Update: 15 January 2017
Unfortunately, this legislation was voted down by the Victorian Legislative Council on 6 December 2016.
As reported by The Age here (‘Coalition and conservative crossbenchers unite to vote down equal rights bills’), the Liberal and National Parties rejected the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, describing it as an attack on ‘religious freedom’.
Of course, it was nothing of the sort – instead it was a modest (some might argue too modest) reform that would have simply required religious schools and other religious bodies to demonstrate that any discrimination against LGBT employees was because of an ‘inherent requirement’ of the relevant job. Nothing less, and nothing more.
But even that was too much for Coalition MLCs, meaning lesbian, gay, bisexual and transgender teachers at religious schools, and LGBT employees at other religious organisations, can continue to be discriminated against for at least another two years, solely because of who they are and irrespective of the responsibilities of the actual role they are performing.
Hopefully, Victoria’s LGBTI community remembers this shameful sell-out by the Liberal and National Parties when they cast their ballots on 24 November 2018 – and that the next Parliament strengthens the state’s LGBTI anti-discrimination laws as a matter of priority in early 2019.
Ten days ago I wrote about the first of two LGBTI law reforms put forward by the Andrews Labor Government that are currently before the Victorian Parliament – the Births, Deaths and Marriages Registration Amendment Bill 2016.
This post will discuss the second – the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.
As the title suggests, this Bill will amend the religious exceptions currently contained in the Equal Opportunity Act 2010, making it more difficult, in certain circumstances, for religious bodies and schools to discriminate against employees on the basis of their sexual orientation or gender identity[i].
It does this by reintroducing the ‘inherent requirements test’ for employment by religious bodies or schools, which was part of the Act as passed in 2010, but which was subsequently repealed by the Baillieu Liberal-National Government in 2011 before it commenced operation.
This test is set out in clauses 3 and 4 of the Bill, which would amend the current exceptions applying to religious bodies and religious schools featured in sections 82 and 83 respectively:
“(3) Nothing in Part 4 applies to anything done in relation to the employment of a person by a religious body where-
(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and
(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that the person does not meet that inherent requirement.
(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).”[ii]
As you can see from this proposed wording, these are very modest changes. All the Bill does is to remove the ‘blanket’ ability for religious bodies and schools to discriminate against all employees on the basis of these attributes, replacing it with a slightly narrower ability whereby, in order to discriminate, the body or school must show that such discrimination is required because of the particular position involved.
As described by Attorney-General Martin Pakula in his second reading speech:
“A large number of people are employed by or seek to be employed by religious bodies and schools in Victoria, in a range of different positions. In these circumstances, it is fair to ask these organisations to demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute…
“What the test will do, and appropriately so, is require those organisations that do seek to discriminate in employment on religious grounds to demonstrate the necessary connection between their particular religious beliefs and the need to discriminate.”
Despite the extremely modest nature of the Bill, it has nevertheless attracted strong opposition from the Australian Christian Lobby[iii] and the Liberal and National Opposition, meaning that, although it has cleared the Legislative Assembly where the Government has the numbers, it is unclear whether it will be passed in the Legislative Council where the Government does not, and where it is expected to be debated later this week (with Victorian Parliament sitting from Tuesday 11 October).
Given this, I have sent a short email to all members of the Victorian upper house, encouraging them to pass this Bill, with the text included at the end of this post.
Before we get to that, however, an important caveat. Regular readers of this blog would be aware that I am opposed to religious exceptions beyond those that are necessary for the appointment of religious office-holders, and for the observance of religious ceremonies.
Indeed, these views formed part of my criticisms of the Victorian anti-discrimination framework, expressed earlier this year in my post What’s Wrong With Victoria’s Equal Opportunity Act 2010?[iv]
On this basis, I would obviously support amendments to the religious exceptions contained in the Act that go beyond what has been proposed by the Andrews Labor Government. This would, at the very least, include extending the ‘inherent requirement test’ to protect those people accessing services, including education, from these religious bodies and schools, in addition to employees.
However, we have already seen an unsuccessful attempt by the Victorian Government, this term, to restrict the rights of religious bodies to discriminate against people accessing services – it sought to prevent discrimination against same-sex couples by religious adoption agencies as part of the broader introduction of adoption equality.
Those particular amendments to religious exceptions were defeated in the Victorian Legislative Council, while the overall reform passed.
In this context, it is difficult to see how any amendments to religious exceptions that go further than those currently proposed would be passed by the upper house[v]. Indeed, the fate of the narrow changes that are contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 still seems precarious.
As a result, I have chosen to send this short email calling for these reforms to be passed, as a minimum standard, and in the hope that more comprehensive changes may be able to be made by a subsequent parliament, one where (hopefully) the influence of the extreme right is less powerful[vi].
Monday 10 October 2016
Dear Member of the Victorian Legislative Council
Please Support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016
I am writing to call on you to support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 when it comes before the Legislative Council.
This Bill is an important reform that will better protect lesbian, gay, bisexual and transgender (LGBT) employees, and prospective employees, from discrimination that has absolutely nothing to do with their ability to do their jobs.
As noted by Attorney-General Martin Pakula in his second reading speech, these reforms simply ask religious bodies and schools to “demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute.”
These are modest changes, and it is difficult to see how the introduction of an ‘inherent requirement test’ can be argued against.
In practice, voting against the reforms contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 is effectively saying that LGBT people can be discriminated against simply because of their sexual orientation or gender identity, even where there is absolutely no reason why they cannot perform a particular role.
I do not believe such an extreme ideological position is sustainable in 2016. I sincerely hope you agree, and in doing so, vote for this Bill.
Please do not hesitate to contact me, at the details provided below, should you have any questions, or wish to clarify any of the above.
[i] Noting that intersex status is not a protected attribute under Victorian law.
[ii] The wording of the amendment in relation to religious schools is largely similar.
[iii] Media Release, Is this kind of Government interference really warranted?, 1 September 2016.
[iv] Also expressed through my Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016.
[v] Perhaps the only complementary change that stands some chance of success in the current political environment would be the introduction of a provision requiring religious bodies and schools seeking to use the ‘inherent requirement exception’ to advertise the fact it will discriminate against LGBT employees with respect to particular positions, rather than simply asserting this ability as part of any defence to discrimination proceedings. However, determining whether such an amendment would be passed is best left to Victorian LGBTI advocates.
[vi] In drafting this email I have been careful to avoid language that rules out the need for further reform, or that would contradict amendments to the Bill, such as those proposed by the Victorian Greens (which would limit the ability of religious bodies or schools to discriminate to a greater degree), even if it is my personal view that such amendments are unlikely to be successful at this time.