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Non-Discrimination in Legal education in Canada

Nova Scotia Barristers Society is Canada's first to undertake public consultation on recognizing Trinity Western U

by Sarah Slaunwhite

Students and staff at TWU sign a 'Community Covenant', which critics say discriminates against students on the basis of sexual orientation and marital status. [Photo: dorsetcollege.ca]
Students and staff at TWU sign a 'Community Covenant', which critics say discriminates against students on the basis of sexual orientation and marital status. [Photo: dorsetcollege.ca]

K'JIPUKTUK (Halifax) – Bob Kuhn, president of Trinity Western University, in a public consultation to the Nova Scotia Barristers Society on March 4th, claimed that not recognizing a law degree - from an institution that upholds discriminatory policies based on sexual orientation and marital status - would be discriminatory to future TWU law graduates..

Trinity Western University (TWU) is a private Evangelical Christian University in Langley, British Columbia, that has been gaining attention across Canada since the university submitted a proposal in July 2012 to offer a Juris Doctor program in Law.

In BC, religious organizations are exempt from adhering to the provincial Human Rights Code; however, no such provision exists in Nova Scotia’s Human Rights Act.

This is important because TWU’s admissions and hiring policies require students and staff to sign onto a “Community Covenant,” which explicitly discriminates against students and staff on the basis of sexual orientation and marital status.

On December 16th, 2013, a Special Advisory Committee of the Federation of Law Societies of Canada (FLSC) - the national governing body representing Canadian lawyers – granted preliminary approval of TWU’s proposed law program. However, the legitimacy of the committee’s decision has been questioned by many, as there was a concerning lack of transparency, several procedural issues, as well as deficiencies in the Committee’s membership.

The Dalhousie Student Union (representing the interests of 14 000 students), the Law Students Society (representing 600 Dalhousie law students), the Faculty Council at the Schulich School of Law, as well as the Canadian Council of Law Deans have all taken stances against TWU’s proposed law school.

Over 250 individuals and community groups have supported a petition created by OUTLaw, a sexual rights society at the Schulich School of Law.

Additionally, the Canadian Bar Association recently passed a motion urging the FLSC and the provincial and territorial law societies to require equal opportunity without discrimination for all persons involved in legal education.

The FLSC is the national coordinating body of fourteen provincial and territorial law societies. These societies now have the choice to recognize a law degree within their province or territory. As a result of the high volume of Nova Scotians raising opposition to TWU, the Nova Scotia Barristers’ Society (NSBS) has been the first society to undertake a public consultation process to help in its determination of whether TWU graduates will be eligible to practice law in Nova Scotia.

The Halifax Media Co-op requested interviews from five individuals in order to understand the implications this proposed school of law could have on Nova Scotia’s commitment to non-discrimination, access to justice, and access to legal education. These voices and perspectives underscore why the NSBS needs to be held accountable to their strategic plans and commitment to non-discrimination.

These individuals are:

Megan Leslie: Member of the Canadian Parliament for Halifax, a Queer rights activist, and a co-founder of OUTLaw.

Laura (Clark) MacIntosh: Peer Ally at Dalhousie University, who provides support for students, faculty, and staff of all gender identities and sexual orientations.

Lee Staples: Second year JD Law student and an Executive Member of OUTLaw.

Ed Canning: Practicing employment law in Hamilton, Ontario, for 22 years.

Sheena Jamieson: Support Services Coordinator at The Youth Project in Halifax. The Youth Project is a non-profit organization that works with youth around issues of sexual orientation and gender identity. The mission of The Youth Project is to make Nova Scotia a safer and happier place for lesbian, gay, bisexual and transgender youth.

TWU’s Community Covenant is not offensive on its face in any respect,” – TWU President Bob Kuhn addressing the NSBS’ Executive Council on March 4th, 2014

The Community Covenant is a mandatory agreement to honour the “traditional, biblical Christian values and principles” of the school that students and faculty must sign in order to attend Trinity Western University. This covenant prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

For failure to adhere to the policy, students face expulsion, and staff face job termination.

Leslie explains, “The covenant is trying to regulate behavior. It is saying that one type of behavior is acceptable, while other types are not. When someone signs onto this covenant, they agree not to engage in the unacceptable behavior. The problem is that the behavior deemed unacceptable is based on sexual orientation.”

MacIntosh was asked to explain how requiring students, faculty, and staff to sign the covenant would impact the university experience, and the educational environment.

“Dalhousie University strives to create an open and safe space for students to self-identify their gender identity and sexual orientation,” remarks MacIntosh. “The Community Covenant at TWU concerns me in that it is a deterrent from students identifying as anything other than cisgender and straight. This contract creates a University steeped in institutional heterosexism...preventing the expanse of knowledge and cultural competence of all students.”

Staples explains that mainstream media and supporters of Trinity Western’s proposed school of law are constructing this as a Christian versus LGBTQ+ rights issue, emphasizing, “this is an inappropriate and misleading false dichotomy.”

“Many members of the LGBTQ+ community are also Christian-identified, and Christian beliefs exist on a spectrum. There are many gay/queer Christians as well as Christian allies that support LGBTQ+ rights and recognize that using an absolute claim to religious freedom to trump the basic human rights of a marginalized group is inappropriate.”

Jamieson notes that, “there needs to be accountability on behalf of our systems to prevent this disguised homophobia from becoming validated law practice.”

Leslie notes that there may be a tension between religion and sexuality, and that she accepts that tension. “For me what it comes down to is: having a religious school is acceptable, but to have a covenant that says students cannot engage in behavior linked to sexual orientation is not acceptable… I do not think TWU should be allowed to make students sign that covenant.”

They can go somewhere else,” responds Trinity Western University.

Trinity Western University has stated that any members of the community who cannot accept the standards laid out in the covenant can seek education or employment elsewhere.

At the NSBS public meeting on March 4th, President Kuhn questioned why gay couples would want to attend the school. Kuhn said they could go elsewhere and also stated that TWU had not dealt with the issue of having a gay couple at their school before.

“Are we really comfortable saying to gay and queer law students that the answer to this issue is for them to go elsewhere?” asked Staples in a speech to the NSBS on February 13th. “Law school is more competitive than ever- with thousands more applications each year than seats… Many students do not have a choice of which law school they attend. They go to school where they get in.”

Leslie adds, “By saying: ‘Go somewhere else’ TWU is discriminating against a community, saying that they are not worthy and not fit to go to that institution. Trinity Western believes that members of the queer community have behaviors that are not worthy; that they are deviant. That is discrimination. I don’t really know how to sum this up other that. This is discriminatory.”

“Claiming that LGBTQ+ people can always go to a different law school is as palatable as claiming that racially segregated restaurants should be legal because the non-Caucasians can simply go to a different restaurant,” comments Canning.

Jamieson insists that recognizing a law degree from Trinity Western would impact more than just law students and lawyers.

“It sends a message to Canadian LGBTQ+ youth that we are reintroducing spaces where they cannot be fully realized, spaces that do not recognize them as full and complete people, even if they never set foot in them.”

Today, as tuition fees continue to increase, there are significant barriers to students seeking not only access to law school, but post secondary education in general. These barriers work to systematically disadvantage students, particularly along the lines of class, race, gender, and ability.

Law school is not accessible to the average Canadian student, says Leslie, who attended Schulich School of Law in 2001-2004.

“When I was in law school they deregulated tuition. This diminished accessibility, especially for marginalized groups. The more barriers that you add, the less accessible legal education becomes.”

Staples emphasizes this, asserting that “It is no surprise that the majority of my classmates - as well as law students across Canada - are white, middle class, and heterosexual, and that diversity and inclusion are things that, which have improved in some contexts, continue to be key struggles in legal education.”

The Dalhousie Law program annual tuition has increased from $11,666 in 2011, to $16,870 this year - with tuition expected to continue to rise.

Staples emphasizes that LGBTQ+ students are already significantly underrepresented in legal education, and that recognizing a degree from TWU would condone the creation of a legal education system that would have more seats available for straight students then for gay and queer students.

“In light of this, we should be talking about how to increase accessibility to law school for people from marginalized communities - not looking at condoning a law school that discriminates against a marginalized group that is already underrepresented in legal education,” says Staples.

Many have questioned how TWU’s discriminatory admissions policies can be reconciled with their requirement to teach human rights law and constitutional law, as well as legal ethics and professional responsibility.

“TWU's values would make it difficult for members of the Queer community to be 'out' on campus, thus limiting the capacity for deep, enriching conversations and mutual learning that is integral to create a generation of graduates with the knowledge and desire to uphold the Canadian Charter of Rights and Freedoms.” says MacIntosh.

Leslie says, “I was a founding member of OUTLaw. When we started OUTLaw we had to figure out what we were doing as a group. Were we here to talk Queer Legal Theory? To create safe spaces in law school? To advance issues for queer students? Or were we a social club? We were all of these. We were able to create a safe space, as well as a community within law school. And some members of our group actually came out after law school. That says something about how difficult a space Law school is to navigate.”

“Law school is already stressful enough,” says Staples. “Imagine having to navigate the already challenging process of coming out in an environment that explicitly discriminates against you, and where you are told that you could be kicked out for being who you are.”

Jamieson states, “There is a major assumption in mainstream discourse that Canadian society is on an upward trajectory towards equality and progress - that we will get there eventually if we all just wait it out. This is tenuous, at best. We have the potential to move backwards into the discriminatory thinking that we came from. It is integral to think of what this will do to those who do not have access to practicing or interpreting the law, and will only be subject to it.

Kuhn’s recent rebuttal to the outpour of opposition to TWU’s school of law involved a two-hour speech to the NSBS, which primarily focused on the belief that TWU graduates would face discrimination if NSBS does not recognize a degree from their institution.

“If this is a major concern for them, perhaps they should rethink their discriminatory policies,” says Staples. “They [TWU], unlike the LGBTQ+ community, are not a historically marginalized group - nor do they face systemic discrimination and violence that LGBTQ+ people face on a daily basis.”  

“If TWU, as an legal educational institution, chooses to actively discriminate against a historically marginalized group (as they are doing through maintaining the Covenant) they should appreciate that one of the consequences might be that Canadians stand up for LGBTQ+ rights, as most would likely agree that in today's context extreme claims to religious freedom do not trump human rights in our society, nor should it be used to discriminate against a marginalized group.”

The NSBS was the first Barristers’ society to both commit and undertake a comprehensive public consultation in their decision of whether or not to recognize a law degree from TWU’s proposed law school in Nova Scotia. It is leading the way on this issue, and the rest of the territorial societies are watching closely to see how they reconcile their strategic framework, which encompasses firm commitments to equity, non-discrimination, and access to justice, with TWU’s explicitly discriminatory policies, and their refusal to reconsider them. The NSBS will make their decision on April 25th, 2014.

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2094 words


very shocking! Discrimination

very shocking! Discrimination is education is a heinous thing. Any kind of discrimination is truly bad and I do not support it. Education system should be clean.

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