Elaine Craig is an associate professor at the Schulich School of Law at Dalhousie University. Her latest book is Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession.
Last week, Canada’s top court recognized that imposing minor limits on a Christian community in order to avoid significant concrete harm to a historically marginalized and oppressed minority is a reasonable thing to do. In last Friday’s landmark decision in the Trinity Western University case, the majority of the Supreme Court of Canada determined that it was reasonable for law societies to refuse to accredit TWU’s proposed law school.
Law societies in Ontario, British Columbia and Nova Scotia refused to accredit TWU because the evangelical Christian university requires its students, staff and faculty to sign a mandatory community covenant that discriminates against LGBTQ people. To study or work at TWU, one is required to sign a contract agreeing not to engage in same-sex sexual intimacy under any circumstances.
In its reasons, the court relied on an article authored by my late colleague and friend, Dianne Pothier. In addition to being an active ally of the queer community, she was also a committed Catholic. She attended church regularly. She was an involved member of her local parish.
I asked Dianne once how she reconciled her Catholic faith with her activism and advocacy in support of equality for gays and lesbians, including her support for same-sex marriage (which the Catholic Church opposed) and her opposition to the accreditation of a law school at TWU (which the Catholic Church supported).
Dianne’s response was short and delivered with a tone that suggested to me that she considered the answer to be self-evident: Accrediting a law school that excludes gay people would be harmful. She appeared to experience no angst or even difficulty reconciling her strong and public support for the queer community with her committed Catholicism.
It is a recognition of this harm that underpins the court’s decision on Friday. It was a failure to recognize this harm that led the British Columbia Court of Appeal and the Nova Scotia courts astray.
While acknowledging that the lack of a Christian law school will limit (to an insignificant extent) the religious freedom of prospective TWU law students, the majority of the Supreme Court of Canada accepted that this modest impact was outweighed by the harmful consequences of accrediting a new law school that excludes the vast majority of LGBTQ people on the basis of their sexual orientation.
The court recognized that creating inequitable barriers to legal education harms the public and acknowledged that accrediting TWU’s law degree would pose significant harm to sexual minorities.
June has often been a good month for the queer community in terms of achieving legal recognition. Think, for example, of the June, 1969, Stonewall demonstrations frequently cited as the birth of the contemporary sexual-minority rights movement or the Ontario Court of Appeal’s historic June, 2003, decision granting the right to same-sex marriage. The Supreme Court of Canada’s decision in TWU represents another step toward recognizing LGBTQ people as equally worthy of respect and dignity.
But there is another important, broader principle which was articulated by the court in Friday’s decision: Law societies are obligated to regulate in the public interest and maintaining equal access to, and diversity within, the legal profession is strongly in the public interest. A legal profession that is diverse is more competent, more responsive to the needs of the public and worthier of the public’s trust and confidence.
What does this mean for law societies?
The legal profession remains rife with systemic inequities that marginalize legal professionals on the basis of discriminatory factors such as race, gender identity and disability. Consider, for example, the Law Society of Ontario’s province-wide consultation and report, which documented long-standing and significant barriers for racialized lawyers and paralegals at all stages of their legal careers. No doubt a similar assessment of the legal profession in other provinces would yield similar results.
The authority and obligation of law societies to regulate the legal profession in a manner that maintains equal access to and diversity within the legal profession has now been affirmed by the Supreme Court of Canada. While the decision’s recognition of the dignity and equality interests of sexual minorities in Canada is cause for celebration, its broader acknowledgment that to regulate in the public interest requires ensuring diversity within the profession is a rallying cry.
In the TWU matter some law societies (such as the ones in B.C., Ontario and Nova Scotia) showed leadership and commitment to regulating the legal profession in a manner that is consistent with Charter values. Others (such as Newfoundland, Alberta and Saskatchewan) sat back and waited. Let’s hope that the court’s TWU decision encourages law societies across the country to accept and act on their responsibility to protect and promote diversity within the legal profession.