To say that Trinity Western University’s proposal to establish a law school has provoked sustained and serious controversy will be, for the legal reader, and at least for some outside the legal community,1 a truism.
The controversy turns on TWU’s Community Covenant,2 which prohibits, among other things, same-sex sexual intimacy on the part of its students (and staff).3 Although it emerged earlier, it has come to center on the decisions of provincial law societies about accrediting the law school and recognizing its graduates. Most4 law societies have now taken decisions granting5 or withholding accreditation. The Law Society of Upper Canada,6 the Nova Scotia Barristers’ Society,7 the Law Society of British Columbia,8 and the Law Society of the Northwest Territories9 each decided to withhold accreditation. Since those decisions, the debate about TWU’s law school has been continued in the courts;10 to say that it will eventually engage the Supreme Court is also to state the obvious.11
A wide range of issues, of principle and of law, arise in connection with the law school debate: they have been canvassed in a fairly extensive body of academic writing,12 and by now have also been treated at length in three trial court decisions and three decisions issued by the courts of appeal in Nova Scotia, Ontario, and British Columbia.13
I want to focus here on one issue running through the debate. The “gay quota” or “queer quota” argument for denying accreditation to TWU was named, and I think aired for the first time, in an op-ed written by Clayton Ruby and Gerald Chan in the National Post.14 It has gone on to be discussed in several academic contributions to the controversy about TWU’s law school and in some of the decisions in Ontario, British Columbia, and Nova Scotia15 and it is sometimes implicated in arguments advanced by proponents and opponents of the law school that do not refer to it directly.16
The crux of the gay quota argument is that TWU’s Covenant will deter all or almost all LGBT students from seeking admission to its law school.17 The argument goes on to infer some adverse impact on prospective LGBT law students if the law school is accredited while the Covenant is in effect.
In this comment, I suggest that four distinct impacts can be ascribed to the gay quota. Failing to distinguish them can lead to confusion,18 which it is is my aim here to dispel. Getting the distinctions clear makes it possible to evaluate with more precision some of the arguments that have been advanced for and against accrediting TWU’s law school. It’s in order to emphasize just what does and does not follow from this. Claims about a gay quota are usually subsidiary considerations in larger arguments that build in redundancies.19 And so my own argument, even if it succeeds, doesn’t dispose of those larger arguments.
I. THE GAY QUOTA’S IMPACTS
Concerns about a gay quota resolve into four different claims about its impact:20 (1) accrediting TWU’s law school, with its Covenant, will reduce the number of places available for LGBT students overall in Canadian law schools; (2) accrediting TWU’s law school, with its Covenant, will reduce the overall chance LGBT students have to be admitted to Canadian law schools;21 (3) accrediting TWU’s law school will give LGBT students a lower chance overall than non-LGBT students to be admitted into Canadian law schools; or (4) accrediting TWU’s law school will tend to make the legal profession, in a particular jurisdiction or nationally, less diverse because of impacts (1), (2), or (3).22
II. IMPACT (1) AND IMPACT (2)
In my view, claims that accrediting TWU will lead to impact (1) or impact (2) do not withstand passing scrutiny.
Accrediting the law school with the Covenant would lead to impact (1) only if there were just two possible outcomes from the TWU dispute: either (a) TWU opens its law school with the Covenant in place, or (b) it opens it without the Covenant.23 On this assumption, and the assumption that withholding accreditation would eventually lead to the latter outcome, accrediting with the Covenant does reduce the number of spaces open to LGBT students in Canadian law schools overall by the size of the class at TWU (about 60).24 But there are two other options available to TWU: (c) open the law school with its Covenant in place, although this may lead to its graduates being unable to obtain recognition in the ordinary way in jurisdictions where law societies have declined to accredit it; or (d) abandon the law school project entirely, because it is not prepared to countenance either relaxing the Covenant or proceeding when its graduates will be unable to obtain recognition in the ordinary way from some law societies.25 On options (c) or (d), the total number of places available to LGBT students is not affected one way or the other. So unless there are grounds to believe that option (b) is much more likely than options (c) and (d), suggesting that accrediting TWU’s law school will affect the total number of places for LGBT students in Canadian law schools is, at best, speculative.
Accrediting TWU’s law school with its Covenant in place is unlikely to impact LGBT students’ chances of admission to law school overall for just the same reason. If the total number of places available to LGBT students isn’t affected by a decision to accredit the law school, and the overall number of applicants to Canadian law schools doesn’t change, then neither does the chance that any particular LGBT student will be admitted to some Canadian law school.26
III. IMPACT (3)
This brings us to impact (3): accrediting TWU’s law school would lead to LGBT students having less chances than non-LGBT students to be admitted to a Canadian law school. To some readers, it may be intuitively obvious that this claim is true; it may also be obvious why it is true. In the interests of clarity—and because the second point wasn’t immediately obvious to me—I’ll try to show formally what it means.
Consider this simplified illustration. Suppose that there is only one, public, law school with 50 places. Suppose also that there are 100 potential law students applying to the law school. Among these, 20 are LGBT and 80 are not.27 Suppose finally that the students have identical qualifications, so that the distribution of places in law school among them is random. LGBT and non-LGBT students have an identical chance to be admitted to the school: 0.5.
Now suppose that a second, private, law school is opened, and that it adopts a covenant like TWU’s. Ten places are available at the new law school, but they are only open to non-LGBT students. In effect, non-LGBT students now have two opportunities to be admitted to law school. Their chance to get into the public law school is 0.56.28 Their chance of being admitted to the new law school is not less than 0.20.29 The probability that they will be admitted to at least one law school is not less than 0.65.30 The chance that an LGBT student will be admitted to the public law school is 0.56. Non-LGBT students have a better chance to be admitted to law school than LGBT students.
IV. IMPACT (4)
Impact (4) could be a downstream effect of impact (3). If non-LGBT students have a standing advantage over LGBT students in the competition for places in law school then, over time, this may affect the composition of the legal profession, either nationally or in a jurisdiction where TWU’s law school is accredited.31 Impact (4) is a downstream impact: there is a direct connection between accreditation and fairness between LGBT and non-LGBT students, but other factors will affect whether accreditation changes the composition of the profession. Access to legal education is not identical to access to the legal profession.32 So accepting impact (3) doesn’t require accepting impact (4), and rejecting impact (4) wouldn’t require rejecting impact (3). In other words, impact (3) can be a considered as a harm independent from impact (4) and this means that impact (3) could found an argument against accrediting TWU although it does not lead to impact (4).
What is at stake, then, is fairness between LGBT students and non-LGBT students in competition for a limited number of places in law school, and the effect that unfairness may have on access to the legal profession.
To be salient, responses to the gay quota argument (excluding those purporting to show that LGBT students will enroll at TWU, which I do not consider merit serious attention) need to engage with at least one of these four claimed impacts. To the best of my knowledge, no response squarely faces impact (3) (fairness).33 They deal only with impacts (1), (2), and (4).34 This is a defect in the responses. On the other hand, I’ve suggested that opponents of accreditation sometimes fail to distinguish the different claims involved in the gay quota argument.35
The point, obviously, is not to keep score. The important question is whether the fairness argument predicated on impact (3) and forecasts about its impact on access to the legal profession are persuasive or plausible.
As the discussion above has foreshadowed, quantifying impact (3) depends on facts about the number of applicants to law schools,36 and the number of places available in law schools other than TWU’s. It also depends on assumptions about the behaviour of applicants to law schools. Among these, only one is usually spelled out: LGBT students are very unlikely to apply to TWU. This is, I think, true, as far as it goes. But the extent of the impact also depends on the behaviour of other students.37 And whether impact (3) will lead to impact (4) depends on the magnitude of the unfairness between LGBT and non-LGBT students: the bigger the advantage non-LGBT students have, the more likely it is that the composition of the legal profession will be affected, and the bigger the effect will be.
I think the persuasiveness of the gay quota argument may turn on estimating its impact.38 If it does, then I think it follows from the considerations outlined in this comment that the force of the argument remains an open question.
* BA (University of Toronto), JD Candidate (University of Saskatchewan). Any errors are my own.
1 The proposal and the ensuing debate about accreditation have been the subject of public as well as professional debate. See e.g. Jonathan Kay, “The case for Trinity Western University’s Christian law school”, Editorial, National Post (23 January 2013), online: <http://news.nationalpost.com/full-comment/jonathan-kay-the-case-for-trinity-western-universitys-christian-law-school>; Don Hutchinson, “Fair play for Trinity Western University”, Editorial, National Post (23 January 2013), online: <http://news.nationalpost.com/full-comment/don-hutchinson-fair-play-for-trinity-western-university>; Jenna McGill et al, “Counterpoint: Why Trinity Western University should not have a law school”, Editorial, National Post (24 January 2013), online: <http://news.nationalpost.com/full-comment/counterpoint-why-trinity-western-university-should-not-have-a-law-school>; Jonathan Kay, “Clayton Ruby’s narrow-minded crusade against TWU’s Christian law school”, Editorial, National Post (26 July 2013), online: <http://news.nationalpost.com/full-comment/jonathan-kay-clayton-rubys-narrow-minded-crusade>; Clayton Ruby & Gerald Chan, “A law school at Trinity Western University will impose a queer quota”, Editorial, National Post (29 July 2013), online: <http://news.nationalpost.com/full-comment/clayton-ruby-and-gerald-chan-a-law-school-at-trinity-western-university-will-impose-a-queer-quota>.
2 Trinity Western University, “Community Covenant Agreement” (17 August 2009), online: <https://www8.twu.ca/governance/presidents-office/twu-community-covenant-agreement.pdf>.
3 Ibid at 3.
4 The Law Societies of Manitoba, Newfoundland and Labrador, and Nunavut have deferred decisions about TWU (Law Society of Manitoba, “Trinity Western University Decision”, online: <http://www.lawsociety.mb.ca/education/trinity-western-university-decision>; Law Society of Newfoundland and Labrador, News Release, “Law Society Response—Trinity Western University’s Proposed Law School” (11 July 2014), online: <http://www.lawsociety.nf.ca/law-society-response-trinity-western-universitys-proposed-law-school/>; Mark Mossey, “Report as President of the Law Society of Nunavut” (Delivered to the 2014-2015 AGM of the Law Society of Nunavut, 30 May 2015), online: <http://lawsociety.nu.ca/wp-content/uploads/2015/09/Appendix-A-LSN-President-Message-May-2015.pdf>).
5 Trinity Western University, “Proposed School of Law: Timeline”, online: http://www.twu.ca/proposed-school-law/timeline>.
6 Law Society of Upper Canada, “Trinity Western University (TWU) Accreditation”, online: <http://www.lsuc.on.ca/twu/>.
7 More precisely, the NSBS approved TWU on the condition that it amend the Community Covenant or exempt law students from its application (Nova Scotia Barristers’ Society, “Council Votes for Option C in Trinity Western University Law School Decision”, online: <http://nsbs.org/news/2014/04/council-votes-option-c-trinity-western-university-law-school-decision>). The Nova Scotia Supreme Court granted TWU’s application for judicial review (Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25, 381 DLR (4th) 296 [TWU NSSC]). The NSBS’s appeal was dismissed (The Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59, 401 DLR (4th) 56 [TWU NSCA]) and it has indicated it will not pursue a further appeal (Nova Scotia Barristers’ Society, “Update on the Trinity Western University Matter”, online: <http://nsbs.org/news/2016/08/update-trinity-western-university-matter>).
8 Law Society of British Columbia, “Trinity Western University: Proposed Law School” (updated 8 November 2016) [“TWU: Proposed Law School”], online: <https://www.lawsociety.bc.ca/page.cfm?cid=3912>. After this comment was substantially completed, the British Columbia Court of Appeal released its reasons in Trinity Western University v The Law Society of British Columbia (2016 BCCA 423 [TWU BCCA], aff’g 2015 BCSC 2326, 392 DLR (4th) 722 [TWU BCSC]). The Court of Appeal dismissed the Law Society’s appeal from the decision in TWU BCSC, which quashed the Benchers’ decision to refuse to accredit TWU’s law school (TWU BCSC, ibid at para 156). The Law Society has indicated that it will seek leave to appeal to the Supreme Court of Canada (“TWU: Proposed Law School”, ibid).
9 Law Society of the Northwest Territories, “President’s Statement Regarding Vote on TWU Law School”, online: <http://www.lawsociety.nt.ca/society/twu/>.
10 TWU BCSC, supra note 8; Trinity Western University v The Law Society of Upper Canada, 2015 ONSC 4250, 387 DLR (4th) 149 [TWU ONSC], aff’d 2016 ONCA 518, 398 DLR (4th) 489 [TWU ONCA]; TWU NSSC, supra note 7; TWU NSCA, supra note 7.
11 TWU has indicated that it will appeal the Ontario Court of Appeal’s decision to the Supreme Court (Trinity Western University, “TWU to Go Back to Court After Negative Ruling from Ontario Court of Appeal” (30 June 2016), online: <http://www.twu.ca/news-events/news/twu-go-back-court-after-negative-ruling-ontario-court-appeal>).
12 See e.g. Thomas MJ Bateman, “Trinity Western University’s Law School and the Associational Dimension of Religious Freedom: Toward Comprehensive Liberalism” (2015) 66 UNBLJ 78; Sheila Tucker & Emily Snow, “Public Interest and the Trinity Western Law School Trilogy” (2016) 74:4 Advocate 539; Dianne Pothier, “An Argument Against Accreditation of Trinity Western University’s Proposed Law School” (2014) 23:1 Const Forum Const 1; Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program” (2013) 25:1 CJWL 148; Iain T Benson, “Law Deans, Legal Coercion and the Freedoms of Association and Religion in Canada” (2013) 71:5 Advocate 671; Dwight Newman, “On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada” (2013) 22:3 Const Forum Const 1; Elaine Craig, “TWU Law: A Reply to Proponents of Approval” (2014) 37:2 Dal LJ 621 [Craig, “Reply”]; Robert E Charney, “Should the Law Society of Upper Canada Give Its Blessing to Trinity Western University Law School?” (2015) 34:2 NJCL 173; Angela Cameron, Angela Chaisson & Jena McGill, “The Law Society of Upper Canada Must Not Accredit Trinity Western University’s Law School” (2015) University of Ottawa Faculty of Law Working Paper No 2015-11; Mark A Witten, “Tracking Secularism: Freedom of Religion, Education, and the Trinity Western University Law School Dispute” (2016) 79:2 Sask L Rev 215. By way of full disclosure, I was involved in the publication of Mark Witten’s article.
13 The emphases in the decisions shift depending on the statutory contexts in which accreditation decisions were made, and the circumstances of those decisions (see Tucker & Snow, ibid at 246-49). The decisions in TWU ONSC, TWU NSSC, and TWU BCCA are most relevant to my—narrow—purpose. The decision in TWU BCSC turned on procedural fairness (supra note 8 at paras 109-125). The only issue addressed in TWU NSCA was the scope of the NSBS’s statutory authority (supra note 7 at para 4).
14 Supra note 1.
15 Witten, supra note 12 at 254-57; Cameron, Chaisson & McGill, supra note 12 at 14, 28-29, 40, 44; Charney, supra note 12; TWU ONSC, supra note 10 at paras 102-25; TWU BCCA, supra note 8 at paras 171-80; TWU NSSC, supra note 7 at paras 240-47.
16 Newman, supra note 12 at 6 (considering the impact of the Covenant on LGBT students’ opportunity interest); Craig, “Reply”, supra note 12 (“meaningful access to a legal education in Canada should not differ depending on a student’s sexual orientation” at 633).
17 I take it to be self-evident that this is true (see TWU NSSC, supra note 7 at paras 100-102 (summarizing evidence given on this point by Dr. Mary Bryson, a professor of sexuality and gender studies)).
18 This confusion is not present in Clayton Ruby and Gerald Chan’s editorial.
19 In Cameron, Chaisson & McGill, the gay quota is a harm that engages the Charter value of equality (supra note 12 at 14) in the context of balancing under Doré v Barreau du Québec (2012 SCC 12,  1 SCR 395); part of the discriminatory impact leading to a violation of s. 15 of the Charter (Cameron, Chaisson & McGill, ibid at 29); and a deleterious effect bearing on reconciliation of competing rights (ibid at 40) in the framework developed in Dagenais v Canadian Broadcasting Corp. ( 3 SCR 835, 120 DLR (4th) 12), R v Mentuck (2001 SCC 76,  3 SCR 442), and R v NS (2012 SCC 72,  3 SCR 726). Witten, in assessing the TWU ONSC decision, disputes that the gay quota constitutes a public harm that should have been considered by the LSUC in deciding whether to accredit TWU’s law school (supra note 12 at 254-256). Charney founds the public interest that LSUC advanced by withholding accreditation on the gay quota argument (supra note 12 at 193-94), and reproves the Nova Scotia Supreme Court for applying a kind of de minimis reasoning to it (ibid at 206).
20 These four claims are sometimes presented, without being distinguished, in the same place. See e.g. Cameron, Chaisson & McGill, supra note 12 (“[c]reating a law school that expressly bars an equality-seeking group from attending would reduce the number of Canadian law school spots a gay, lesbian or bisexual applicant could access” at 14); ibid (“[t]he result is that members of a marginalized group will be less likely than the general population to be able to pursue a legal education in Canada” at 29); ibid (“approval of the Covenant would have genuinely harmful consequences for gay, lesbian and bisexual individuals including reducing access to legal education” at 40).
21 Impact (1) and impact (2) are related, but not identical. Impact (2) depends, not just on the overall number of places available for LGBT students in Canadian law schools, but also on the total number of students competing for those places. The number of students competing for law school places is also significant to the assessment of claims about impact (1), (2), and (3). For further discussion of this point see infra notes 30-32 and the accompanying text.
22 Impact (4) is conceptually distinct from the other impacts, but causally related to them. See the text accompanying notes 31-32.
23 Craig seems to make this assumption (“Reply”, supra note 12 at 633). Likewise Cameron, Chaisson & McGill (supra note 12 at 29). See also TWU ONSC, supra note 10 (“being eliminated from TWU as a place to attend law school means, for many persons, that their likelihood of gaining acceptance to any law school is decreased” at para 67 [emphasis added]).
24 TWU NSSC, supra note 7 at para 246.
25 TWU has suggested that it will not open its law school if it is not accredited by LSUC (TWU ONSC, supra note 10 at para 84). I do not take issue here with the credibility of this claim or speculate about TWU’s motives in making it. Since, as the British Columbia Court of Appeal points out, TWU’s authorization to confer law degrees under the Degree Authorization Act (SBC 2002, c 24) was revoked by the Minister of Advanced Education because provincial law societies had decided not to accredit (TWU BCCA, supra note 8 at para 31), it is possible that TWU will not be permitted to operate a law school unless it is approved by the LSUC or the Law Society of British Columbia (ibid at para 168).
26 In fact, if the total number of applicants to Canadian law schools including TWU doesn’t change, then the chance that an LGBT student will be admitted to a Canadian law school improves, because they will not be competing for places in other law schools with those students who ultimately enroll at TWU. But this impact will be marginal, because of the small number of places at TWU relative to the number of places in other law schools, and relative to the total number of applicants to all Canadian law schools. See infra note 30.
27 These figures do not attempt to reflect the actual proportions of LGBT and non-LGBT students in the population of applicants to law school, or the proportion between the number of students applying to law school and the number of places in law schools. These proportions are irrelevant for the purpose of this illustration.
28 It has slightly improved because, on the assumption that all of the places in the new law school will be filled, they are competing only with the 90 students (20 LGBT and 70 non-LGBT) who will not enroll at the new law school. Because both non-LGBT and LGBT students get the benefit of this effect, it does not counterbalance the benefit non-LGBT students get from the opportunity to apply to the new law school.
29 On the assumption that all of the places at the public law school will be filled, at least 30 of them will be filled by non-LGBT students—so a maximum of 50 non-LGBT students are competing for places at the new school.
30 Let P(in) be the probability that they will be admitted to at least one law school. Let P(out) be the probability that they will not be admitted to either law school. Then P(in) = 1 - P(out). Let P(pub) be the probability that they will not be admitted to the public law school and P(new) be the probability that they not will be admitted to the new law school. Then, since P(pub) and P(new) are independent events, P(out) = P(pub) * P(new) = 0.44*0.80 = 0.35. So P(in) = 1 - 0.35 = 0.65.
31 See TWU NSSC, supra note 7 at paras 246-47 (characterizing this possible impact as “a stretch” at para 247). See also TWU ONSC, supra note 10 (“the actions of the respondent in this case were a direct effort to prevent and combat discrimination, and its ultimate effect on the composition of the legal profession in Ontario” at para 132 [emphasis added]).
32 See Witten, supra note 12 at 255 (distinguishing between access to legal education and access to the legal profession and noting the effect of competition for articling positions). Cf Charney, supra note 12 (“the LSUC’s reasons for refusing to accredit TWU’s law school were based primarily on the impact of the discriminatory admission policy on potential applicants to the law school” at 194 [emphasis added]).
33 Though fairness is often among the arguments developed by opponents of accreditation (see Cameron, Chaisson & McGill, supra note 12). It is a primary consideration for Charney (supra note 12) and for the court in TWU ONSC.
34 I take Witten to be responding to claims (1) and (2): “[I]f sixty aspiring Christian law students elected to go to TWU, instead of public law schools, this would presumably result in more open positions at public schools” (supra note 12 at 256). And to claim (4): “In practice, however, admission to law school does not guarantee admission to the bar” (ibid at 255). In TWU NSSC, the Court is focused on impact (4): “It is a stretch to speculate that requiring [graduates from TWU’s law school] to make special application for admission on as yet unknown criteria will help to improve the proportion of LGBT lawyers” (supra note 7 at para 247). The British Columbia Court of Appeal’s analysis of the impact of accrediting TWU’s law school on equality of access is mostly geared toward impacts (1) and (2) (supra note 8 at paras 171-80).
35 For example, TWU NSSC addresses impact (4) (ibid at para 247), but Charney arguably conflates impact (3) and impact (4) in his criticism of the decision, or fails to notice that the relationship between them is mediated by other factors (supra note 12 at 205).
36 See TWU NSSC, ibid at paras 79-80 (admissions statistics).
37 Suppose, as I think is likely, that there is a non-trivial subset of non-LGBT students who will not apply to TWU because they consider the values its Covenant embodies repugnant. Then this group, however large, will be in the same position as the LGBT students. On the other hand, the ex hypothesi smaller group (perhaps it would consist only of Evangelicals?) that will apply to both TWU and public law schools will enjoy an even larger advantage. Does it matter how small the group that enjoys an advantage over LGBT students is, or what its composition is? The simplified scenario above also presumes that all non-LGBT students apply to all law schools, but this assumption apparently does not hold (see TWU NSSC, ibid at para 80).
38 Charney’s view is that the degree of the impact on fairness is irrelevant (supra note 12 at 205). The Court in TWU ONSC criticizes TWU NSSC along the same lines (TWU ONSC, supra note 10 at paras 133-34). I am uncertain about this (cf TWU BCCA, supra note 8 (emphasizing that the impact of accrediting TWU’s law school on equality of access “must be considered in context and concretely” at para 173)). But even if it is true when impact (3) is considered as an independent harm, it does not hold when impact (3) is connected to impact (4). If the extent to which accrediting TWU creates unfairness between LGBT and non-LGBT students is very small, then something like the de minimis argument in TWU NSSC becomes a plausible response to claims about impact (4). And this may be important, because a law society’s mandate could encompass impact (4), but not impact (3). The NSBS has a narrower statutory mandate (Tucker & Snow, supra note 12 at 546-48), and this may account for the Nova Scotia Supreme Court’s focus on impact (4).