ANONYMOUS CONTRIBUTOR
Of late, it has been almost impossible to visit a social media website and not encounter some discussion regarding Trinity Western University’s (TWU) request to accredit a new law school. As a law student who is also gay, I would have to be living in a cave to ignore this heated discussion. The purpose of this article is to relay my opinion on this issue. I am a strong supporter of gay rights, including but not limited to gay marriage. The current debate over Prop 8 in California that has also been gaining massive public attention these days strikes me as strange. However, I am not blindly driven by “gay” propaganda. I do my best to consider the different values of our Canadian Charter, while trying to formulate my own perspective on relevant issues. My view, in short, is that TWU’s policy regarding sexual abstinence is discriminatory; the scope, however, is extremely narrow, and more importantly, its implications affect only those who voluntarily choose to attend the institution.
First, I want to discuss the narrowness of the scope of this provision. For the purpose of clarity, let’s consider the implications in both pre-marital and marital contexts. Note, however, that by marriage, I mean a marriage as recognized by the law. As per the TWU Community Covenant, any kind of sexual intimacy is prohibited in a pre-marital context. Here, one’s sexual orientation plays no role whatsoever, and thus, this policy is not discriminatory on that basis. The discussion sparks controversy only when we talk about couples in a marital relationship. Statistically, there are very few married couples who attend law school, and so this discussion is futile from a purely numbers perspective. However, one cannot overlook discrimination based on the rarity of incidents; it’s about the principle of ensuring equality, and therefore, we need to consider whether or not the policy is discriminatory.
As I stated above, this particular narrow-scoped policy must be recognized as discriminatory. It is not fair to allow sexual intimacy between heterosexual married couples and deny the same act between homosexual married couples. However, this distinction is not an arbitrary one. In fact, I find it very reasonable since it is part of the zone of TWU’s religious freedom.
Framed this way, we must consider if there is a dispute between two conflicting Charter rights (i.e. religious freedom and equality). The answer is both no and yes. No, because the Charter does not apply to the actions of a private institutions like TWU. Yes because, from the perspective of upholding Charter values in our society, the application of this policy will inevitably infringe on either one of the two Charter rights.
The relevant question then is: what course of action would do the least damage to our Charter values? If TWU is granted accreditation, then the equality rights of the LGBTQ members, albeit only in the narrow context of marriage, will be infringed. On the contrary, if TWU is denied accreditation, then the religious freedom rights of TWU will be infringed. Upon further deliberation, it must be noted that while the latter option promotes the equality rights of LGBTQ members, it denies the equality rights of those who wish to study in such an environment by preventing them from associating freely, and this strikes me as hypocritical. In this case, I believe preventing a private institution from regulating its policies not only infringes its religious freedom, but also its equality rights, which are the same set of rights that form the basis of the opposing party’s claim.
While the above discussion is pertinent to this issue, it is also extremely important to note that students voluntarily choose to apply to and attend this institution, which is clearly not the only law school in Canada. It is extremely common for private institutions to have their own set of standards to which they expect their attendees to adhere. For example, a mosque requires men and women to dress and act differently; men and women are even required to be in different areas on the same premises. These rules exist irrespective of one’s motivation to visit a mosque, be it for religious, architectural, cultural, or aesthetic reasons. I may or may not agree with these rules; however, these rules apply only if I choose to enter the mosque. This is an entirely personal and voluntary choice. So, essentially, if I choose to enter the mosque, I am choosing to be subject to differential treatment based on my gender, which may be considered discriminatory by some. However, I find the requirements completely reasonable within the context. To say that we cannot allow mosques to exist because they have discriminatory policies is absurd, because to eradicate mosques would infringe upon people’s freedom of religion, expression, and association rights. The case of a private religious institution, albeit an academic one, is no different.
In conclusion, I believe that this issue is a lot simpler than what it has become. I recently came across an ad campaign with respect to gay marriage rights that impressed me: “Against two dudes marrying each other? Well, then don’t marry one.” The same sentiment is equally applicable in this context: “Against private institutions that prohibit homosexual married couples from being sexually intimate on campus? Well, then don’t attend one.” It’s that simple, really. As a gay law student, I am very content at Osgoode Hall Law School, where there is a lot of support for LGBTQ folks. However, I fail to understand how, as a member of a minority, I can petition to prevent other minority members – a faith-based law school, in this case – from acting within their rights, especially when their actions do not infringe upon my rights unless I voluntarily subject myself to their rules. TWU’s success is highly recognized with respect to the professional training they provide in other academic spheres, so I have no reason to believe why TWU, as a law school, would not be capable of equipping me with adequate legal training, which is the only relevant subject matter to be assessed by the Federation of Law Societies. Therefore, the issue of alleged discrimination is moot for the purposes of accreditation because ultimately, the choice to attend such an institution rests with us, the students.
Note: As of the Obiter Dicta’s deadline, three submissions were received concerning the proposed law school at Trinity Western University, all of which appear herein. The Obiter’s official position on the proposed accreditation is diplomatically vague and was expressed, complete with multiple allusions to the Lord of the Rings, in the March 25 editorial.
However, we do understand that this is a topic on which many Osgoode students hold diverse opinions. There having been no poll, it is impossible to say which position is the majority opinion (if there is one) and which is the minority. In either case, no point of view holds a monopoly in these pages.
In the spirit of debate, the Obiter will continue to accept thoughtful submissions of less than 1200 words on the topic until Thursday, April 11, and will publish them forthwith in its online edition.
We also encourage you to make liberal use of our Comments section below!