When rights collide: Why were so many of the provincial law societies silent in the face of clear LGBTQ discrimination?

In a society that prizes the “rights and freedoms” guaranteed to us by our constitution, sorting through what to do when rights collide can be challenging. This past week, the Supreme Court of Canada dealt with that very issue.

The Supreme Court protected the dignity of LGBTQ people in Canada and the integrity of the legal profession by upholding decisions of the legal regulators (Law Societies) in British Columbia and Ontario to refuse accreditation for Trinity Western University’s proposed law school.

Trinity Western is a private, evangelical Christian university which requires its students and staff to agree to what it calls a “community covenant.” Among other things, it prohibits sexual intimacy except between married, opposite-sex couples and no pre-marital sex or sex between married same-sex partners allowed (no same-sex sex at all, in fact).

As Trinity Western sought accreditation for its law school in 2014, many lawyers, law students and law societies across Canada spoke up, concerned about what it would mean to give official sanction to a law school that effectively bans LGBTQ students from attending.

But many other law societies sat on their hands.

Entry into the legal profession is strictly regulated. The Law Societies are often considered gatekeepers of the profession and have a duty to regulate in the public interest. It was on this basis that some of the law societies refused to accredit Trinity Western.

In 2014, I spoke at the Law Society of Manitoba’s annual general meeting, asking their governing body (the Benchers) to join Ontario, BC and Nova Scotia and refuse to accredit Trinity Western’s proposed law school. At the time, I told the Law Society that “approving and accrediting TWU’s law school demeans our profession and will diminish public confidence in the administration of justice.”

Their response was to pass the buck.

According to the Law Society of Manitoba, law school accreditation is the responsibility of the Federation of Law Societies, and anyway, accreditation only considers curriculum, not other factors. While the Federation had indeed been delegated the responsibility for accreditation, in light of Trinity Western’s discriminatory covenant, other law societies had rightly revoked that delegation. I was asking Manitoba to do the same.

Disturbingly, variations of the same arguments made by Manitoba’s law society were made by Trinity Western itself to the Supreme Court defending their right to accreditation.

However, the Supreme Court, at the urging of those other, more courageous Law Societies, rejected that logic and decided that not only did the individual Law Societies have the authority to make the decision, it was right for them to have done so. The majority decision explains that the public interest duty of the Law Societies allows and requires them to consider issues like equal access and diversity within the legal profession.

Not only were the Law Societies within their jurisdiction to refuse to accredit Trinity Western’s law school, the Court found that it simply wasn’t plausible that denying accreditation would limit the religious rights of the Trinity Western community in a serious way.

While this fuss over who gets to be a lawyer may seem like an ivory tower problem, it is a concern that affects every Canadian. Access to justice is a national crisis and limiting who gets to be a lawyer by excluding LGBTQ law students from a portion of the already limited supply of law school seats makes that justice even less accessible to Canadians.

Going forward, the issue of Trinity Western’s accreditation may become moot. They may choose not to open their law school, or they may choose to make their “community covenant” optional instead of mandatory. But until that happens, law societies, including Manitoba, must act.  They must demonstrate that they stand for justice, for equality and for the law itself by denying accreditation to TWU.

To do otherwise would diminish the reputation of the legal profession throughout Canada, would shake the public’s confidence in the fairness of the justice system, and would give license to those who believe that LGBT people are less deserving of dignity and respect.

Every law student in Canada learns early on that “justice should not only be done, it must be seen to be done.”

The time for action came four years ago, but it has not yet gone.

Corey Shefman is a lawyer at Olthuis Kleer Townshend LLP, representing Indigenous peoples, persons and organizations and an expert advisor with EvidenceNetwork.ca at the University of Winnipeg. Follow Corey on Twitter @coreyshefman.