The Trinity Western case has been closely followed by many with an interest in religion, equality or human rights throughout the world. In a nutshell, Trinity Western, a private, Christian university in Canada decided that it wanted to open a law school. In this institution all students and staff are obliged to sign up to a code of conduct described as a “Covenant”, which forbids sexual intimacy outside of the confines of heterosexual marriage, and applies to behaviour on and off campus. These requirements would also be applicable to members of its new School of Law.
It is important to highlight that in order to provide qualifications which enable graduates to practise law in a Canadian state, law schools must obtain validation from the relevant Law Society. Accordingly, this Christian institution applied to the Law Societies of Ontario and British Columbia for approval, and was declined in both cases, due to the discriminatory nature of the Covenant.
In making these decisions, the two Law Societies were exercising powers conferred by the Government, for the purpose of protecting the public interest by regulating access to the profession and provision of legal services. Consequently, Trinity Western was able to challenge their rejection before the courts in a judicial review action, arguing that it violated rights conferred by the Canadian Charter of Rights and Freedoms, in particular freedom of religion.
The majority of the Supreme Court rejected the arguments put forward by Trinity Western, and affirmed the validity of the approach taken by the Law Societies. The touchstone question was whether the decision to decline validation had been reasonable. In order to demonstrate reasonableness, the Law Societies had to show that a proportionate and fair balance had been struck between the religious rights of the Trinity Western community and the legitimate objective of protecting the wider public interest. For the majority, the concept of “public interest” was broad enough to encompass promoting equality in the ways put forward by the Law Societies: namely by ensuring equal access to the legal profession, supporting diversity amongst practitioners, and preventing harm to LGBTQ law students. Therefore, the aims being pursued by the Law Societies were considered proper and legitimate.
Furthermore, the measures being taken were not excessive, as these two societies were not preventing any student or staff member from adhering to or expressing their personal beliefs, including those enshrined in the Covenant, and all that was being prohibited was the enforcement of such beliefs and practices on other members of the law school community. All things considered, the benefits of protecting the public interest were given priority over the inevitable limitation on religious freedoms, and in this balancing exercise the court concluded that the scales clearly tipped in favour of the Law Societies. We would suggest that this was the correct outcome, for three reasons:
Firstly, in seeking to confer degrees which would give individuals access to the legal profession, Trinity Western was asking to provide a public service. This is demonstrated by the very fact that public authorities had tasked the Law Societies with acting as gate-keepers when it came to approving law schools. There is an undeniable public interest in the training and professional formation which lawyers and judges receive, and given that the university was asking to enter an arena in which its policies and practices had implications for the world outside of its campus, it was not unreasonable to demand that it took account of the needs of wider society.
Secondly, legal education is more than just imparting factual information. It is impossible to deny that a law school is about more than simply learning processes and data, and the curriculum or environment cannot be morally neutral. Part of the point of any educational experience is that individuals develop and change, and there is also a clear imbalance of power between students, and the institution and staff members who are providing their teaching and much needed qualification. Regulatory bodies acting on behalf of the State are right to be concerned about the pressures and influences to which students are exposed on the one hand, and the opportunities which they have for personal growth and exploration, on the other. This is relevant in terms of protecting the welfare of the comparatively disempowered individual learners, and also the interests of the society in which they might one day be operating as advocates and judges.
Thirdly, if a law school were allowed to operate in this way, public confidence in the justice system could be undermined. It was argued by the university that graduates of Trinity Western would have to abide by the same professional ethics as everyone else, and that there was no evidence that they would discriminate against LGBTQ people in their working life, as a result of their private beliefs. Nevertheless, if a lawyer or judge was known to have graduated from a Law School which condemned, amongst other things, homosexual relationships, what message would this send to third parties? If a man was accused of having sexually assaulted another man, but protested that he was innocent and that it was a consensual encounter, how would he feel if a graduate of Trinity Western was appointed as his publically funded lawyer? If a bisexual mother was involved in a dispute as to whether her child should live with her and her female partner, or the child’s biological father and his wife, would she feel confident that a judge who trained at Trinity Western would be objective?
In light of all of these considerations, it is not appropriate for an educational establishment to demand that all students and staff sign a document condemning sexual relationships outside of heterosexual marriage, and still want to prepare people for public service in the justice system. We understand that the private character of the university adds an additional layer of complexity, but the public nature of the service being provided should not be underestimated. This decision should not be interpreted as evidence for any purported “hierarchy of rights” when it comes to the conflict between protection of religious freedom and prohibition of discrimination on the grounds of sexual orientation or gender identity (and we would certainly not support any such hierarchy were one to be introduced). No one protected characteristic recognised by human rights or equality law is more important than any other. The rights which must prevail depend upon the circumstances, a point implicitly endorsed by the court in its reasoning in this case, as the judges stressed that they found the interference with religious freedom to be limited, implying that a more serious interference might have resulted in a different outcome.
Sometimes, religious rights will and should prevail. For instance, we strongly endorsed the provisions of the Marriage (Same-Sex Couples) Act 2013, which empowered religious denominations in England and Wales to reject the celebration of homosexual marriages if they saw fit. That was a clear example of a legitimate internal decision of a religious body and an acknowledgement of its collective freedom. The balancing of rights always depends upon the context, but we would argue that the Canadian court in this instance came down on the correct side of a complicated debate.
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Law Society of British Columbia v Trinity Western University 2018 SCC 32
