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

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.

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