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OUTlaw Addresses the Preliminary Approval of Trinity Western

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OUTlaw

This is an open letter from OUTlaw to the FLSC and The Law Society of Alberta re: approval of Trinity Western University’s law school proposal

OUTlaw Alberta is a student group operating within the Faculty of Law at the University of Alberta. We raise awareness among LGBTQ law students and the student body as a whole about queer issues in the faculty and the legal profession. OUTlaw Alberta is troubled by the decision of the Federation of Law Societies of Canada (FLSC) to grant Trinity Western University (TWU) preliminary approval for its proposed law school program.

TWU requires its students, faculty, and staff to sign its Community Covenant Agreement (the “Covenant”). The Covenant proscribes “sexual intimacy,” except between married, opposite-sex spouses. The TWU Student Handbook refers to biblical passages which suggest the prohibition of homosexual intercourse. In order to remain enrolled at TWU, lesbian, gay, bisexual, and transgender students must agree to have fewer rights than their heterosexual peers.

In soundly rejecting any justification for discrimination based on sexual orientation, the Supreme Court of Canada has warned that such discrimination is particularly harmful to human dignity. As stated by the majority in Vriend v. Alberta, [1998] 1 SCR 493 at para 201, “[f]ear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message … that gays and lesbians … are not worthy of protection… The potential harm to the dignity and perceived worth of gay[s] and lesbian[s] constitutes a particularly cruel form of discrimination.”

While TWU, as a private institution, is not subject to the Canadian Charter of Rights and Freedoms, we adopt the words of a recent Globe and Mail editorial whose author stated that “[e]quality before the law is at the heart of Canadian law, and a law school that won’t accept that idea has no legitimacy… [T]he training of lawyers is something that the broader society needs to insist be untainted by discrimination… A law school fundamentally at odds with Canadian law cannot stand” (“No gay-free law school should stand in Canada”, Editorial, The Globe and Mail (7 February 2013) online: The Globe and Mail <http://www.theglobeandmail.com>). Although TWU itself is not subject to the Charter, it is clear that law societies must act consistently with Charter values when exercising their discretion (Doré v. Barreau du Québec, 2012 SCC 12 [Doré]).

OUTlaw Alberta believes that TWU discriminates against LGBTQ students, that these discriminatory policies are inconsistent with Canadian legal values, and that restrictions on academic freedom at TWU are inconsistent with the FLSC’s academic requirements on ethics.

Freedom from discrimination has been a hard-fought battle for LGBTQ Canadians. It is more alarming than ironic that the FLSC would approve the application of a law school whose discriminatory policies were so blatant and entrenched. As was so well articulated by Jessica McCormick representing the Canadian Federation of Students in her letter to the President of the FLSC, “[i]t is concerning that the FLSC has acknowledged that substantial concerns were raised about homophobic discrimination within [TWU’s Covenant], but is unwilling to take action to ensure that [LGBTQ] law students do not face systemic institutional discrimination… The FLSC’s decision is exceptionally disappointing, as it abandons the principles of fairness and equality that form the foundation of the law and sets a dangerous precedent for the development of future professional schools in Canada.”

For LGBTQ students who continue to face discrimination and marginalization on a regular basis, the decision to permit the development of a law school where queer students will be unwelcome and silenced is a reminder that respected legal institutions like the FLSC continue to facilitate substantive discrimination. It is bad enough that it is unclear whether law students at TWU will receive the same substantive instruction about human rights and professional ethics as law students elsewhere in Canada. What is most pernicious is that, if TWU moves forward with its plan to start a new law school, LGBTQ Canadians will essentially be barred from those new spots. Heterosexual applicants will be welcome to apply at any school in the country, whereas queer applicants will essentially be restricted from what their straight counterparts can do—apply for admission to what could be Canada’s newest law school.

Accordingly, OUTlaw Alberta strongly opposes approving TWU’s accreditation as a law school. If TWU does open a law school, however, it leaves open the question of what provincial and territorial law societies should do with applications for membership from TWU graduates. In our opinion, the Law Society of Alberta should, as Doré requires, give serious consideration to Charter values when considering whether or not TWU graduates meet the requirements for being called to the bar in Alberta. As the United States Supreme Court stated in Norwood v. Harrison, 413 US 455 at 468-49 (1973), “discriminatory treatment exerts a pervasive influence on the entire educational process.”

While it is still too early to argue how provincial and territorial law societies might consider TWU law school graduates seeking membership, OUTlaw urges the Law Society of Alberta to begin this policy deliberation earlier rather than later, taking into full account TWU’s discriminatory environment and the degree to which it is incompatible with a proper Canadian legal education. Its determination can then inform further discussions about TWU’s status as a law school, and what standing its graduates will have when they apply to practice law in Alberta.