to the [Law Society's] members the question of whether TWU's proposed faculty of law should be approved for the purposes of the admissions program."

But Michael T. Mulligan, a Victoria criminal defence lawyer and Law Society of BC member, says this isn't a victory for Trinity Western.

"The ruling deals with procedural issues of how the Law Society benchers dealt with the matter, rather than the substance or the appropriateness of the discriminatory policies of the university, or ultimately whether the university should be accredited by the law society of not," he said.

It's a problem easily fixed, says Mulligan, by the benchers simply voting to rescind the accreditation themselves.

Appeals remain

Yesterday's ruling was the third in three cases Trinity Western has filed against provincial law societies in B.C., Ontario, and Nova Scotia for not accrediting the planned law school.

The Nova Scotia Barristers' Society lost their case back in January, while the Ontario Law Society's decision to deny accreditation was upheld by Ontario Divisional Court in July. Both decisions are under appeal.

Trinity's Robertson says the appeals are the only hurdles left in the way of opening the new law school, adding it's important to the school that their graduate's law degrees be recognized Canada-wide.

B.C.'s Ministry of Advanced Education, which also originally approved of but later rescinded that approval of the proposed law school, released a statement inviting Trinity Western to reapply for approval once all the appeals were settled.

Robertson says people who object to the covenant misunderstand the school. "We welcome everyone who wants to be part of our community, and a really important facet of our faith is that we love and respect everyone, regardless of their background," she said.

Students attending Trinity Western must sign the covenant to study there however, and if students were found in contravention of the covenant, which also includes pledges not to plagiarize or consume drugs, or drink on campus, university could choose to expel the student after an investigation.

Trinity Western has never expelled a student for being LGBTQ+, Robertson says. But if a student didn’t want to sign or live by the covenant, "we would have to talk about whether they wanted to study with us," she said.

'Plainly, clearly discriminatory'

The possibility that Trinity Western could expel a student for being gay, however, is enough for Mulligan to declare the covenant "plainly, clearly discriminatory."

"The university purports to be allowed to discriminate in that way, but I don't think that that sort of discrimination's appropriate, I think it's offensive, and it's inconsistent with the responsibilities of the Law Society," he said.

"One of the responsibilities is to uphold the beliefs and freedoms of all people, and a policy that simply doesn't do that, when that university comes for discretionary approval, I think the only appropriate response is to tell them 'no'."

Paul Tolnai doesn't like the covenant either. However even though the former president of a Conservative Party of Canada electoral district, and a board member of a BC Liberal is gay, he doesn't think the covenant should stand in the way of Trinity Western's law school.

"I think if TWU wants to do a law school, they should be allowed to. It's their right to do it as a school. It's students' rights to be educated in a form that they would want to be," said Tolnai, who adds he predicts this case will make it to the Supreme Court of Canada, too.

He referenced Trinity Western's other prominent legal fight challenging the former BC College of Teachers who denied accreditation to graduates of the school's teachers' college on the basis of the covenant's discrimination against homosexuals.

The Supreme Court of Canada eventually defeated the ruling in 2001, and since then Trinity Western has been graduating "excellent teachers," Tolnai says, who don't show any signs of being biased against LGBTQ+ people.

Law Society weighs next steps

Yesterday's ruling by the BC Supreme Court disappointed Elizabeth Cameron who co-chairs the UBC OutLaws, the LGBTQ+ student group at the Peter A. Allard School of Law. "I could not have accepted a place at law school if I had first had to sign an agreement like TWU's community covenant," she told The Tyee. "The personal cost would simply be too high. Law school is hard enough as it is without having to face the prospect of hiding my identity and feeling that I was considered less worthy than my colleagues, who have pledged to disavow relationships like mine.

"I believe that the covenant would create a very real and plainly discriminatory barrier to access to legal education and the legal profession because it would effectively limit the overall number of places in law schools open to LGBTQ+ students," said Cameron, adding she found it "disappointing" that yesterday's ruling rested on a which members of the Law Society were allowed to vote on accreditation, rather than whether their decision "appropriately balanced the Charter values at issue."

In a statement on the Law Society website society president Ken Walker said: "This decision is important to the public and the legal profession. We will be reviewing the Reasons for Judgment carefully and consulting with our legal counsel regarding next steps."

Mulligan says they have two choices: either appeal the decision, which could take another year or so to settle, or simply do it the right way this time and have the benchers revisit Trinity's accreditation with the proper debate and rescind it.

"The judgment doesn't prevent that," said Mulligan, "[it] doesn't find that the university's policies are appropriate, nor does it find the Law Society is obliged to approve them. It just finds that the approach that the benchers took to come to the final conclusion of rejecting them wasn't appropriate."  [Tyee]

  • Share:

Facts matter. Get The Tyee's in-depth journalism delivered to your inbox for free

Tyee Commenting Guidelines

Comments that violate guidelines risk being deleted, and violations may result in a temporary or permanent user ban. Maintain the spirit of good conversation to stay in the discussion.
*Please note The Tyee is not a forum for spreading misinformation about COVID-19, denying its existence or minimizing its risk to public health.

Do:

  • Be thoughtful about how your words may affect the communities you are addressing. Language matters
  • Challenge arguments, not commenters
  • Flag trolls and guideline violations
  • Treat all with respect and curiosity, learn from differences of opinion
  • Verify facts, debunk rumours, point out logical fallacies
  • Add context and background
  • Note typos and reporting blind spots
  • Stay on topic

Do not:

  • Use sexist, classist, racist, homophobic or transphobic language
  • Ridicule, misgender, bully, threaten, name call, troll or wish harm on others
  • Personally attack authors or contributors
  • Spread misinformation or perpetuate conspiracies
  • Libel, defame or publish falsehoods
  • Attempt to guess other commenters’ real-life identities
  • Post links without providing context

LATEST STORIES

The Barometer

Do You Think Naheed Nenshi Will Win the Alberta NDP Leadership Race?

Take this week's poll