It has been well over a decade since the landmark decisions in re Reference Same Sex Marriage Act, M. v H., and Egan v Canada. It is fair to say that, since then, Lesbian Gay Bisexual Transgender Queer Plus (“LGBTQ+”) individuals have seen a steady shift toward a greater inclusion of LGBTQ+ rights; but then, the foundation of everything that could be categorized as progress was called into question. Yet again!
Justice necessitates the legal profession reflect the communities it seeks to represent: without equal access to legal education, the legal profession will not be sufficiently diverse to ensure access to justice for the broader community it seeks to serve.
This past June, the Supreme Court of Canada reinforced the importance of equitable access to legal education in its highly anticipated decisions Trinity Western University v Law Society of Upper Canada and Law Society of British Columbia v Trinity Western University. These decisions reaffirmed the Court’s role as a defender of LGBTQ+ rights, seen in previous decisions such as Reference re Same Sex Marriage Act, Egan v Canada, and M. v H.
Trinity Western University (“TWU”) is a private evangelical Christian university located in Langley, British Columbia. For some time, it has been in the process of opening a law school and sought accreditation from the provincial law societies for its program. Admission to the proposed law school would have required students to sign a mandatory community covenant demanding abstinence from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” This begs the obvious: what does sexual abstinence have anything to do with receiving any form of education?
Law societies in Ontario, British Columbia, and Nova Scotia recognized that the covenant demanded the impossible of LGBTQ+ students: choose between your identity and your education. The challenge from the Nova Scotia Barristers’ Society made its way to the Nova Scotia Court of Appeal, while the Law Society of British Columbia and Law Society of Upper Canada (now, Law Society of Ontario) litigated the matter all the way to the Supreme Court of Canada.
TWU had previously found itself defending its covenant before the Supreme Court of Canada in 2001 when TWU challenged the British Columbia College of Teachers’ (“BCCT”) decision to refuse accreditation of its teacher training program. In an 8-1 decision, the Court determined that the BCCT had the jurisdiction to consider discriminatory practices in considering TWU’s application, but that it had erred in reconciling the rights to freedom of religion against the equality concerns raised by the LGBTQ+ community. Specifically, the Court focused its analysis on the fact that TWU was a private religious institution and that, while the covenant may discourage LGBTQ+ students from attending, the school had a right to prefer adherents of its own religious community. Furthermore, although the covenant prescribed the conduct of students while attending TWU, there was no evidence that a teacher trained at TWU would treat LGBTQ+ students unfairly or without respect.
This time around, the Supreme Court had to consider whether the law societies’ decisions achieved a proportionate balance between the limitation on the Charter and the statutory objectives of the law societies. Importantly, the focus was on the covenant’s impact on potential students of TWU and their access to legal education, rather than whether lawyers educated at TWU would be more likely to discriminate against others after graduation.
In a 7-2 decision, the Supreme Court endorsed the law societies’ decisions. A majority of the court held both the Law Society of Upper Canada (now, Law Society of Ontario) and Law Society of British Columbia had a broad statutory mandate to regulate the legal profession in the public interest, which included the ability to consider TWU’s admission policies such as the community covenant. The Court found the covenant imposed inequitable barriers that would affect diversity within the profession and ultimately harm LGBTQ+ individuals.
By this exercise, it would appear that the Supreme Court may have deferred to the law societies by supporting their reasoned decision to refuse to accredit TWU’s proposed law school. After all, both the Law Society of Upper Canada (now, Law Society of Ontario) and Law Society of British Colombia, have been the sole regulators of their individual jurisdictions since 1797 and 1869, respectively. In light of this, it would seem fair to view this decision as one of deference to the law societies.
Alternatively, it could also be argued that the decision was not rendered based on deference and that it had much to do with strict adherence to jurisdiction instead, the jurisdiction of the law societies to regulate the legal profession in its entirety.
These points raise important issues for both adversaries. On one hand, the Charter-protected religious freedom, that could afford the TWU to assemble a law school based on evangelical convention. Conversely, the law societies' regulatory authority to adhere to their own conventions, that being the principles of equal access to justice and, therefore, equal access to legal education.
At the core of this decision was the appropriate balance to be struck between TWU’s right to freedom of religion and the right to be free from discrimination. The majority decision found the limits to religious freedom were not significant given studying in a Christian environment with shared beliefs and norms enforced by a mandatory covenant was preferred, rather than necessary, for spiritual growth. On the other hand, the refusal advanced the law societies’ objective of ensuring equal access to the legal profession and protecting members of the LGBTQ+ community from discrimination:
Limiting access to membership in the legal profession on the basis of personal characteristics, unrelated to merit, is inherently inimical to the integrity of the legal profession.
Chief Justice McLachlin and Justice Rowe each wrote concurring reasons that came to the same conclusion as the majority but based on different findings on the impact on religious freedom: the Chief Justice found the impact on freedom of religion was not of minor significance but still found the law societies correctly balanced the competing rights, while Justice Rowe found there was no infringement on freedom of religion as the coercion of nonbelievers is not protected by the Charter.
The joint dissenting opinion, written by Justices Brown and Coté, concentrated on the deprivation of community and found that while the law societies purported to act in the cause of ensuring equal access, they in fact denied access to a segment of Canadian society on religious grounds. In contrast to the majority, Justices Brown and Coté held the law societies’ mandates were restricted to ensuring lawyers were fit to practice and did not include the broad public interest considerations accepted in the three other decisions.
Much of the decisions focuses on the proper approach to the review of administrative decisions that engage the Charter as discussed in Doré v. Barreau du Québec and Loyola High School v. Quebec (Attorney General). In fact, some justices made it most of the way through their reasons without even mentioning LGBTQ+ students and the impact the covenant would have on them.
To this end, Start Proud and OUTlaws were pleased to intervene on behalf of the LGBTQ+ community. This historic intervention focused on the nature of the covenant as a binding contract rather that an aspirational document and sought to move the question from the sterile administrative law context and to inject the lived realities of the LGBTQ+ community:
The barriers imposed by the Covenant on the LGBTQ community are obvious...A barrier at the stage of entering law school represents a barrier to advancement in the profession and the opportunities that presents.
It was also important to differentiate the case at bar with the scenario that led the Supreme Court to come to the opposite conclusion in 2001. Start Proud and OUTLaws drew the Court’s attention to the radically different social climate for the LGBTQ+ community and the significant social advances that had already been achieved, including expanded parental rights and greater protections from discrimination on the basis of gender identity and gender expression.
With these most recent TWU decisions, the LGBTQ+ community achieved more than merely the ability to obtain a legal education without facing barriers: the decisions also acknowledge that the community contributes a vibrancy and expertise to the profession that cannot be replaced. In addition, it is essential that all individuals see themselves in the legal profession, as this increases confidence in the justice system. As the Court reasoned:
The LSUC was also entitled to interpret the public interest as being furthered by promoting a diverse bar. Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs. Accordingly, ensuring a diverse legal profession, which is facilitated when there are no inequitable barriers to those seeking to access legal education, furthers access to justice and promotes the public interest.
This decision serves as another marker on the timeline of the struggle for equality for the LGBTQ+ community, but it will not be the last. In fact, even the TWU saga may not be completely over: for the 2018-2019 academic year, TWU’s community covenant will no longer be mandatory for students (although it will continue to apply to faculty and staff). A legal profession that is truly representative of all communities remains a work in progress, but at the very least this success should be celebrated for what it is: clear affirmation from the Supreme Court that having LGBTQ+ individuals in the legal profession matters.
About the authors
Adam James has been involved with Start Proud and its mission to assist LGBTQ+ youth in their transition to the professional world for the past two years, first as Moot coordinator for the Out on Bay Street Conference and currently as its corporate secretary. Since completing his legal studies at Queen's, he has practiced labour and employment law with Sherrard Kuzz LLP in Toronto.
Savannah DeWolfe is a regional affairs advisor for Atlantic Canada in the Office of the Minister of Environment and Climate Change. She volunteers her time with Start Proud, as a researcher. Her contributions to this timely article were possible due to her felt empowerment that accompanies the study of law, as a second-year law student at the University of Ottawa. She feels that the recent decision covered in the article shows students, like herself, that the law can be a most effective tool to enact social change.
About the editor
Lilia Azaitian is General Counsel with Blockgration, where her practice focuses on matters involving blockchain technologies, corporate finance and securities. She joined the Ontario Bar Association Executive Committee for Sexual Orientation and Gender Identification Community (“SOGIC”) in 2016 and has recently been appointed as newsletter editor for her Section. As an avid member of the LGBTQ+ community, she has a passion and purpose for advocating on behalf of the community through collective education forums.
 2018 SCC 32, 2018 SCC 33.
 The Egan case was made into a Historica Canada Heritage Minute earlier this year. The Minute shares the story of the case’s protagonist, Jim Egan, and his fight for equality in spousal rights.
 Law Society of British Columbia at para 41.
 Start Proud-OUTLaws Factum to the Supreme Court of Canada at para 8.
 Law Society of Upper Canada at para 23.
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