Trinity Western University in British Columbia wants Canadian legal regulators to accredit its new law school. However, it also wants its law students to abide by a Christian code of conduct that prohibits sexual activity outside the confines of a heterosexual marriage. Will the university’s “religious freedom” to oblige its students to abide by that code, or the rights of LGBTQ2 students to have equal access to a law degree, win at the Supreme Court of Canada? I was there on Nov. 30 and Dec. 1 to watch seventy lawyers litigate the contentious issues. Based on what I observed, I am confident that we could see an equality rights victory.
My first attendance at the court was fascinating. It was one of the last cases that Chief Justice Beverley McLachlin will preside over before her retirement next week, and all nine judges sat on an engaged bench. Not to mention that three appellate courts had arrived at different findings on the issue in question, and an intervenors list granted by Justice Wagner had excluded all LGBTQ2 groups, only to be varied days later in an unprecedented move by the Chief Justice. The case has been repeatedly described as one of the most controversial in a generation, and is happening during a time of change in Court dynamics. It was a privilege to watch it unfold.
I attended the hearing with my fellow executive members of the Law Students’ Society of Ontario, as one of 27 intervenors. However, this piece represents my experience observing the hearing, and does not reflect the position of the Law Students’ Society or its constituents.
On day one, we heard from counsel for TWU twice; once as appellants against the Law Society of Ontario (formerly LSUC) and once as respondents to the Law Society of British Columbia. Throughout their submissions, there was confusion amongst the bench about who TWU was purporting to hold “religious freedom” rights under section 2(a) of the Charter. Justice Brown reframed the question to counsel several times before finally hearing that TWU was seeking recognition of the “collective rights” of the Trinity Western religious community, balanced against equality “interests,” not rights, of LGBTQ2 students. The bench did not seem to buy TWU’s analysis on this point. Justice Abella stated flatly that LGBTQ2 students do have equality rights, so the indication was that counsel should not waste time diminishing that. Other comments from the bench included: from Justice Karakatsanis, that substantive equality is not a numbers game, and that if you do not have access to something because of the core of who you are, that is discrimination; and from Justice Moldaver, denying TWU’s claim that there would be no harm to LGBTQ2 students in the face of having to hide who they are to attend the law school.
Day two of the hearing was reserved for a long list of intervenors and final replies from the parties. The bench looked tired. I was, too; the morning dragged on as we listened to a series of white male lawyers argue on behalf of religious organizations that the law societies have no Charter-based duty to address discrimination by TWU, suggesting that accreditation is not endorsement. The more diverse intervenors arguing on behalf of LGBTQ2 and public interest groups successfully countered these claims, and made other arguments, in the afternoon.
I am a law student concerned about diversity in the profession that I have chosen. I happen to identify with the LGBTQ2 community. But I am also interested in equity issues more broadly. I am a proponent of the things that help our profession reflect the communities that we serve; and to my understanding, so are most lawyers. This makes me note that this case would likely have been scoffed at early on if the covenant asked students to certify that they were not a woman, or a person of colour. In fact, these analogies were brought up on more than one occasion by the bench to illustrate the adverse effects of TWU’s arguments. For some reason, LGBTQ2 discrimination is often treated as an exception to the general rule – and Charter right – of equality, as if it were a choice to be gay, lesbian, trans, bisexual, queer, or two-spirited. As if students would choose to live in a society where they cannot be themselves because others will not permit them to be.
Religious students are free to choose to practice their religion; that is their right. If TWU is not accredited, they can still do that. They will not be barred from attending any legal institution in the country, and wherever they go, they can believe in what they believe in, and practice what they wish to practice. Religious freedom is a freedom that I value and that is embedded in our Charter. Conversely, accreditation of the law school’s covenant means that LGBTQ2 students will be categorically excluded from attending Trinity Western University, and thus, will not be afforded equal access to the legal profession, or to their Charter rights. TWU is imposing their beliefs on others, with severely adverse effects. And that cannot stand.
Two days before the TWU hearing, Prime Minister Justin Trudeau issued an apology to LGBTQ2 Canadians, for the discrimination they have faced at the hands of the government. It was one small step in the right direction. I hope the Supreme Court takes the same path. I want other LGBTQ2 law students to have the chance to one day sit where I sat, in the country’s top court, watching history unfold.
Special thanks to Osgoode Hall Law School for sponsoring my trip to the Supreme Court.
Heather Donkers is a second-year law student at Osgoode Hall. She is currently serving as the Equity Officer for the Law Students’ Society of Ontario and will be spending a term as a legal intern with the United Nations High Commissioner for Human Rights in Switzerland. Heather can be followed on Twitter at @HeatherDonkers.