The Law Society of New Brunswick has decided to accredit the proposed law program at Trinity Western University (TWU), a private evangelical Christian university in British Columbia. The Law Society was wrong to do so not because TWU is a Christian institution, but because TWU makes students sign a “Covenant” promising to “abstain from … sexual intimacy that violates the sacredness of marriage between a man and a woman.” Thus, a married heterosexual who attends TWU may continue to experience physical love within that relationship but a legally-married lesbian or gay man may not.
The TWU Covenant would discriminate unlawfully against lesbian, gay, bisexual and transexual (LGBT) law students by effectively banning them from its law school. This was clear to the law societies in Nova Scotia and Ontario, who voted against TWU accreditation. How could New Brunswick get it so wrong?
TWU says that its prohibition on gay sex is central to its religious beliefs and is therefore legally protected. Its claim to legal protection rests on a 2001 case where the Supreme Court of Canada (SCC) said that TWU-educated teachers should be allowed to practice despite having signed the Covenant. Why? Because there was no evidence that TWU grads actually went on to discriminate in the classroom. Under those circumstances, the SCC said that the Covenant was legal because it indicated belief but did not involve conduct.
Much has changed since 2001, including the legalization of same-sex marriage and new SCC cases that undermine TWU’s position.
Moreover, the facts here are different. The problem with accrediting TWU is not that its law grads might discriminate. Instead, the problem is that the Covenant effectively excludes LGBT law students.
This ban moves the Covenant out of the realm of belief and into the realm of conduct. As a private university, TWU may impose internal religious obligations. But law societies are responsible to the public. The key issue is whether it is in the public interest for the NB Law Society to accredit a program that unlawfully discriminates in its admission and disciplinary policies.
In its Whatcott decision in 2013, the SCC said that there is no difference between banning gay sex and banning gay people. The judgment includes a passage stating that “One such instance is where the expression does not denigrate certain sexual conduct in and of itself, but only when it is carried out by same-sex partners.”
This is precisely how the TWU Covenant operates; the Covenant does not denigrate sexual conduct between married partners “in and of itself, but only when it is carried out by same-sex partners.” The SCC concluded that same-sex sexual conduct is “integral to and inseparable” from the identity of LGBT persons.
So the SCC is clear: banning sexual intimacy between persons in same-sex marriages whilst permitting it between persons in opposite-sex marriages cannot be distinguished from banning LGBT people. Banning LGBT people means that, on these facts, the Covenant is on the ‘conduct’ side of the ‘thought vs. conduct’ distinction that the SCC articulated in 2001.
According to the Federation of Law Societies of Canada, the TWU proposal meets all academic requirements. TWU argues that provincial law societies have no choice but to rubber-stamp that decision. Several of the NB Law Society’s decision-makers accepted this position. In doing so they either failed to understand or refused to acknowledge that their duty to represent the public interest means taking New Brunswick laws into account.
TWU is located in BC, where the Human Rights Code has an exemption for private religious institutions. New Brunswick’s Human Rights Act has no such exemption. If TWU were located in this province and a LGBT lesbian law student were denied admission for refusing to sign the Covenant or expelled for failure to abide by it, that student could easily establish discrimination. TWU would then have to try to defend itself by showing that the Covenant is a bona fide requirement and “reasonably necessary” for the purpose of legal education. It would almost certainly fail.
The legal arguments outlined above were made to the Law Society at its meeting on June 27th. TWU’s President, Bob Kuhn (a lawyer), was given the opportunity to respond. He did not address the legal points raised. When one side makes legal arguments that the other side cannot rebut, most adjudicators rule in favour of the side that made the arguments. The Law Society decision-makers did just the opposite.
Bob Kuhn insists that “TWU is not for everybody.” While that is no doubt true, its law school must be open to everyone who wants to attend as long as they meet the academic requirements for admission. The New Brunswick Law Society was wrong to vote otherwise.
To find our more about the campaign to have a special general meeting of the law society resolving that Council should reverse its decision. For more info, contact Vasu Sivapalan at Vasu@lutz.nb.ca or Lauren Cicin at firstname.lastname@example.org.
Karen Pearlston is an associate professor at UNB’s faculty of law.
A version of this article first appeared in The Telegraph-Journal.