By Geoffrey Trotter*
This article was originally published in the Christian Legal Journal, Volume 28, Issue 2.
In my previous article written immediately after the release of the Supreme Court of Canada’s decision in the Trinity Western University law school case (“TWU 2018”), I identified a theme in the Court’s judgment which could bode badly for the future of freedom of religion and conscience in Canada: TWU’s law school could be rejected solely on the basis that its code of conduct which would cause some persons to self-exclude would “harm LGBTQ individuals” and “violat[e their] essential human dignity and freedom.” I noted that this line of reasoning could be invoked by the state as a justification to “reach in and remove such barriers wherever it finds them: religious grade schools, para-church organizations, even churches” and potentially “also within families.”
Two recent trends in the jurisprudence are pushing the boundaries of harm in directions which should be deeply worrisome to any minority community that adheres to a moral and/or spiritual authority higher than the state which they believe instructs a fundamentally different view of human personhood, and commands a fundamentally different guide for moral conduct – one which calls for self-restraint of one’s freedom. What we are seeing now is that certain ‘progressive’ interpretations of the Charter and Human Rights Codes – grounded in worldviews which privilege ‘freedom’ and/or ‘autonomy’ – are exerting a monopolistic power by labeling alternative (minority) views as ‘harmful’ and/or ‘hateful.’ These worldviews have become so dominant that they are now invoking the power of the state to not only prohibit conduct consistent with those views, but even to silence the expression of those minority views themselves – both publicly (such as through interpretation of hate speech laws and funding denials) and privately (including silencing parents’ right to share their own health-care, moral, or religious views with their children).
These trends reveal that ‘harm’ – like ‘Charter Values’– is a flexible concept which is very much in the eye of the beholder. What a religious or moral minority believes to be fundamentally true as a matter of sincere conscientious or religious belief may be deemed false and/or harmful by a judge or tribunal member as well as the experts upon whose evidence such decision makers rely to makes findings of fact. The decisionmaker’s worldview – or at least the prevailing worldview of the legal culture in which they operate – frames what the decisionmaker identifies as the problem in need of a solution, as the harm in need of a remedy. It can even frame the evidence they find to be required to justify their orders.
A case study
One area where these themes are playing out is in the area of gender identity, gender dysphoria, and gender transitioning. One’s anthropology (or ‘worldview’) largely determines which responses to gender dysphoria are seen to be valid health-seeking medical treatment, and which are seen to be harmful.
Many minority communities, and indeed many Canadians (perhaps a numerical majority), hold to an anthropology which holds that biological sex is normative for gender identity (the “nature anthropology”). Where a person’s experience of gender identity differs from their biological sex (a DSM-V diagnosable medical condition known as “gender dysphoria”), this anthropology understands health to be achieved by treatment which reduces or eliminates the dysphoria by enabling individuals to ‘make peace’ with their own bodies. The nature anthropology views surgical or hormonal efforts which alter the body (to conform to the gender identity) as harmful, and not to constitute valid health care.
By contrast, to those who hold to an anthropology which sees gender identity as the starting point, and biological sex as an accident of nature, the problem is seen to be in the body, not the mind (the “identity anthropology”). Accordingly, a legitimate ‘cure’ for gender dysphoria is to change the body to match the gender identity, including by hormonal or surgical means. According to this anthropology, since gender identity is the starting point, treatments which seek to change the mind to be in alignment with the body are ‘harmful’. Subsequent to TWU 2018, this view has found expression in both legislation and jurisprudence:
1. Conversion therapy bans: Various provinces have passed ‘conversion therapy bans’. These bans generally prohibit regulated health professionals from engaging in efforts to “change” a minor’s sexual orientation or gender identity, and de-fund such efforts for adults. Nova Scotia’s law goes further, commanding that “[n]o person in a position of trust or authority towards a young person under the age of nineteen years shall make any change effort with respect to the young person.” On the face of this section, the wording appears to capture parents in relationship with their own children. There is no express exception, for example, for simple conversations between parents and children about the parents’ moral, conscientious, or religious beliefs, or for religious instruction.
2. Expanding the definition of “family violence”: In the recent case of A.B. v. C.D. and E.F, the British Columbia Supreme Court denied the father’s injunction application to prevent his 14-year-old child “A.B.” – born female, but identifying as male – from receiving hormonal treatment for gender dysphoria to transition from female to male, and declared that it was in the child’s best interest to be “acknowledged and referred to as male”. The court further declared: “Attempting to persuade A.B. to abandon treatment for gender dysphoria; addressing A.B. by his birth name; referring to A.B. as a girl or with female pronouns whether to him directly or to third parties; shall be considered to be family violence under s. 38 of the Family Law Act.” The court subsequently issued a protection order against the father expressly prohibiting him from doing these things.
3. Hate speech: In Oger v. Whatcott, the British Columbia Human Rights Tribunal awarded Morgane Oger $35,000 as compensation for injury to dignity, feelings, and self-respect, for a flyer published by William Whatcott during the 2017 BC provincial election in which Whatcott expressed – if in offensive and at times inflammatory ways – the view that “gender is God given and immutable” and that while surgery or hormonal treatment can alter appearance, “transgenderism is an impossibility”. The flyer stated that “forgiveness” was available through “Christ” for those who repent of such “sins”. In holding that the flyer constituted hate speech prohibited by the BC Human Rights Code, the tribunal interpreted the flyer as ‘denying the very existence of transgender people’ (e.g. paras. 61, 119, 120, 155), stated that the views in the flyer are not a matter of “legitimate public interest” such that they are not protected political expression (paras. 120, 136; 171), and while not finding the Bible passages quoted to be hate speech per se (para. 151), held that they are deployed in a way which contributed to the hateful message as a whole (paras. 155; 162). The tribunal also ordered Mr. Whatcott to pay the complainant $20,000 as “costs for improper conduct” for, among other things, referring to the complainant as a male during the hearing – the very topic of the flyer at issue in the proceeding (para. 323).
These three examples illustrate that the ‘identity anthropology’ is not only dominant, but also imperialistic against the ‘nature anthropology’ which understands sex as being given by nature or nature’s God. In each of these instances, decisionmakers have prohibited the nature anthropology from being acted upon or expressed, both in public and in private, even by a parent towards their own child.
A clash of worldviews: could the Christian message itself be declared harmful?
The examples listed above are cause for deep and genuine concern on their own. For the Christian community in particular, however, there is a concern even more fundamental than important disagreements over sex and gender identity and the right to express and live according to those views. The more fundamental concern is that the “harm” reasoning employed is now clearly moving towards prohibiting the public or private expression of the Christian doctrines of sin and grace, which are inseparable from one another, and which encapsulate the gospel itself.
I had a firsthand experience with this during law school. In one of my seminar classes, my term paper and related class presentation included reflections from an expressly Christian perspective on the collaborative family law process. In order to make that aspect of my presentation intelligible to my classmates, I explained how Christians consider family breakdown to be the result of sin of one or both marriage partners, but that human dignity is undiminished and forgiveness from sin is available to all. During the Q&A following my presentation, one of my classmates asked/challenged, ‘isn’t that judgmental?’ I was surprised by the question – I had just shared both sides of the coin, that there is forgiveness for every sin, not condemnation. But clearly my classmate had heard only one aspect of the package. My take-away was this: those who deny the availability of forgiveness have no alternative but to deny the idea of sin, for otherwise they would be condemning themselves.
The identity anthropology worldview maintains that someone’s asserted gender identity either cannot change, or should not be changed, because it is true and good, or at least a matter of personal autonomy which should not be questioned. A message which states that sex is immutable and that identity and behavior should be brought into alignment with sex is “family violence” in the family context which justifies silencing parents (A.B. v. C.D. and E.F.), is harmful in the health care context and thus prohibited (the Nova Scotia law) and in the public square context (particularly when framed in terms of sin and forgiveness) is labelled ‘hateful’ and ‘not a matter of legitimate public debate’ (Whatcott). The tribunal in Whatcott does not explain why the topic of the flyer is not a point of legitimate debate other than to say that it is hate speech, but this is a tautology. There is, in fact, a vigorous debate in British Columbia about the new sexual orientation and gender identity (“SOGI”) curriculum in public schools. What appears to be underneath the Whatcott decision is simply the tribunal’s anthropological belief which makes it self-evident (to the tribunal) that any perspective critical of transgender transitioning is no longer a matter which can be publicly debated.
Part of the challenge presented by transgender issues is that people use the same words to mean different things. Someone holding to an identity anthropology uses gender pronouns in a fundamentally different way than someone holding to a nature anthropology. One question posed in both Oger v. Whatcott and A.B. v. C.D. and E.F. is whether it is appropriate for the legal system to prohibit people from expressing their sincerely held beliefs using the language consistent with their own worldview, just because those of a different worldview will interpret those words differently. When the father in A.B. v. C.D. and E.F. refers to the child as a ‘daughter’ he means that the child was born biologically female and it is the father’s conscientious belief that this will always be normative of the child’s true gender identity; the father is not denying that the child has embraced a transgender identity. Both can be true. The law should therefore allow sufficient space for both worldviews on the topic to co-exist.
Indeed, we have a rich jurisprudence about the deep harms imposed on persons whom the law compels to speak or act against their sincere, conscientiously held perceptions of what is true. Doing so forces the person to pretend to believe something they do not, or to face punishment. Those insights should be applied in favour of minority communities today, just as they were applied in favour of the LGBTQ+ community in the past. Our courts would not countenance a legal ruling prohibiting someone of same-sex sexual orientation from acting in accordance with that asserted identity. Our courts should be no more willing to countenance a legal ruling prohibiting someone of a particular religion or conscientious view to speak and parent in accordance with that identity. The Supreme Court recently stated in Saguenay that “…religious belief is more than an opinion. … Religion is an integral part of each person’s identity.” The Court also indicated that “when the state treats his or her religious practices or beliefs as less important or less true than the practices of others … it is not simply rejecting the individual’s views and values, it is denying her or his equal worth.” But the examples above suggest that religious and conscientious identity is receiving less legal protection than gender identity.
The line drawn by the Supreme Court of Canada in Whatcott 2013 is this: It is not the substantive ideas that constitute hate speech, but their mode of expression. This is (or should be) what the Human Rights Tribunal in Oger v. Whatcott is getting at when it discusses whether the text of the flyers is a matter of legitimate public debate. But the decision shows one of the reasons why hate speech prohibitions are so dangerous in what is supposed to be a liberal democracy: it is almost impossible for the worldview of the tribunal members not to impact whether they characterize expression as a good faith contribution to a matter of public interest, or as beyond the pale and hateful. While the hate speech standard under Whatcott 2013 is supposed to be objective, it is very difficult for a decisionmaker’s analysis not to be influenced by their own identity anthropology worldview (essentially translating the inquiry into something like ‘if I were to say something like that, could it be for non-hateful reasons?’ or ‘if I were to hear something like that, could I interpret it as other than a hateful message?’). By contrast, someone who adheres to the nature anthropology can at least understand how a message such as Mr. Whatcott’s can be held and expressed in good faith (although they would almost certainly cringe at the way it is expressed). This is why censorship is such a dangerous legal tool, even in the hands of the best-intentioned government appointee. It is likely that every tribunal member – whatever their worldview – honestly believes that they represent the reasonable person on the objective test from Whatcott 2013.
If this line of legal reasoning is permitted to persist, other core Christian doctrines are liable to be legally challenged. For example:
1. The Christian belief that the ‘wages of sin is [spiritual] death’ – i.e. a future destiny in hell. If it is “family violence” for a father to express his belief to his child that hormone transition therapy is inappropriate for the child due to the substantial physical and psychological side-effects (both transitory and permanent) of such treatment, it is not hard to imagine in the context of family breakdown a non-religious spouse seeking a court order prohibiting the other parent from teaching their mutual child about sin and hell, particularly if supported by an expert opinion that such teaching may cause or is causing anxiety in the child. From the perspective of an anthropology which rejects the doctrine of sin and grace, speaking about these beliefs may simply be harmless superstition in most cases, but in some cases may cause ‘harm’ to the child. The Christian perspective is that sin is the harm, and grace (through Christ’s death on the cross) is the cure, but to those who reject the latter, the harm would be seen to be simply sharing the family’s religious beliefs if the child finds these distressing to hear. As in my law school experience, ‘those who deny the availability of forgiveness have no alternative but to deny the idea of sin.’
2. The Christian understanding of Satan as a personal, evil force who is active in the world and influencing all people away from truth and flourishing, could be labelled ‘hateful’, particularly if brought to bear on certain political or legal developments or movements. The anthropology of most judges and tribunal members – that there is no such spiritual reality – leads to seeing any invocation of these concepts (e.g. Ephesians 6:12) as tantamount to labelling persons as ‘doing the devil’s work’, or worse, which could be labelled as hate speech.
What we see, then, is that the ultimate challenge from the trends in jurisprudence identified above is not just a threat to one’s ‘right’ to express a religious understanding of sexuality and gender identity, but a threat to the church’s ‘right’ to actually preach the gospel. This arises from the underlying worldview: the Christian sees sin as the problem and grace as the solution; the legal trends identified above have gone so far as to start identifying the problem as the mere statement that there is sin or that it is a problem. In short, this worldview appears to be identifying the gospel as the problem in need of a solution – by being silenced.
A double standard?
Indeed, there has been a trend in recent jurisprudence towards ‘protecting’ people from encountering views different from their own, at least provided that those views are consistent with the legal establishment’s now-dominant view. One example is the recent Ontario Court of Appeal decision in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario where the court upheld the College’s forced-referral requirement in part on the basis that “[o]ne can reasonably anticipate that the loss of the personal support of a trusted physician would leave the patient with feelings of rejection, shame and stigma” and that “the physician’s views could reasonably be expected to have a … stigmatizing effect on that patient”. Leaving aside for the moment the court’s contested holding that such stigma could actually impede access to timely health care and focusing purely on the issue of “shame and stigma” per se, we see that the court is seeking to ‘protect’ patients, among other things, from merely encountering doctors who express a different moral view from that held by the patient.
This is inconsistent with the court’s holding when the proverbial shoe was on the other foot. In Chamberlain v. School District No. 36, for example, the Supreme Court of Canada rejected the argument that school children should be protected from hearing views contrary to what they were taught at home (in that case, regarding sexual orientation) on the basis that “such dissonance is neither avoidable nor noxious. … The cognitive dissonance that results from such encounters is simply a part of living in a diverse society. It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others. … Exposure to some cognitive dissonance is arguably necessary if children are to be taught what tolerance itself involves.”
In E.T., the petitioner’s Charter claim failed on the basis that there was insufficient evidence of an infringement of his s. 2(a) rights by conflicting messages in the public school curriculum. However, in CMDS, the forced-referral requirement was upheld even though there was no evidence of any patient having been denied access to healthcare by a conscientiously objecting physician. One panel of the Ontario Court of Appeal was unprepared to make inferences to supply the factual foundation (in E.T.), holding to an arguably traditional and restrained approach by requiring concrete evidence of a Charter breach and not inferring it lightly. But a different panel of the same court was willing to supply such an inference in place of concrete evidence (in CMDS)– but only in favour of the College’s s. 1 justification. The CMDS court still required hard evidence of the plaintiff/appellant physicians’ conscience claim (para. 85) and their claim that the forced referral policy would drive physicians to leave Ontario (para. 176).
The CMDS case illustrates that legal submissions which accord with the hegemonic legal view resonate with a decision maker who holds those views, even in the absence of concrete evidence, and the court may be willing to make factual inferences to bridge the gap (“could reasonably be expected to have…”). A court’s conclusion on which expert evidence is cogent, objective, and credible may have a great deal to do with whether the evidence accords with the prevailing legal worldview (referred to as ‘anthropology’ above). This is seen, as a matter of weight and credibility, in A.B. v. C.D. and E.F. as well, where the father’s expert evidence was rejected in favour of the evidence put forward by the child’s gender-transitioning treatment team.
These trends in the jurisprudence strike minority communities as deeply contrary to the state’s duty of neutrality articulated in Saguenay and the approach to freedom of religion claims generally articulated in Amselem and subsequent cases. The courts are not supposed to pronounce upon the truth or goodness of religious belief; they are supposed to take all sincerely held religious beliefs at face value and be agnostic as to their truth. But to censor speech, whether in private litigation such as A.B. v. C.D. and E.F., or public litigation such as Oger v. Whatcott, is to impliedly find it false. The main objective of advocates for the LGBTQ+ community in past legal victories was for the law to tolerate diverse identities and behaviors. The demand has now moved towards the law requiring all individuals to be silent if they hold conscientious moral or religious views regarding those identity claims and behaviours. If Canadian society had understood that this is where the ‘diversity’ claims would lead, it may have taken a very different view of whether those claims should be countenanced.
All of this is deeply concerning, even bewildering. Bible-believing Christianity of various stripes was the numerically dominant religion in Canada until recently. At the time the Charter was enacted in 1982, there was still a broad Christian consensus in Canada. Yet despite enshrining freedom of conscience, religion, and expression as fundamental freedoms, a socially ‘progressive’ interpretation through s. 15 and ‘Charter Values’ has become dominant which has turned the Charter on its head as a justification for infringement of fundamental freedoms, rather than as a protection of them. As the dissent in TWU 2018 at para. 338 notes, this is to turn “the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors.” This was possible only because the interpretation of the Charter in TWU 2018 is one unmoored from the Charter’s historical and philosophical context – the very context within which consistent Supreme Court decisions had previously instructed that the Charter must be interpreted.
If the Charter means whatever the courts say it means it has become a tool of arbitrary power in the hands of those holding positions of authority, rather than an objective legal constraint on those in authority. If the ‘living tree’ is permitted to grow beyond its ‘natural limits’ it gives plenary power to the already-powerful. It becomes a justificatory myth to legitimize the unreviewable power of the Supreme Court and those state authorities whose exercises of power the Supreme Court approves. One Canadian law professor referred to the court’s judgment in TWU 2018 – depriving a private entity of its Charter rights on the basis of unwritten ‘Charter Values’ which were asserted “without an amending formula, without legislative direction and without a vote from the people” – as “nothing less than a slow-motion constitutional coup.”
All of this underscores one of the deep ironies in the TWU 2018 litigation: the Canadian legal establishment, including all of its law schools, and many of its legal regulators, invoked the value of diversity to prohibit TWU from opening what would have been the first law school in Canada to research and teach from a different legal worldview. The status quo successfully invoked the principle of diversity in defence of their own monopoly, and prevented the emergence of the first truly diverse voice in Canadian legal research and education.
The task of the Christian lawyer
In light of all of the above, there is an urgent need for minority religious communities in Canada to effectively communicate to courts and tribunals the deeply troubling immediate impacts, and subsequent implications, of the expansive interpretation of the concept of harm discussed in this article. The Supreme Court majority in TWU 2018 almost certainly did not intend the results discussed here, but its decision has added momentum to these trends. In doing so, minority communities face the daunting challenge – faced by minorities throughout history – of making themselves intelligible to a majority which does not share their deepest commitments. While that task is indeed formidable, it is not impossible. Successful critical legal theories such as feminist legal theory and critical race theory, among others, similarly claimed (and still do claim) that worldview (or the situation of the decisionmaker) affects everything – their view of what is good, their approach to evidence, their opinions on justification – everything. These and other critical theories have had varying measures of success in the courts over time. In a sense, an orthodox Christian legal lens (or any worldview which asserts that the state’s power is penultimate only) is the new critical legal theory – or needs to become one. Among other things this means that our community needs to be publishing in peer-reviewed legal journals to lay the foundations for future legal submissions. We have made some strides in this regard (including CLF’s two academic publications with the Supreme Court Law Review in response to Carter and TWU 2018 respectively; and indeed journal articles written while those litigation sagas were underway), but the scope and volume of such writing must now increase.
And in so doing, we must also remind ourselves of the deep scriptural truths which the Canadian Christian community has not needed to rely upon for much of Canadian history: truths which teach us how to live in a foreign culture. These were discussed in my previous article and will not be repeated here, other than to say that they include: rediscovering wisdom from our persecuted brothers and sisters throughout the world today, and throughout history; rediscovering the practice of lament; praying for our governing authorities and our (apparent) enemies; repaying evil with good; being steadfast; and being engaged politically and legally. To these I would now add, in light of recent developments, that it is becoming more urgent for those of us who understand the law to explain these issues to our own communities of faith.
In our submissions to courts (and legislators), and in our educational initiatives in our own churches, our role has characteristics of an intermediary or translator, on the one hand, and of a prophet on the other. We need to make the legal world – not just its processes but also its beliefs and culture, which are not well understood by most outside the legal community – understandable to our faith communities, so that they understand that what is taking place is not so much religious communities being singled out and targeted (although there is some of that going on), but rather the inevitable working-out of a clash of worldviews. At the same time, we need to make our faith communities’ commitments intelligible to the courts; and in so doing our role will often be a prophetic one – asserting, as prophets always do, the existence of a deeper reality which reframes everything, and challenges both the majority’s perception of reality (and of justice), and the resulting status quo.
The Supreme Court of Canada’s majority judgment in Loyola High School (a case in which the minority went even further in favour of religious freedom) contains a recent and resounding defence of the crucial importance of the protection of freedom for parents and religious institutions (including schools) to transmit their moral and religious beliefs to their children. Part of our task as Christian lawyers is to explain to the courts, in a way they can understand, that vigilant judicial restraint is essential to maintain a space where this can occur.
May the Lord be with us as we seek to respond with wisdom, courage, faith, grace, and truth to the challenges of our own time.
*Geoffrey Trotter is a civil litigator and constitutional lawyer who lives and works in Vancouver. Geoffrey served as lead counsel to an intervener in the Carter litigation and as co-counsel to an intervener in the Trinity Western University law school litigation, at all appellate levels in each case. He is interveners’ counsel representing the Christian Legal Fellowship and the Evangelical Fellowship of Canada in the Lamb assisted suicide litigation presently set for trial in BC in November and December of this year.
Geoffrey Trotter, “Implications for the evangelical community of the Supreme Court decision in the Trinity Western University law school case”, online: <https://files.evangelicalfellowship.ca/si/Religious%20Freedom%20in%20Canada/EFC/TWU-implications-Geoffrey-Trotter-2018-09-04.pdf>, located at <https://www.evangelicalfellowship.ca/Resources/Court-Cases/Trinity-Western-University-School-of-Law-2013-201>.
Supra note 1.
Specific examples are discussed in more detail below.
Parliamentary Bill S-260, “An Act to amend the Criminal Code (conversation therapy)”, introduced in the Senate on April 9, 2019, would go even further in the scope of its prohibitions, which would be criminal in nature. See online: <https://www.parl.ca/DocumentViewer/en/42-1/bill/S-260/first-reading>.
Nova Scotia Sexual Orientation and Gender Identity Protection Act, S.N.S. 2018 at s. 7(1).
It could be argued that these things might not constitute “change efforts” in the first place, but the matter is not clear given the expansive definition of “change efforts” in the law.
Chamberlain v. School District No. 36, 2002 SCC 86 at paras. 64-66.
E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893 at para. 94 (“E.T.”).
See again the dissent in LSBC v. TWU, 2018 SCC 32 at para. 308: “Charter ‘values’ … are unsourced. They are, therefore, entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so. … Canadians are permitted to hold different sets of values.”.
The terms used in the ‘Persons Case’: Henrietta Muir Edwards and others v The Attorney General of Canada,  A.C. 124 (P.C.)
Bruce Pardy, “The Supreme Court’s TWU ruling is a cruel joke played on all Canadians” National Post (June 29, 2018), online: <https://nationalpost.com/opinion/bruce-pardy-the-supreme-courts-twu-ruling-is-a-cruel-joke-played-on-all-canadians>.
Supra note 1.
Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at paras. 62-67.
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