Trinity Western University (TWU) is an evangelical university in British Columbia with a community covenant that promotes traditional Christian values. Specifically, TWU asks students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
Earlier this year, the Law Society of Upper Canada found this restriction to be unduly discriminatory towards homosexuals, and consequently denied TWU law school accreditation. More recently this month, the Divisional Court in Ontario dismissed the TWU’s request for judicial review, after finding that the law society acted reasonably in balancing the religious freedom and LGBTQ+ equality interests that were at stake.
The Ontario court’s ruling is highly flawed, and is emblematic of the vulnerable position religious institutions today occupy in Canadian society.
Most notably, the Divisional Court was not concerned with any post-graduation homophobia TWU-trained lawyers might exhibit. Instead, the court questioned the covenant itself and whether it would unfairly prevent members of the LGBTQ+ community from entering the legal profession in the first place. In a decision that managed to reinforce negative stereotypes about gay people and contradict its own stated reasoning, the court found that it would.
In one of the more dubious sections of its ruling, the court states on page 31 that “individuals who may not believe in marriage, or LGBTQ persons, may attend TWU but they must first sign the Community Covenant and thus, in essence, disavow not only their beliefs but, in the case of LGBTQ individuals, their very identity.”
The idea that homosexuals are particularly promiscuous and sexually motivated people is a distasteful, inaccurate, and antiquated idea. Surely the court does not believe that only heterosexual Christians possess the dedication and discipline necessary for abstinence. Nonetheless it is a key point of argument used by the court to illuminate purported anti-gay bias. But given the fact that the covenant prohibits all extramarital sexual activity by people of all sexual orientations, it is hard to believe that homosexuals are singled out for discrimination.
A second instance of incoherency occurs when the court attempts to cite the scarcity of law schools in Canada as a justification for preventing the opening of a new law school. On page 21 of the ruling, the court points out that in 2013 “there were three applicants for every single spot available at a law school (in Canada)” and “[c]onsequently, it is clear that, in this case, being eliminated from TWU as a place to attend law school means, for many persons, that their likelihood of gaining acceptance to any law school is decreased.”
Firstly, LGBTQ+ individuals would not be “eliminated from TWU as a place to attend law school.” As stated above, the court itself recognizes that gay people are indeed welcome to attend TWU so long as they, like the heterosexual students, agree to abstain from sex. Secondly, even if homosexuals could not attend TWU, there would still exist eighteen public, secular law schools in Canada for them to apply to. Given that TWU in fact does not deny acceptance to gay people, it is not clear why the court believes that the opening of a nineteenth law school would reduce rather than increase an applicant’s chances of becoming a lawyer.
U of T, like all public Canadian universities, long ago secularized its rules so as to better reflect its status as a government-funded institution. One need not practise any particular faith in order to attend.
Trinity Western, a private university under no obligation to abandon its religious beliefs, wants nothing more than to host a law school where students of common faith can train in the law together. This is far from an unlawful infringement on gay rights.
As Justice Jamie Campbell of the Nova Scotia Supreme Court wrote in his recent decision overturning the refusal of accreditation by that province’s law society, “[t]he Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state.”
In refusing to accredit its law school, the Law Society of Upper Canada imposed moral conformity not only on Trinity Western but also evangelicals — many of whom are undergraduates at schools like U of T — who desire to study there. In affirming this refusal, Ontario’s Divisional Court weakened the religious freedom of all Canadians.
Emmett Choi is a fifth-year student at Victoria College studying philosophy and American Studies.