Saying "Yes" to Trinity Western University's Law School Says "No" to Diversity

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I grew up in Langley, British Columbia and went to high school there in the 1990s. When I got my driver’s licence, I would exercise my freedom during lunchtime and class spares to drive from my fine arts (read: alternative) school to “downtown” Langley, if it can be called that. En route, I would roll past TWU and stare wonderingly at its estate. Having been raised without much of any religious influence — its probably more accurate to call my parents lapsed Anglicans than atheists — I could only imagine what TWU was or what it represented. I also had a private music teacher who taught there as a sessional instructor; she made oblique comments about its religious overtones, but otherwise I had not even a passing familiarity with TWU.

Fast forward to the summer of 2013, when I was licking my first year wounds and obsessing about securing an article. News of TWU emerged from the noise of the Ontario articling crisis. My mind turned initially to the supply and demand of a lawyer’s labour, so I selfishly objected to the creation of yet another law school that might jeopardize my own value in the market.

I had, in 2000, completed a teaching diploma at Simon Fraser University, and faint memories of the legal storm surrounding TWU’s teacher-education program bubbled to the surface. Before that, as an undergrad, I spent my summers working as a Student Customs Inspector for Canada Customs in Surrey. My then-boyfriend was employed at Little Sister’s bookstore in Vancouver, and I remember the sharp sunburn that was my souvenir from marching in my first Pride Parade in Vancouver, joining the shop’s contingent, holding up a banner decrying Customs and its prudish seizure policies. Having come of age in the context of these limited experiences, I was not aware of thorny legal legal issues engaging LGBTQ rights coming out of other provinces. But 13 years later, as I was exploring articling options, and learning something about provincial regulation and the national mobility of lawyers, it dawned on me that the consequence of whether or not TWU’s law school opened its doors transcended BC’s border.

It has been difficult to take a stand on TWU. Finding myself hemming and hawing—and especially in the midst of poignant positions taken on both sides—I have felt guilty of being at times indecisive, unprincipled, inarticulate. (For this reason, and for better or worse, I would be an absolutely terrible politician.) After all, I wear all sorts of hats. I am the son of don’t-rock-the-boat and keep-your-nose-down-and-work-hard parents. I am a gay man who came of age on the coattails of LGBTQ human rights and gay-marriage achievements, believing that the hard-fought battles were a thing of the past. I am a former teacher whose first gig was at a “fundamental” school; my single earring agitated a 14-year-old enough to push religious pamphlets on me. I am also a budding lawyer trying to reconcile the administrative law and Charter principles, which are taking jabs at each other with TWU and law societies caught in the middle.

Based on my experience, most LGBTQ individuals choose to omit revealing their sexual orientation and gender identity in various circumstances, hoping they will pass for straight and cisgender. For me, this has taken many forms. At times, I have allowed friends, family, employers, colleagues, and neighbours to believe that I am straight. Usually, this takes the form of split-second decisions triggered by questions about dating or spouses. Or deceptive pronoun practices that essentially result in lies (“I bought a house this winter” instead of “My partner and I bought a house this winter”). Or just choosing to obscure or not to share with others the ordinary experiences my partner and I enjoy because of my discomfort with not knowing which line of questions might follow. Even today, 20 years after graduating from high school, and especially as I am entering this rather conservative profession, I find myself occasionally undertaking a tiring risk–reward analysis: For how long can I get through my article without my principal finding out I’m gay? Might I be seen as “flaunting” my sexuality if I use the terms “my boyfriend” or “my partner”? Should I even care? Well, if you still find yourself seeking approval from your peers and superiors like I do, then these are the questions that form an anxious backdrop of many social and professional encounters.

It goes without saying that many LGBTQ individuals will choose not to attend TWU because of, among other things, the principles espoused in the Community Covenant which all students and staff are required to sign. But the LGBTQ student who attends TWU faces the ordinary identity dilemma writ large. The consequences of breaching the Covenant are not entirely clear, although it threatens “formal accountability procedures”.¹ Considering its potentially repressive effect on one’s ability to express his or her identity fully, the Covenant either discourages queer and trans individuals from attending TWU, or it imposes a chilling effect on enrolled students.

I don’t buy the argument that TWU students would necessarily receive a substandard legal education. At the University of Alberta, legal principles were presented more often than not without moral commentary—when we studied Vriend v. Alberta,² for example, there was no substantive discussion about sexual diversity in society. That would have been a great supplement, but I think my professor’s canvassing of the case’s relevant legal principles set me up just fine for extracurricular application, research, or musing. However, when professors did leak personal opinions about important cases, the effect was to provoke greater engagement. Isn’t that what we want from universities?

But, all Charter and administrative law arguments aside, there is something oxymoronic about an institution of higher education purporting to uphold principles of academic excellence and exploration while forcing its students to remain silent about their very identities and lived experiences, and enforce such silence against one another. Colleges and universities are launch pads where individuals engage with the world and grow new layers, emerging as wiser versions of themselves, their skills, creativity, and reasoning burnished. What does it mean when we tolerate institutions of learning, which require a targeted group of individuals to check their identities at the door? How does one engage with the world of knowledge when one is compelled to leave attributes of his or her own character on the threshold?

It seems ironic that not only does TWU as an institution of higher learning effectively require its LGBTQ students to masquerade as straight and cisgender individuals, but also that its proposed law school rests on certain noble and liberal objectives. For example, TWU on its website states its law school will “infuse leadership and character development into its very core”.³ How it will achieve this for its LGBTQ students who are required by the Covenant essentially to repudiate their sexual and gender identities is perplexing. It is a rather hollow and half-hearted vision considering the implied caveat.

For its part, TWU also states that it will “provide a place where the great questions of meaning, values and ethics are confronted, debated and pondered, and the broad and diverse communities of Canada are served through a richer understanding of the law”. This is admirably bold! Who would not want to attend a school that promised such ambitious vision? Pardon my sarcasm, though: I do not suggest that TWU is simply giving lip service to diversity and the “great questions of meaning, values and ethics”, but I doubt that the proposed law school could achieve much success in this regard without voices in the room embodying said diversity. A roomful of heterosexual and cisgender students can very genuinely pursue those “great questions”, but to what end? Discussion and debate lacking in sexual and gender diversity reinforce the same stale norms that dominated during less enlightened times.

LGBTQ students asked at the door of an institution of higher learning to pretend to be people they are not is an insult to the very ambition that brings them to the threshold. It is a sign that says, “you are not welcome”, unless they agree to remain silent, on pain of some unspecified sanction. Were it not for the general invisibility of sexuality and gender identity, these students might not even be able to pay their way in with tuition. Justice L’Heureux-Dubé in her 2001 dissent recognized that “the history of struggles against sexual orientation discrimination has been described as a battle against ‘the apartheid of the closet’”.⁴ While this has allowed many a queer or trans student to fly under the radar, this has also allowed discriminatory forces to remain unchecked for longer.

On one hand, Canadian society abhors patent racial and gender discrimination. But when the religious banner is flown, we equivocate about sexual orientation. Compelling arguments are made that the TWU law school as a private religious institution would be within its legitimate rights to proscribe personal, intimate conduct that the Supreme Court has recognized as inseparable from and emblematic of one’s identity. In other words, principles drawn from scripture trump certain human rights because they form part of the fabric of sincerely held religious belief.

Perhaps because the TWU matter cannot be so neatly categorized, legally or ethically, it suffers from great circularity and lack of precision. Each side has taken up “the public interest”, “Charter values”, “religious freedom”, and “diversity” variously as swords and shields. Various decision-makers have gathered in the round and have built a self-perpetuating cycle of deference and delegation—the Government of BC, the FLSC, many provincial law societies (I’m looking at you, Alberta), and the courts. None of them will declare unequivocally that it is not in the public interest to bar LGBTQ students from an accredited law school in Canada.

Nobody can agree on what the obiter means in the Supreme Court’s 2001 Trinity Western University case, or how to apply it today. And from Bedford and Carter,⁵ we now know that the Court has signalled to lower courts that they can shrug their shoulders and shelve stare decisis if societal values have evolved and the “matrix of legislative and social facts” have changed. In Trinity Western, TWU successfully argued that its discriminatory covenant would not foster discrimination in public schools in BC. When these judicial reviews come before the Supreme Court, law societies will emphasize not that the public will be poorly served by graduates of TWU but that their being compelled to recognize TWU graduates—either directly or through the FLSC—would make them complicit in enforcing TWU’s discriminatory covenant.

Why must law societies bear the legal consequence of endorsing fiats of the FLSC? Some jurisdictions, including Alberta, argue that they have passed resolutions that bar their consideration of accreditation matters, relying on the FLSC to make those decisions. As I argued in a letter last year to the then-President of the Law Society of Alberta, the LSA cannot delegate to third parties decisions that require a consideration of Charter and human rights values. I further argued that the LSA’s adoption of the FLSC decision runs directly contrary to the LSA’s own respect and diversity values in its Strategic Plan.

It seems axiomatic to me that Canadian governments should operate to promote Charter and human rights values, fostering inclusive societies that promote and celebrate diversity. The BC legislature in its wisdom saw fit to create a private, faith-based university, which sits outside the reach of the Charter. Only that legislature should have to answer to its constituents who are upset that this institution is closed to or discourages openly gay and trans students. However, statutory delegates in other jurisdictions should not be hamstrung by the Government of BC’s decision to accredit a discriminatory law school within its boundaries. Nor should law societies be compelled to decide in favour of TWU because of the collective will to honour the principle of national mobility, the genesis of which was from a time when all Canadian law schools were open to students of all stripes: straight, gay, trans, black, brown, disabled, et cetera.

The Government of BC has no choice but to rubber-stamp TWU programs (considering the intent of its legislators), and the FLSC will bend over backwards to make accreditation decisions that align with national mobility principles. That provincial and territorial law societies should take these stances as indicia of public interest misapprehends how best the public is served, especially in light of the Supreme Court’s recent emphasis on the imperative for public decision-makers to consider Charter and human rights values where they are implicated. More alarming is that the LSA did not even appear to undertake an independent assessment of whether recognizing TWU graduates conflicts with its public-interest mandate.

I am not a betting man, so I won’t guess how this will play out as it percolates upward. I know—and in fact went to law school with—TWU graduates who have nothing but gushing things to say about the school. They also happen to be wonderfully liberal, open-minded, and gay-friendly. I do not object to more law schools in Canada; I will leave the supply–demand matters to the experts. But wouldn’t it be lovely if TWU, as a private, faith-based university, warmly welcomed all individuals to its learning community? Where, without stigma, any clever and passionate individual—gay, straight, or somewhere in between—can learn the law? The next time I drive past TWU’s pearly gates, I hope to see that “All Welcome!” sign.

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