Sexual Orientation

The Supreme Court of Canada has issued a decision regarding alleged discrimination based on sexual orientation at a private, religiously-based university in British Columbia.²⁹⁹ The case arose from the decision of the British Columbia College of Teachers (BCCT) to deny the request of Trinity Western University (TWU) that it be authorized to assume full responsibility for the final year of a five year baccalaureate degree in education. The BCCT invoked alleged discriminatory practices against gays and lesbians found in a TWU Community Standards document that all its students were required to sign. That document contains a paragraph identifying practices that are biblically condemned and enjoining students to refrain therefrom. These include drunkenness, profane language, dishonesty and cheating, abortion, and various sexual sins such as premarital sex, adultery and homosexual behaviour. The BCCT took the position that it would be contrary to the public interest and public policy to accept the TWU request, given that its proposed program reflected discriminatory practices based on sexual orientation. It felt that there was a risk that graduates of TWU would not provide a discrimination-free environment for students in the public schools should their entire teacher education program be under the exclusive control of TWU. In denying accreditation for the final year (thus maintaining the requirement of a final year attendance at Simon Fraser University), the BCCT purported to act pursuant to its authority under section 4 of the Teacher Profession Act to Aestablish, having regard to the public interest, standards for the education, professional responsibility and competence of its members, persons who hold certificates of qualification and applicants for membership..."³⁰⁰ The decision of the BCCT was overturned by the British Columbia Supreme Court, and an appeal by the BCCT to the provincial Court of Appeal was rejected.³⁰¹

On the substantive issue of alleged discriminatory practices, the Supreme Court looked first to TWU documents. While it allowed that the Community Standards were such as to make it unlikely that a homosexual student would seek admission to TWU, that alone does not establish a discriminatory practice. It pointed out that TWU as a private religiously based institution is exempt in part from British Columbia human rights legislation (i.e. it can favour adherents to is own religion). Moreover, its private status precluded the application of the Canadian Charter of Rights and Freedoms. That said, the Court felt that arguments to the effect Athat the voluntary adoption of a code of conduct based on a person's own religious beliefs, in a private institution, is sufficient to engage section 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.@³⁰² Freedom was understood by the Court to embrace A...both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.@³⁰³

The Court recognized that protection from discrimination based on sexual orientation is guaranteed in both the Charter (as an analogous ground) and the human rights legislation of British Columbia, as is freedom of religion and conscience. It is the potential conflict between these two guarantees that is raised in the case of TWU, one that can be resolved by the proper delineation of the rights and values involved. While the impact of TWU's admission policies on the public school environment is a legitimate concern of BCCT in assessing the public interest, reasoned the Court, such impact must be assessed in light of concrete evidence. In this regard, the Court concluded that ATWU's Community Standards, which are limited to prescribing conduct of members while at TWU, are insufficient to support the conclusion that the BCCT should anticipate intolerant behaviour in the public schools. Indeed, if TWU's Community Standards should be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church. The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.@³⁰⁴ In short, the BCCT had made no attempt to weigh the various rights involved in the situation presented by the TWU request for accreditation. Finding this to have been legally incorrect, the Supreme Court then proceeded to conduct that inquiry itself.

The Court identified two contextual factors it considered of great significance. First, the constitutional framework of Canada protects religious public education rights, that protection being part of the historic compromise that made Confederation possible. Moreover, many Canadian universities have traditions of religious affiliation. Second, the human rights statute of British Columbia provides that a religious institution does not offend the principles set out in that legislation if it prefers members of its own religious belief. How could one then reasonably argue that private institutions are so protected Abut their graduates are de facto considered unworthy of fully participating in public activities [?]."³⁰⁵ Other legislative initiatives of the government of British Columbia belied this conclusion as well: AIn this particular case, it can reasonably be inferred that the British Columbia legislature did not consider that training with a Christian philosophy was in itself against public interest since it passed five bills in favour of TWU between 1969 and 1985.@³⁰⁶ As to the effect all this might have on homosexual students, the Court remarked: AWhile homosexuals may be discouraged from attending TWU, a private institution based on particular religious beliefs, they will not be prevented from becoming teachers. In addition, there is nothing in the TWU Community Standards that indicates that graduates of TWU will not treat homosexuals fairly and respectfully.@³⁰⁷

This last observation led the Court to emphasize that a distinction must be made between holding a belief and acting upon it: A...the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of British Columbia, the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.@³⁰⁸ Curiously, the Court seemed to ignore the distinction between an institution that actively promotes racist or homophobic views and one that doesn't.

Alleged discriminatory conduct by a teacher can rightfully be the subject of disciplinary proceedings before the BCCT. While conduct subject to censure is normally related to on-duty responsibilities in the schools, off-duty conduct that has the effect of Apoisoning@ the environment within a school may be subject to disciplinary sanctions as well. In the case at bar, there was no evidence presented that related to past conduct of graduates of TWU being tainted by unacceptable discriminatory behaviour in the course of performing their duties as teachers. In effect, the BCCT had denied accreditation to TWU in the absence of any evidence of past problems with graduates of Christian institutions. The Court pointed out that BCCT A...could have asked for reports on student teachers, or opinions of school principals and superintendents... [or] examined discipline files involving TWU graduates or other teachers affiliated with a Christian school of that nature.@³⁰⁹ Its failure to do so constituted a fatal legal error.

In rejecting BCCT's appeal, the Supreme Court also considered whether the original order of mandamus issued by the trial judge requiring BCCT to approve the accreditation of TWU should be maintained. Given the statutory restrictions on BCCT's discretionary powers and the fact that denial of accreditation was motivated only by alleged discriminatory practices, the original order was considered appropriate. In short, the Court found that BCCT had acted on the basis of irrelevant considerations when it invoked the religious beliefs of TWU rather than the impact of those beliefs on school environments. In so doing it had acted unfairly.

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End Notes