Arctic/Northern Women: Situating Law and Justice in Development and Equality

Tuesday, February 25, 2014

Feminist Legal Studies Queen's is hosting Arctic/Northern Women: Situating Law and Justice in Development and Equality: In celebration of Dr. Patricia A. Monture from Feb 28- March 1.

The full schedule is available at FLSQ, here (students pay no registration fees!)

Frequently Asked Questions about Accrediting Trinity Western University's Proposed Law School Program in Ontario

Monday, February 10, 2014

Background

Trinity Western University (‘TWU’) is an evangelical Christian institution in Langley, British Columbia. TWU requires all faculty, staff and students to sign a “Community Covenant” promising to inter alia “abstain from sexual intimacy that violates the sacredness of marriage between a man and a woman.” Faculty, staff and students who violate the Covenant risk disciplinary measures, including expulsion and termination of employment.

On 16 December 2013, the Federation of Law Societies of Canada (Canadian Common
Law Program Approval Committee) issued a report (Report) granting “preliminary
approval” to TWU’s proposed school of law program.

The Report states that the Approval Committee considers its mandate to be confined to considering whether TWU’s proposed program meets the “national requirement” by offering required courses and complying with minimum admission standards.

The Report expressly does not consider other matters, including concerns about the effect of TWU’s “Community Covenant” on access to a legal education and on equality interests.

Also in December 2013, a “Special Advisory Committee on Trinity Western’s Proposed School of Law” (Special Advisory Committee), convened by the Federation, issued a Final Report concluding that “there will be no public interest reason to exclude future graduates of the program from law society bar admission programs.” Specifically, the Special Advisory Committee observed that:

Absent evidence for example, that graduates of the proposed law school would engage in discriminatory conduct or would fail to uphold the law, freedom of religion must be accommodated. No such evidence has been brought to the attention of the Special Advisory Committee, nor is it aware of any.

As the Federation of Law Societies of Canada has indicated, the decision whether to recognize TWU’s proposed law school ultimately rests with each of the provincial and territorial law societies. In Ontario, the Law Society of Upper Canada will be responsible for deciding whether to approve TWU’s proposed law school despite its discriminatory policies.

The Treasurer of the Law Society of Upper Canada recently announced that it is currently reviewing the Federation reports and conducting background work, including considering what process should be followed to reach a decision on this matter. The Treasurer has indicated that he anticipates that Convocation will consider the TWU issue at its April 2014 meeting.

FAQs about TWU

Isn’t TWU a private institution? Doesn’t that mean the Charter doesn’t apply?

The answer to this question has two separate parts:
First, whether or not TWU is private is irrelevant to the primary legal question at hand, which is whether or not the Law Society of Upper Canada (LSUC) should admit graduates of TWU to the bar here in Ontario.  The Charter applies to all provincial/territorial law societies in Canada,[1] including the LSUC and its decision-making on this issue.  What is more, the application of the Charter to TWU has no bearing on whether it is in the public interest, as required by the province’s Law Society Act,[2] to accredit those who have attended an institution that openly discriminates against gays and lesbians through its Community Covenant.

In answering the question of what constitutes the public interest in this case, the LSUC, as an administrative decision-maker, is required[3] to balance Charter values in its decision-making, which would of course includes freedom of religion and the equality rights of  gays and lesbians.  Any decision taken by the LSUC in this matter must, in the final analysis, comply with the Charter.

Second, in a case where the applicability of the Charter were to become an issue (for instance, if an individual gay or lesbian student were to launch a Charter challenge after being expelled or excluded from TWU), it is arguable that TWU could be subject to Charter scrutiny. In order for the Charter to apply, an institution must either be a ‘government entity’ or it must be carrying out a ‘government activity.’[4] The Supreme Court of Canada held, in McKinney v the University of Guelph,[5] that universities, like hospitals,[6] are private rather than government entities within the meaning of the Charter.  However, the Court has since recognized that private entities may nevertheless be subject to Charter review when they are carrying out ‘government activities.’  For example, in Eldridge v British Columbia, the Court held hat hospitals must comply with the Charter’s equality guarantee in delivering publicly funded health care services.[7]  Like in the case of hospitals, direct and indirect government funding is provided to universities in order to further the important governmental objective of promoting access to post-secondary education.
  
Radio Canada[8] has reported that TWU, on at least one occasion, has received 20 million dollars in federal infrastructure funding. TWU faculty also receive taxpayer monies through SSHRC, NSERC and CIHR grants.  Likewise, TWU students are eligible for public monies through interest free student loans.

In 2012, TWU received $465,000 in federal funding.[9] In 2009, the federal government provided $2,614,000 in funding to TWU.[10]  For its part, the BC Government gave TWU $2,614,000 in provincial monies in 2009.[11]

When an individual donates money to TWU, they receive a tax credit for a percentage of that donation.  That tax credit is paid from public coffers.

Furthermore, even private universities such as TWU cannot legally confer degrees without each one of those being specifically approved by the BC Ministry of Higher Education,[12] an indication that TWU is performing ‘government activities’.

What about Human Rights legislation?

It is arguable that the B.C. Human Rights Code[13] applies to TWU. Despite the institution’s claim to the contrary, s. 41(1) of the Code, which authorizes educational and religious organizations to favour the members of the group they represent, does not appear to save the Covenant. The Supreme Court has held that such a Code exemption only applies where a non-profit organization has “as a primary purpose, the promotion of the interests and welfare of an identifiable group of persons characterized by a common [enumerated] ground”[14] and that “the distinction, exclusion or preference [is] justified in an objective  sense by the particular nature of the institution in question.”[15]


TWU fails on both accounts. First, although recognized as a Christian institution affiliated to the Evangelical Free Church of Canada, TWU must “provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian.”[16] Second, it can hardly be said that TWU’s ban on sexual intimacy outside of marriage between a man and a woman is objectively justified by its mission. Many Christian organisations reject the notion that same-sex intimacy is contrary to Christian theology.

Were TWU located in Ontario, our human rights legislation, which prevents discrimination on the basis of sexual orientation, applies to public and private actors.  It will certainly apply to TWU.

TWU does not ban gays and lesbians outright. They can attend TWU; they just cannot have intimate relations with people of the same sex while they go to law school. Why is this a problem?

As highlighted by the Supreme Court of Canada in Vriend v Alberta, the mere fear of discrimination may in and of itself cause serious psychological harm: “Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self‑esteem. […] The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.”[17]

Moreover, in Saskatchewan (Human Rights Commission) v Whatcott,[18] the Court soundly rejected the ‘love the sinner, hate the sin’ approach to discrimination.  Targeted practices, such as intimacy with one’s same-sex spouse, cannot be separated from the protected identity of being gay or lesbian.

The Supreme Court concluded in Whatcott that it is not possible to condemn same sex intimacy “without thereby discriminating against gays and lesbians and affronting their human dignity and personhood.”[19]

Banning gay and lesbian intimacy is banning gays and lesbians.

Don’t you have to show that TWU graduates will discriminate against gays and lesbians in order to prove that accrediting them in Ontario is against the public interest?

It is impossible to prove that TWU graduates would actively discriminate against queer people – a hypothetical based on the future actions of would-be graduates is impossible to prove.  This is the wrong question to ask.  The correct question is whether or not granting accreditation to TWU’s law school is in the public interest of Ontarians. It cannot be in the public interest for the LSUC to condone a law faculty and a law school program that actively discriminates against a group that has been recognized under both provincial human rights law and the Charter as warranting protection from discrimination. The public interest demands that the law reflect societal values and who we want to be as a province and a country. TWU has no right to an imprimatur from the LSUC or the Government of Ontario.

Further, there is something particularly egregious about a law school that practices discrimination – a practice so antithetical to our legal tradition and Charter values.  A law school that promotes discrimination and discriminatory attitudes is like a medical school that denounces the Hippocratic oath:  it is fundamentally repugnant to the values the profession embodies.

Doesn’t the Covenant discriminate against other groups besides gays and lesbians, such as Jewish people, Muslim people, unmarried opposite-sex partners etc?

Yes it does, and those forms of discrimination should also be condemned. Such discrimination is, however, subtly different. For instance, the Community Covenant does not pose the same kind of outright ban on people of non-Christian religions as it does on gays and lesbians. While living as a Jewish or Muslim person at a ‘distinctly Christian university’[20] would, without a doubt, create serious difficulties at many levels, students and faculty who identified this way do not face discipline, expulsion or loss of employment.

The nature of sexual orientation poses a further difficulty. Students could apply and be accepted to TWU, only to “come out” during their studies.  These students would face an increased risk of expulsion by virtue of their sexual orientation.

Those who are advocating for the non-accreditation of TWU graduates in Ontario because of the Community Covenant’s discrimination against GLBTQ people decry all forms of discrimination inherent in TWU’s proposed law program, and would be happy to join with advocacy and community groups in bringing these concerns to the fore at the LSUC hearings. However, given the unique and stark ways in which TWU’s Community Covenant discriminates against gays and lesbians, regardless of marital status, it is crucial to underscore this particular form of discrimination. TWU seeks to impose an unconstitutional definition of marriage onto its students and staff.  The Law Society of Upper Canada should not grant approval to such a law school.





[1] Law Society of Upper Canada v Skapinker, [1984] 1 SCR 357; Andrews v Law Society of British Columbia, [1989] 1 SCR 143; Black v Law Society of Alberta, [1989] 1 SCR 591.
[2] RSO 1990, c L.8, s 4(2).
[3] Doré v Barreau du Québec, 2012 SCC 12.
[4] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at para 44.
[5] McKinney v University of Guelph, [1990 3 SCR 229.
[6] Stoffman v Vancouver General Hospital, [1990 3 SCR 483.
[7] Eldridgesupra note 4 at para 51.
[8] http://www.cbc.ca/news/politics/christian-schools-received-20m-from-infrastructure-fund-1.1329280
[9] http://twu.ca/news/2012/015-govt-of-canada-announces-support.html
[10] http://www.ic.gc.ca/eic/site/696.nsf/eng/00512.html
[11] http://www.ic.gc.ca/eic/site/696.nsf/eng/00512.html
[12] Degree Authorization Act, SBC 2002, c. 24, s. 4.
[13] RSBC 1996, c. 210.
[14] Brossard v Québec (Comm. des droits de la personne), [1988] 2 SCR 279 at para 130. See also Caldwell v. Stuart, [1984] 2 SCR 603.
[15] Ibid. at para 138.
[16] Trinity Western University Act, SBC 1969, c. 44, s. 3(2).
[17] [1998] 1 SCR 493 at para 102.
[18] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at paras 122-124.
[19] Ibid. para 123.
[20] Community Covenant page 2.


Great new op-ed on GLBTQ rights at Sochi by Prof. Brenda Cossman

Friday, February 7, 2014

Prof. Brenda Cossman has some excellent suggestions on how to show solidarity with GLBTQ people during the Sochi games.

Defending Battered Women on Trial by Elizabeth Sheehy: Voices in Response Feb. 18

Thursday, February 6, 2014

On February 18, the Shirley Greenberg Chair for Women and the Legal Profession, Professor Elizabeth Sheehy, presents:

Defending Battered Women on Trial by Elizabeth Sheehy: Voices in Response

Speakers include:

Elizabeth Sheehy
Leighann Burns
Kim Pate
Rosemary Cairns-Way
Rakhi Ruparelia
Angela Cameron
Sarah Morales
Vanessa MacDonnell

The event will take place from 11:30am-1:00pm in FTX 302, University of Ottawa.

Call for Papers: Gendered Dissent, Democracy and the Law

Via the femprof listserv:  

Gendered Dissent, Democracy and the Law:

A workshop on the gendered face of Canada’s crackdown on dissent 

May 12-13, 2014  Osgoode Hall Law School, York University, Toronto, Ontario
 
The Gender & Dissent Working Group of the Dissent, Democracy & the Law Research Network and the Institute for Feminist Legal Studies invite proposals for papers and other interventions to be presented at a workshop that aims to bring scholars and advocates together to consider the gendered dimensions of dissent in Canada and Quebec. 

The Workshop: This two-day workshop will bring a small and diverse group of legal scholars and advocates together in Toronto to theorize, and respond to, the challenges faced by advocates and civil society organizations and individuals working on issues of gender equality in Canada and Quebec.  In many cases, these challenges stem from governmental use of legal and extralegal measures that undermine the capacity of individuals, civil society organizations and institutions to participate in public debate on key policy issues at the local, provincial or federal level. 

Gendered Dissent, Democracy & the Law: Concerns about the increasing constriction of legal and political space for civil society organizations in Canada resonate with global discussions about the restriction of dissent and other efforts to control public dialogue about government policy and action. While the nature of the state-civil society relationship is a site for ongoing debate, the freedom to critique and oppose government decisions and positions is an essential element of ensuring healthy democratic institutions and practices, including the protection of fundamental human rights. 

In Canada, a combination of legal and policy measures have functioned to reduce the legal, financial and political space available to civil society organizations, particularly those whose work and public positions differ from those of the government. A number of specific methods employed by the federal government to restrict dissent have been identified through preliminary research by the Voices-Voix Documentation Project: the threat or revocation of charitable status, defunding, harassment/privacy violation, withholding information, interference with independent institutions, surveillance, and vilification/smearing.  In some cases, rhetorical vilification has carried implicit or even explicit overtones of criminalization.[1] Media reports have pointed to the Voices-Voix research in highlighting the federal government’s attack on dissent.[2] Further theoretical inquiry into the impact of such tactics on democratic institutions and practices, at all levels of government, is an essential component of understanding the relationship between dissent and democracy.

Research undertaken to date indicates that women and gendered-focused civil society organizations attempting to critically discuss government policy decisions are the target of legal and extralegal measures that undermine their capacity to participate in public debate and dissent on important policy issues. In particular, it appears that these practices have impacted those working on gender and socio-economic equality. While the application of these measures to women and groups working on gender issues appears to be part of a broader shift in the relationship between the state and civil society, a close examination of the gender-based features of this shift has the potential to bring specific nuance and insight into the political nature of this shift. The Gendered Dissent, Democracy and the Lawworkshop will be a focused examination aimed at documenting and theorizing gender and dissent in Canada. We also acknowledge that this focus has limitations, particularly with respect to how one draws the boundaries between ‘gender’ issues and other civil society issues. As such, we encourage debate on both the substantive issues articulated here, as well as the very terms of their articulation. 

Call for Submissions: We welcome interventions from scholars, civil society organizations and advocates that aim to:  

a)     Document and describe specific instances and impacts of particular state measures, at any level of government, on public advocacy efforts and/or civil society organizations working on gender issues in order to develop an empirical picture of the problem; 

b)     Document and describe state support for organizations whose work and public positions support current policy goals, and other promotional tactics, towards the construction of representations of public “agreement” or “support” for specific policy decisions and/or constructions of gender, nationhood and race;  

c)      Examine the historical context of the relationship between the state and public advocacy efforts and/or civil society organizations working on gender issues to explore whether the current restriction of dissent is qualitatively different than in the past, and if so, how; 

d)     Critically consider whether and how state practices targeting dissent are distinctive when they are aimed at women or gendered groups; and,  

e)     Draw links between particular instances to identify broader themes with regards to the constriction of legal and political space for advocates and civil society organizations working on gender equality issues and the relationship between dissent and democracy. 

Please submit proposals along with a CV for each author to genderanddissent@gmail.com by February 21, 2014. Proposals should be approximately 250 words in length and should identify whether the intervention will be offered as a scholarly paper or in another format, such as a case study or report or multimedia presentation. Papers (approximately 10 pages in length) will be circulated by the organizers 10-days in advance of the workshop; other interventions will be shared in advance as appropriate.  

We regret that participation in the workshop will be limited to a small group. We anticipate that we will be unable to accept all of the proposals we receive. However, it is our hope that the workshop will launch ongoing inquires into this topic and related issues. We will communicate both the results of the workshop and plans for follow-up events with all applicants and we look forward to future collaborations. 

The organizers aim to have scholarly paper submissions published in a special issue of a selected law journal. Contributions which take other forms will be published or otherwise shared in collaboration with our civil society partners as appropriate. 

Travel Funds: Although we have limited funds, we may be able to provide modest support and assistance with travel and accommodation expenses.  If you require assistance to attend the workshop, please provide the details of the cost for return travel to Toronto and accommodation and indicate other funding sources you have identified/applied to as well as the portion of your expenses you are able to cover. We will notify accepted participants of any funding we can offer as soon as possible.
  


[1] The Voices-Voix civil society coalition was formed in 2010 in response to concerns about the restriction of political space for civil society organizations. The Documentation Project aims to research and record specific cases: http://voices-voix.ca/en/facts. Since September 2013, the Dissent, Democracy & the Law Editorial Board has undertaken to conduct peer-reviewed research that advances the digital publication of the Documentation Project. A description of the Board and its members can be found here: http://voices-voix.ca/en/editorial-board-2013-2014.
[2] For example, see Linda Diebel’s November 2013, “Meanness is a way of life in Ottawa” in the Toronto Star:http://www.thestar.com/news/canada/2013/11/20/meanness_is_a_way_of_life_in_ottaw

Call for Interest: Women’s Legal Landmarks Project (UK)

Monday, February 3, 2014

Via the femprof listserv:

WOMEN’S LEGAL LANDMARKS
CALL FOR EXPRESSIONS OF INTEREST

2019 marks the centenary of women’s formal admission into the legal profession. This was a key legal landmark for women but, of course, it was not first. Feminists have a long history of engaging with law and law reform with the result that women’s legal history is full of landmarks – key events, cases and statutes – shaping and responding to women’s lives and (diverse) experiences.

To commemorate the centenary of women’s admission into the profession, this project aims to bring together interested feminist scholars to engage in the process of identifying and writing about key legal landmarks for women. These might be one or a series of cases, a statute or campaign, an individual, a monument or event. The landmark must be significant for feminists, even if it only had an impact on a group of women. Indeed, it may not have been positive at the time, yet turned out to be a catalyst for change. The landmark may be well-known or less familiar. We are focusing on legal landmarks in the UK and Ireland and hope to cover a broad range of substantive topics. Our goal is the production of a number of outputs celebrating women’s legal history, reaching both a scholarly and a general audience. 

Possible landmarks could include: the Contagious Diseases Acts 1864-6; the statue of Emmeline Pankhurst in Victoria Tower Gardens; The Well of Loneliness trial; Williams & Glyn’s Bank v Boland [1981]; S41 of the Youth Justice and Criminal Evidence Act; the appointment of Lady Hale.



Designed by Rachel Gold.