This article originally appeared on VICE Canada.
In September 2016, Trinity Western University (TWU) plans to open a Christian law school where gay people would not qualify for admission. This obviously restrictive — and highly offensive — policy has caused a legal uproar around Canada. To simplify the question being asked in legal circles around Canada: Is this even legal? On Tuesday, a general meeting between members of the Law Society of British Columbia was held — to decide whether or not to uphold the school’s legal status.
Resistance to TWU’s law school began shortly after the faith-based university proposed its plan to the British Columbia Ministry of Advanced Education and the Federation of Law Societies of Canada in June 2012.
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The first true obstacle for TWU law becoming accredited came on April 24, however, when the Law Society of Upper Canada voted against the school, making it impossible for its graduates to practice law in Ontario. The vote was 28-21 with one abstention, and according to the Toronto Star, that was the first time the Law Society of Upper Canada (our country’s oldest law society, by the way) voted against accrediting a law school.
In the same month, the Law Society of Nova Scotia voted to approve TWU’s law school on the condition that it drops the Community Covenant Agreement, a document students are required to sign that prohibits sexual intimacy between members of the same sex. And on April 11, the Law Society of British Columbia voted to approve TWU’s law school — a decision that could be overturned as a result of today’s general meeting.
The Law Society of British Columbia’s original decision to approve the law school did not surprise me. I couldn’t help but wonder if the province simply did not want to repeat 2001, when the British Columbia College of Teachers lost an appeal to the Supreme Court of Canada where they were arguing for “the right to deny approval of TWU’s teacher education program because students while at TWU agree to refrain from extramarital sex, including homosexual behavior.”
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TWU successfully argued that — despite their anti-gay policies — their students are required “to show love and respect to everyone.”
In spite of TWU law’s turbulent trek through some of Canada’s legal communities, law societies in Nunavut, Manitoba, Saskatchewan, Alberta, and Prince Edward Island have approved the school for accreditation. My first reaction to this can be summarized quickly as: “Damn, what a bummer.” But, to figure out what’s going on in the heads of the leadership over at TWU, I called up their president Bob Kuhn, and here’s what he had to say.
VICE: The Community Covenant Agreement requires TWU students to abstain from sex, unless that sex is with their spouse, who must be a member of the opposite sex. Bob Kuhn: Yes.
Are off-campus students required to abide by the Community Covenant Agreement? It applies to students who are part of our community, and that includes off-campus students.
What happens to TWU students who participate in sexual activity with a member of the same sex? We’ve never had to deal with the issue of same-sex sexual intimacy. In a general fashion, we respond to all variations from the Community Covenant Agreement in a personal, relational way and that means that there’s no beaten path in the road with respect to the issues.
The Community Covenant Agreement states that TWU welcomes all students who qualify for admission. Does a person who is legally married to and engages in sexual activity with a member of the same sex qualify for admission to TWU? Well, let’s put it this way: somebody in that position would immediately recognize that their values would conflict with the values that are in the Community Covenant Agreement, so a welcomeness is reflected by the circumstances.
It’s a bit of an academic question I suppose, because anybody applying would be advised or would know that the Community Covenant Agreement is in place. It’s difficult to say that they would be compliant with it. Somebody who tends not to be compliant with it would probably not apply, unless it was a confrontation application, which we haven’t had yet, and I hope we won’t have.
Yes, someone who is legally married to their same-sex partner, and who engages in sexual activity with that partner, would probably not want to apply to TWU. My question, however, is whether that individual would qualify for admission. Well, I can imagine circumstances where they would qualify for admission, but they would not be typical circumstances. From a technical perspective, it would be a matter of do they qualify from a position of being able to sign the necessary documents, those documents being the Community Covenant Agreement. If they can’t see their way through to signing those documents, then they would not qualify for admission.
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What is a faith-based institution? Faith-based is a broad term. It can apply to many different institutions that see their worldview, or perspective, is based on a religious — and it could be any religion — perspective. So, faith-based means that somebody who is a member of that community or a member of that institution is basically committed to or compliant with the faith-oriented perspective.
In the context of TWU, faith-based would be the founding fathers, if you will, of the institution believed that having an education from a Christian perspective, specifically an Evangelical Christian perspective, was a worthy goal that had real merit. The fathers started a small college that was a liberal arts college but it teaches from a faith-based perspective. It teaches from a faith-based worldview, that is specifically Evangelical Christian in nature.
In the Canadian Charter of Rights and Freedoms, section 15 states that every individual is equal before the law. Yes.
The faith-based values at TWU conflict with the values of at least 5 percent of Canada’s population. Because of that, every individual is not afforded equal rights at TWU. Why should a law school that does not afford every individual equal rights exist? Canada is tolerant of a wide variety of viewpoints. We have a pluralistic society, which we purport to nurture, and it necessarily involves some aspect of conflicting viewpoints. In fact, that’s the nature of the country’s values.
To say that 5 percent of the population would not find a comfort level, perhaps, at TWU could be said of many, many organizations, not necessarily related to same-sex orientation, but relating to religious groups, relating to ethnic groups, relating to political perspectives. I’m intrigued by, for instance, the news that Justin Trudeau would not permit a candidate to run for the Liberal party who has a view that would be considered anti-abortion or pro-life. In the same way, Christian organizations such as TWU have a niche, if you will — a perspective that is going to attract only a portion of the population — but it does have a legitimate place in society, and has been determined to have such by the Supreme Court of Canada in 2001.
You’re referring to when Supreme Court justices concluded that “the proper place to draw the line [between freedom of religion and discrimination] is generally between belief and conduct,” in the 2001 case of Trinity Western University v. British Columbia College of Teachers. Yes. And what I think is being said now is: ‘We didn’t like the result the first time, we want a different result from a court 13 years after a decision was made.’
When there are competing rights, how do you discern between freedom of religion and discrimination? When you talk about discrimination, you must always refer to a definition of discrimination, which is a definition that implies unlawful discrimination. In the case of TWU, the answer’s very simple. The Supreme Court of Canada has defined that balance and have concluded that TWU is on the right side of the balanced equation, and that is they [the Supreme Court of Canada] have protected the religious freedom in exactly the same circumstances as we’re currently facing [in 2001].
The website for TWU’s law school says that the school will be a place where the great questions of meaning, values, and ethics are confronted, debated, and pondered, and the broad and diverse communities of Canada are served through a richer understanding of the law. If members of the faculty at TWU must abide by the Community Covenant Agreement, how can you be sure that the people who students learn from represent the broad and diverse communities of Canada you expect your graduates to serve? Well, for 52 years we’ve been doing exactly that, and it won’t change in the law school. The perspective brought by our educational staff is unquestionably in the excellent category, which has been approved at every level by every third-party, objective reviewer.
It’s just not conceivable that the perspective of one [group] of individuals that has not even looked at the academic performance at TWU could determine that it’s not adequate.
I’m not questioning the performance of the faculty, I’m questioning the diversity within the faculty. For example, do you have any openly gay faculty members who, within the law school, will represent the perspective of at least 5 percent of Canada’s population? No.
The learning experience at TWU is actually probably at least as much, if not more, comprehensive than you will find at a public university because there are certain topics dealing with religious perspectives that are not covered at all in a public environment. Specifically, a public law school. I would argue that the kind of instruction that takes place at TWU, or in a law school that would be run out of TWU, is not limited to the ability of one professor, or any group of professors, to personally attest to any particular viewpoint.
A web page that describes the rationale behind TWU’s law school says that the school plans to partner with agencies that serve the oppressed. Who does TWU consider to be oppressed? Our experience with community activity, that means not just the community of British Columbia, but the community internationally, [suggests] the identity of the oppressed depends on the circumstances in which you find them.
We’ve had individuals work on projects in Rwanda, we’ve had groups serve the downtown eastside of Vancouver, where there’s issues of prostitution, issues of drug abuse, or substance abuse generally, certainly alcohol being one. The oppressed includes a broad group of people.
Does TWU regard people who engage in sexual intimacy with members of the same sex as oppressed? Some people have been historically oppressed, and I would include LGBT community members in that category. Others have been recently oppressed, and I would include some Christian groups in that context.
At TWU’s law school, are you are serving the oppressed by prohibiting a member of a community that has, in your words, been historically oppressed, from being a student? I don’t see the issues as related. I don’t see it as an oppression issue at all. There are many choices of law schools. If one law school happens to be a particular perspective that doesn’t agree with other perspectives and it’s lawful to do that, there’s no reason to require everyone to attend.
The website for TWU’s law school says that the Law Society of Upper Canada’s decision to reject otherwise highly qualified [TWU law school] graduates sends a message that in Ontario, you cannot hold religious values and fully participate in society. Yes.
What would you say to someone who argues that by requiring students at TWU’s law school to abide by the Community Covenant Agreement, you are rejecting highly qualified Christian, homosexual law school applicants and sending a message that at TWU, you cannot hold LGBTQ values and participate in the school or campus community? First of all, the Law Society of Upper Canada has a public duty, and cannot discriminate against a Christian organization that produces graduates, unless they can establish, somehow, that those graduates would be a negative influence in the community in which they’re called to serve. Law students who graduate from TWU, five years from now, are being told in advance, five years even before they’ve graduated from the law school, that they are not acceptable. They’re not acceptable because they have gone to a particular law school. They’re not being told that they’re not acceptable because they’re inadequate technically as lawyers, ethnically as lawyers, or in any other way. They’re simply being identified by the law school that they came from.
What risk, if any, exists for students at TWU’s law school, and therefore students who have agreed to abstain from engaging in homosexual activity on account of university policy, to develop negative opinions about homosexuality? I think the chances of that are absolutely nil. If you look at the situation objectively and say: ‘Do the graduates of one of these public university law schools, are those graduates likely to treat Evangelical Christian clients well, or without bias?’ The answer, I think, in most cases would be yes. They would not treat them without bias. They’d be able to treat them fairly, and they’d be maintaining their ethics.
As a lawyer who has practiced for 34 years, who is an Evangelical Christian who adheres to teachings from a biblical perspective, I’ve found it offensive that somebody would say that because I believe a certain thing, I do not have the capability of practicing law in an ethical and professional manner.
I’m sure you’ve read some of the commentary [about the Community Covenant Agreement] online. I dare say that the commentary is not just offensive, but is harmful and derogatory in an extreme fashion against Christians. That shows intolerance.
How does it feel to be the president of a university that is known for excluding people? Historically, the LGBT community has been treated poorly. Not just by the world at large, but by churches and Christian environments. That historically has been the case. I feel bad when I think that some people have been inappropriately treating LGBT community members, and I have relationships with members of that community, and I value those relationships, but we disagree on a sexual moral issue.
On a personal level, when we’re not dealing with behaviour of a sexual nature, there’s no difficulty at all in relating to those people as individuals. I think that should be clear that we can have a community that is defined with certain sexual ethics, and the LGBT community can define its community as it wishes.
Take the issue of heterosexual sex outside of marriage. We take exactly the same position there as we do with homosexual sex.
But in the context of married couples there is a difference. Heterosexual married couples are permitted to have a sexual relationship, according to the Community Covenant Agreement, but homosexual married couples are not afforded the same right. What you’re saying is: "Forget about the fact that you have a religious view."
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