Lawyers from two Canadian firms have filed written arguments in a legal challenge against B.C.'s Minister of Advanced Education and Trinity Western University over the province's decision last December to approve a faith-based law school that prohibits same-sex intimacy.
The 105 pages of written arguments filed on Monday in B.C. Supreme Court say the minister, Amrik Virk, created a "two-tiered system of legal education" when he gave the green light to the proposed law school in B.C.'s Fraser Valley. Under the university's community covenant, all students, administrators and faculty must abstain from same-sex intimacy, whether married or not.
"The minister's consent to the Law School thereby causes discrimination against sexual minorities in their access to legal education," the argument states.
Clayton Ruby, a prominent civil rights lawyer who is helping lead the challenge, said the lawyers are seeking "a declaratory judgment that no law school with this fundamentalist, Christian covenant – which discriminates against gays – is constitutional in Canada."
Mr. Ruby's Toronto-based firm, Ruby Shiller Chan Hasan, and lawyers from Vancouver-based Janes Freedman Kyle Law Corporation, initially sought to sue only the ministry; TWU later asked to join the case on the side of the government, which the lawyers did not oppose.
Supporters of the law school note that TWU triumphed in a similar challenge involving the B.C. College of Teachers. In 2001, the Supreme Court of Canada ruled that "absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected."
But lawyers in this challenge say the two are not comparable: The case is not about what kind of lawyers the proposed law school would produce, but the fact that admission requirements are inherently discriminatory and that an openly gay student at the law school would, Mr. Ruby said, be "treated like a second-class citizen."
Trevor Loke, a Vancouver park board commissioner and the public face of the lawsuit as its petitioner, is a gay Anglican who wants to attend law school in B.C.
"He is unwilling to disavow his sexual identity by pledging to abstain from same-sex intimacy and he does not want to be coerced into practising the type of Christianity practised by the Evangelical Free Church of Canada, which is the church affiliated with TWU," the written argument states. "As a result, Mr. Loke cannot access the additional 60 law school places created by the Minister at TWU."
On Friday, the Law Society of B.C.'s board of directors – known as benchers – voted to reverse an earlier decision and uphold the results of a member referendum that rejected accreditation for TWU law graduates. A day earlier, 74 per cent of the society's members who mailed in ballots voted to direct benchers to reject accreditation for the faith-based law school.
Gerald Chan, another lawyer in the case, notes TWU has challenged the law societies in Ontario and Nova Scotia, which have declined to accredit the school, and a challenge of the Law Society of B.C. could reasonably be expected as well.
"We are challenging the most direct decision maker: the governmental actor that authorizes the school to go ahead," he said. "[Mr. Virk's] decision still remains intact. And we think it was incorrect and unreasonable."
The Ministry of Advanced Education did not reply to a request for comment.
The hearing is set for Dec. 1-5. Trinity Western is aiming to open the law school in the summer of 2016.