Legislating against discrimination in religious schools is harder than you think

By Anja Hilkemeijer
Community leaders, parents, kids, doctors, lawyers, assemble in front of the White House to protest the non-science based policy of segregating LGBTQ children in public schools based on the schools' determination of their gender identity.
ProtectTransKids Protest, Washington, DC. Credit: flickr/Ted Eytan

Should religious schools in Australia, in the name of freedom of religion, be able to exclude gay kids? Current federal law allows religious schools to discriminate against LGBTIQ+ staff and students. Late last year, the Liberal Government, Labor Party, Greens and many independent members of Parliament agreed that the ability to discriminate in this way is not consistent with a diverse and tolerant Australian community and they undertook to change the law.

Australian anti-discrimination law is extraordinarily complex. While discrimination on the basis of sexual orientation is generally prohibited, exemptions under Commonwealth, Victorian, New South Wales and Western Australian laws allow religious schools to exclude students on this basis.

Until the leak of the Ruddock Panel recommendations in October last year drew attention to this exemption – by suggesting some pre-conditions for its use – few people knew it existed and even fewer schools had used it.

The draft bill would allow such ‘indirect’ discrimination if the policy was necessary to ‘avoid injury to religious sensibilities’ and after having ‘regard’ to the best interest of the child.

The leak of the recommendations sparked public outrage. Prime Minister Scott Morrison quickly announced that his government would amend the Commonwealth Sex Discrimination Act to remove the exemption for religious schools in relation to students (but not staff). The Prime Minister promised that this would be done in the next parliamentary sitting week.

If nothing else, the continued existence of an exemption would stigmatise students, make them vulnerable to bullying, prevent them from seeking support should they require it and suppress an open and safe learning environment for all students.

The government’s draft bill was leaked and, as far as it is possible to tell from the leak, it only prohibits direct discrimination against gay students. It would still allow religious schools to indirectly discriminate against them. Indirect discrimination would occur if a policy of apparently general application unevenly impacted gay kids.

For example, the Government’s bill would permit a school to have a policy allowing students to be excluded if they publicly expressed views – say on a badge, social media or at a public rally – contrary to the school ‘ethos’. The draft bill would allow such ‘indirect’ discrimination if the policy was necessary to ‘avoid injury to religious sensibilities’ and after having ‘regard’ to the best interest of the child.

Given that the ‘ethos’ of many religious schools includes the view that homosexuality is sinful, LGBTIQ+ students’ open support for same-sex marriage or other equality rights could see them at risk of exclusion. If nothing else, the continued existence of an exemption would stigmatise students, make them vulnerable to bullying, prevent them from seeking support should they require it and suppress an open and safe learning environment for all students.

The international Convention on the Rights of the Child – to which Australia is a party – requires that the best interests of the child be the primary consideration for ‘all actions’ of public and private social welfare institutions. The government’s draft bill takes a step backwards in this regard.

The Ruddock Review recommends that a school have ‘regard to’ the best interests of the child as the primary consideration and this language is picked up in the Government’s bill. Assuming it is necessary to ‘avoid injury to religious sensibilities’, however, the government’s draft bill would allow a school principal to exclude a student after merely having ‘regard to’ their best interests. In other words, the ‘best interests of the child’ are not necessarily the primary consideration in a decision to exclude them from the school.

Another Ruddock Panel recommendation is that the Commonwealth falls in line with the Australian states and prohibits discrimination on the basis of a person’s ‘religious belief or activity’. This coincides with the open letter by 34 Sydney-based Anglican principals, calling for parliamentarians to maintain the current exemptions protecting religious schools’ ethos until such time as a positive right to religious freedom is enacted into law.

…Tasmanian religious schools could rely on the Commonwealth exemption to exclude gay students despite this not being an option under the Tasmanian law.

While it is reasonable to ‘close the gap’ in Australian anti-discrimination law by ensuring that each jurisdiction prohibits discrimination on the basis of religious belief or activity, care needs to be taken that this does not have unintended effects.

Currently, the federal Sex Discrimination Act allows federal, state and territory anti-discrimination laws to operate simultaneously. Whether this concurrent operation extends to allow state anti-discrimination acts to operate where the federal law provides an exemption (e.g. for religious schools to exclude gay kids) has not been tested in a court.

Neil Foster, author of the Law and Religion Australia blog and a Newcastle University academic, for example, argues that Tasmanian religious schools could rely on the Commonwealth exemption to exclude gay students despite this not being an option under the Tasmanian law. In these circumstances, any amendment to federal law to enshrine a ‘positive right’ to religious belief and activity must make it clear that state and territory laws that are more protective of sexual orientation and gender prevail.

The government’s draft bill was not enacted into law because the Labor Party refused to support it. Six months have passed since this flurry of bi-partisan parliamentary activity to remove the ability of religious schools to discriminate against LGBTIQ+ kids. All eyes are now on the capacity of the victorious Liberal Government to translate these promises into action.

Changing federal anti-discrimination law so that religious schools can no longer exclude LGBTIQ+ kids is vital but care must be taken that any amendments prioritise the best interests of the child. Stigmatising students can never be in their best interests.

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