Every year, millions of students, and hundreds of thousands of teachers and other staff, start at Australian schools excited by the possibilities of the following 12 months – of the opportunities to learn (or teach) about the world around them, and about themselves.

However, for far too many students – and teachers and other staff – in schools around the country it will be another year in which they have to worry about being discriminated against, lawfully, simply because of their sexual orientation or gender identity.

That’s because, under the anti-discrimination laws of five out of nine Australian jurisdictions, lesbian, gay, bisexual and transgender (LGBT) students can legally be treated adversely by religious schools[i]. Six jurisdictions allow discrimination against LGBT teachers and other staff – plus one state which has a ‘don’t ask, don’t tell’ approach.

To find out what the law is in your jurisdiction, see below. And to find out just how many students, teachers and other staff are potentially affected by these discriminatory provisions, please read to the end of the article.

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Commonwealth

While LGBT students, teachers and other staff are protected against discrimination under the Commonwealth Sex Discrimination Act 1984, these protections are fundamentally undermined by the inclusion of two excessively broad exceptions for religious organisations.

The first is contained in sub-section 37(1)(d), which states that:

“Nothing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

It is highly likely that this provision allows religious schools to discriminate against LGBT students, teachers and staff. But, just in case there was any doubt, the Act includes an additional ‘right to discriminate’ just for religious schools:

“Section 38

Educational institutions established for religious purposes

(1) Nothing in paragraph 14(1)(a) or (b) or (14)(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Sub-section 38(2) establishes a similar ‘right to discriminate’ against contract workers, while sub-section 38(3) reiterates the ability of religious schools to discriminate against LGBT students.

In short, instead of protecting LGBT students and teachers at religious schools against discrimination, the Commonwealth Sex Discrimination Act 1984 authorises their mistreatment (a pattern that, as we shall below, is sadly replicated in most states and territories).

Can religious schools discriminate against LGBT students under Commonwealth law? Yes.

Can religious schools discriminate against LGBT teachers and other staff under Commonwealth law? Yes.

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New South Wales

As I have written elsewhere[ii], despite being the first Australian jurisdiction to introduce gay anti-discrimination laws, NSW now has perhaps the worst LGBT anti-discrimination legislation in the country. A key reason for that is the extremely generous exceptions provided to religious (and other non-government) schools.

As with the Commonwealth, it is likely NSW religious schools have the ‘right to discriminate’ against LGBT students, teachers and other staff[iii] as part of the general religious exception provided by sub-section 56(d):

“Nothing in this Act affects… any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

And, just like the Commonwealth, there is also a specific exception applying only to schools – however, in what is a unique approach, the NSW Anti-Discrimination Act 1977 actually allows all non-government schools to discriminate against students on the grounds of homosexuality or transgender status, even where they are not religious:

“Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority” (emphasis added).

Section 38K establishes a similar right for NSW non-government schools (religious and not-religious alike) to discriminate against transgender students.

There are also equivalent sections regarding lesbian, gay and transgender teachers and other staff at non-government schools (religious and not-religious alike): section 49ZH and 38C respectively.

Therefore, all NSW non-government schools are able to fire (or not hire) LGT teachers and other staff under the Anti-Discrimination Act 1977, and to refuse to admit, treat adversely and even expel students merely for being lesbian, gay or transgender. That is, in a word, appalling.

Can religious schools discriminate against LGBT students under NSW law? Yes – and that includes non-government schools that are not religious, too.

Can religious schools discriminate against LGBT teachers and other staff under NSW law? Yes, including non-government schools that are not religious.

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Victoria

Victoria is another jurisdiction that has adopted the ‘two-fold’ approach to permitting discrimination by religious schools against LGBT students, teachers and other staff.

First up, sub-section 82(2) of the Victorian Equal Opportunity Act 2010 states that:

“Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

This is then supplemented by section 83, which is entirely concerned with providing religious schools with an explicit ‘right to discriminate’:

“Religious schools

(1) This section applies to a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles.

(2) Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that-

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”

In 2016, there were two attempts to limit the impact of these sections – the first, by the Andrews Labor Government, would have compelled religious schools (and other religious employers) to demonstrate that discrimination against LGBT employees was an ‘inherent requirement’ of the respective position[iv]. The second, by the Victorian Greens, would have prohibited discrimination against LGBT students.

Unfortunately, both Bills were voted down by the Upper House (and specifically by Liberal and National Party MLCs) leaving LGBT students, teachers and other staff in Victorian religious schools exposed to mistreatment solely because of who they are.

Can religious schools discriminate against LGBT students under Victorian law? Yes.

Can religious schools discriminate against LGBT teachers and other staff under Victorian law? Yes.

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Queensland

It may be surprising for some (especially given they only equalised the age of consent in 2016), but Queensland is one of four jurisdictions that does not provide carte blanche for religious schools to discriminate against LGBT students, teachers and other staff.

That is because they have adopted a more limited version of the broad general exception enacted elsewhere. Section 109 of the Queensland Anti-Discrimination Act 1991 provides:

“Religious bodies

(1) The Act does not apply in relation to-

(d) unless section 90 (Accommodation with religious purposes) applies – an act by a body established for religious purposes if the act is –

(i) in accordance with the doctrine of the religion concerned; and

(ii) necessary to avoid offending the religious sensitivities of people of the religion.

(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area” (emphasis added).

LGBT students are protected from discrimination as a result of this provision.

Prima facie, it would appear that LGBT teachers and other staff should be too – after all, sub-section (2) says the religious exception does not apply to work.

However, there is an additional section of the Anti-Discrimination Act 1991 that does authorise discrimination against LGBT employees of religious schools in certain circumstances. Section 25 states:

“25 Genuine occupational requirements

(1) A person may impose genuine occupational requirements for a position.

Example 4- employing persons of a particular religion to teach in a school established for students of the particular religion

(2) Subsection (3) applies in relation to-

(a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes…

(3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

Example for paragraph (a)- A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment.

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.

(4) Subsection (3) does not authorise the seeking of information contrary to section 124.

(5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following-

(a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions;

(b) the consequences for both the person and the employer should the discrimination happen or not happen.”

Summarising the above, religious schools in Queensland can discriminate against LGBT teachers and other staff if:

• the employee acts in a way contrary to the employer’s religious beliefs during the selection process, at work or in connection with work, and
• the employer can show it was a genuine occupational requirement that the employee act in accordance with those religious beliefs.

But, if the teacher or staff member does not act in such a way (which presumably includes the mere acknowledgement of having a same-sex partner, for example), they cannot be punished simply for being lesbian, gay, bisexual or transgender. Further, the religious school cannot ask whether the employee is LGBT.

In short, Queensland allows a ‘don’t ask, don’t tell’ approach to LGBT teachers and staff in religious schools – but they can still be fired for being ‘out’ at work. Of course, more than two decades of US military policy demonstrated the folly of DADT – and it says a lot about the terrible state of Australian LGBT anti-discrimination laws that the Anti-Discrimination Act 1991 remains the third-best law in this particular area.

Can religious schools discriminate against LGBT students under Queensland law? No.

Can religious schools discriminate against LGBT teachers and other staff under Queensland law? Yes, in some circumstances (including where it is a genuine occupational requirement, and the employee is ‘out’ at work). No, when the employee is not ‘out’ – and a ‘don’t ask, don’t tell’ policy applies.

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Western Australia

The Western Australian Equal Opportunity Act 1984 is far less complex – and far less positive – in terms of its approach to LGBT anti-discrimination protections for students, teachers and staff in religious schools.

Just like the Commonwealth, NSW and Victoria, Western Australia provides ‘dual’ exceptions to religious schools granting them the ‘right to discriminate’. Sub-section 72(d) notes:

“Religious bodies

Nothing in this Act affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

Section 73 then sets out specific, additional exceptions with respect to teachers:

(1) “Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”

And students:

(3) “Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”

Prima facie, that possibly means Western Australian religious schools can only discriminate against students on the basis of their religion, not their sexual orientation or gender identity. However, unlike Queensland’s section 109(2), there is no equivalent limitation on the general religious exception in WA, meaning religious schools still (probably) retain the right to discriminate against LGBT students under section 72(d).

Overall, then, Western Australia provides multiple grounds for religious schools to discriminate against LGBT teachers and other staff, and likely one ground to discriminate against LGBT students.

Can religious schools discriminate against LGBT students under Western Australian law? Yes (probably).

Can religious schools discriminate against LGBT teachers and other staff under Western Australian law? Yes.

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South Australia

The Equal Opportunity Act 1984 makes it clear that religious schools in South Australia can discriminate against LGBT teachers and other staff, as a result of a specific exception in section 34. However, it imposes strict procedural requirements if a religious school wishes to utilise such exceptions:

(3)         This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if— 
(a)         the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and (b)         the educational authority administering the institution has a written policy stating its position in relation to the matter; and 
(c)         a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and 
(d)         a copy of the policy is provided on request, free of charge— 
(i)         to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and 
(ii)         to students, prospective students and parents and guardians of students and prospective students of the institution; and 
(iii)         to other members of the public.

The situation for LGBT students is slightly less clear-cut, with sub-sections 37(1) and (2) providing that:

“Discrimination by educational authorities

(1) It is unlawful for an educational authority to discriminate against a person on the ground of sex, sexual orientation or gender identity-

(a) by refusing or failing to accept an application for admission as a student; or

(b) in the terms or conditions on which it offers to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”[v]

These protections, for LGBT students, appear to be quite strong – however, it should be noted that the general religious exceptions featured in section 50 may still apply to this situation. Again, unlike Queensland’s section 109(2), there is no equivalent limitation on the Act’s general religious exceptions, meaning religious schools still (probably) retain the right to discriminate against LGBT students under sub-sections 50(ba) and (c).

This also appears to be the view of the Equal Opportunity Commission, as expressed in its submissions to the Law Reform Institute review of LGBTI laws in South Australia[vi].

Can religious schools discriminate against LGBT students under South Australian law? Probably.

Can religious schools discriminate against LGBT teachers and other staff under South Australian law? Yes, although procedural requirements may apply.

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Tasmania

Despite being the last Australian jurisdiction to decriminalise homosexuality, Tasmania was the first – and, to date, remains one of only two – states or territories to ensure that all LGBT students, teachers and staff cannot be discriminated against solely because of their sexual orientation or gender identity.

That is because the religious exceptions offered under the Anti-Discrimination Act 1998 are narrowly drafted. In terms of employment, section 51 states that:

“Employment based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.”

In short, a Tasmanian religious school can discriminate against a teacher or staff member because of their religion – but there is no equivalent right to discriminate on the basis of their sexual orientation or gender identity.

The protection in relation to LGBT students is even more unambiguous. Section 51A provides:

“Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents of the other person’s grandparents.”

Not only does this section only apply to admission (and therefore does not authorise discrimination once a student is enrolled, including potential expulsion), it also only applies to the grounds of religious belief or affiliation, and religious activity.

Once again, a religious school can only discriminate against students on the basis of their (or their parents’/grandparents’) religion – they cannot legally mistreat students on the basis of their, or their family’s, sexual orientation or gender identity. In this way, the Tasmanian Anti-Discrimination Act 1998 provides a model to which other Australian jurisdictions should aspire (and which the ACT Government has recently emulated).

Can religious schools discriminate against LGBT students under Tasmanian law? No.

Can religious schools discriminate against LGBT teachers and other staff under Tasmanian law? No.

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Australian Capital Territory

The ACT Government recently passed the Discrimination Amendment Act 2018 which has successfully adopted the best-practice approach of Tasmania in this area.

The previous specific exceptions for religious schools (in section 33) were abolished, and the general religious exception (in section 32) has been limited, and now does not allow religious schools to discriminate against students, teachers and other staff on the basis of their sexual orientation, gender identity or intersex status.

Like Tasmania, they do allow schools to preference students and teachers in admission and employment, respectively – although have gone even further than Tasmania by requiring schools that want to discriminate in this way to publish their policies.

Can religious schools discriminate against LGBT students under ACT law? No.

 Can religious schools discriminate against LGBT teachers and other staff under ACT law? No.

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Northern Territory

The Northern Territory allows discrimination by religious schools against LGBT teachers and other staff. Arguably, it does so only once (instead of providing two separate ‘rights to discriminate’, like the Commonwealth and some other states) – although once is still one time too many.

While the ‘general religious exception’ in the NT’s Anti-Discrimination Act is comparatively constrained (covering “an act by a body established for religious purposes if the act is done as part of any religious observance or practice”: sub-section 51(d)), there is an additional special ‘right to discriminate’ against LGBT teachers and staff. Section 37A provides that:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

However, there is no equivalent right to discriminate against LGBT students – indeed, like the current Tasmanian legislation, the NT only allows religious schools to discriminate on the basis of the student’s faith (sub-section 30(2) provides that “[a]n educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”)

Combined with the more limited general religious exception outlined above, that means NT religious schools probably cannot discriminate against LGBT students. Consequently, the Northern Territory actually has the fourth-best LGBT anti-discrimination laws in Australia on this issue.

Can religious schools discriminate against LGBT students under Northern Territory law? No.

Can religious schools discriminate against LGBT teachers and other staff under Northern Territory law? Yes.

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Summary

In conclusion, then, far too many LGBT students, teachers and other staff members will start the 2019 school year in a vulnerable position – they can be lawfully discriminated against simply because of who they are.

In terms of students, such discrimination is permitted in religious schools under the anti-discrimination laws of:

• Commonwealth
• New South Wales
• Victoria
• Western Australia, and
• South Australia (probably).

Only Queensland, Tasmania, the Australian Capital Territory and the Northern Territory have chosen to protect students in religious schools from homophobic, biphobic and transphobic discrimination.

As we have seen, the situation for teachers and other staff members is even worse – they can be legally mistreated under anti-discrimination legislation in:

• Commonwealth
• New South Wales
• Victoria
• Western Australia
• South Australia (although procedural requirements may apply), and
• Northern Territory.

In Queensland, LGBT teachers at religious schools can be discriminated against if they are ‘out’ – otherwise a ‘don’t ask, don’t tell’ policy applies. Only Tasmania and the ACT refuse to provide religious schools with an explicit ‘right to discriminate’ against LGBT teachers and other staff.

Up to this point, this discussion has been very ‘legal’, and somewhat technical. But it is important to remember that the impact of these religious exceptions is significant in practical terms.

Based on data from the Australian Bureau of Statistics[vii], in 2015 there were more than 1 million students enrolled at Australian schools where lesbian, gay, bisexual and transgender students could be discriminated against simply because of who they are.

In fact, the exact number was 1,007,864[viii]. With the number of students in non-government schools rising by 1.4% per year, this has likely risen to above 1,040,000 at the start of 2019 (despite recent changes meaning LGBT students in Canberra are now protected).

The number of teachers and other staff that can be lawfully discriminated against is just as confronting.

In 2015, 110,073.8 Full Time Equivalent positions[ix] were at religious schools that could legally discriminate against teachers and other staff members who were lesbian, gay, bisexual or transgender.

An additional 28,944.1 FTE positions – employees at religious schools in Queensland – could be adversely treated if they were ‘out’ at work.

 

In fact, of the 141,806.1 FTE positions at religious schools nationally, only the 2,788.2 FTE positions in Tasmania were fully protected against discrimination on the basis of their sexual orientation or gender identity – or less than 2% of teachers and staff members at religious schools nationally. Although, from the 2019 school year, they will be joined by teachers and other staff at religious schools in the ACT (2,690.8 FTE positions in 2015).

The numbers of students, teachers and staff who can legally be discriminated against if they happen to be LGBT are almost too large to comprehend. They remain so even when broken down by jurisdiction.

For example, in my (adopted) home state of NSW, 409,728 students[x] attend, and 41,487.8 FTE[xi] teachers and other staff members are employed at, religious schools that can practice this (abhorrent) discrimination.

Of course, not all religious schools engage in the mistreatment of lesbian, gay, bisexual and transgender students, teachers and staff. I’m sure there are many that refuse to discriminate on the basis of sexual orientation and gender identity, and aspire to be genuinely inclusive learning environments.

But the fact remains that these schools retain the legal ability to exclude LGBT students and employees simply because of who they are – and, in my opinion at least, I do not believe they can be fully inclusive until this ‘right to discriminate’ is removed.

And so, with the school year commencing, and parliamentary sittings set to resume around the country shortly, I would argue that Commonwealth, state and territory MPs (outside Tasmania and the ACT) should educate themselves about this unacceptable discrimination.

If they do, they might finally take action to ensure that all students can learn in classrooms that are free from anti-LGBT discrimination – and are taught by the best teachers available, including LGBT teachers, and not just the best cisgender heterosexual teachers.

If they don’t – if Members of Parliament continue to allow more than 1 million students to attend, and more than 110,000 teachers and staff to be employed at, religious schools that can lawfully discriminate on the basis of sexual orientation and gender identity – then those MPs deserve to receive an ‘F’, in 2019, and for every year until this unacceptable situation is fixed.

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Footnotes:

[i] Intersex students (and teachers and other staff) are not included in this article because, irrespective of their jurisdiction, they should be protected by the Commonwealth Sex Discrimination Act 1984, and, according to major religious groupings during the development of that legislation, the religious exceptions contained therein do not apply to intersex status.

[ii] What’s Wrong With the NSW Anti-Discrimination Act 1977.

[iii] It should be noted that the NSW Anti-Discrimination Act does not prohibit discrimination on the basis of bisexuality, at all – it is included as part of the LGBT acronym here for the sake of consistency across the article.

[iv] For more, see Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

[v] Note that these provisions only apply to students – there is no equivalent section for teachers and other staff.

[vi] This would also reflect judicial interpretation of the general religious exception in NSW (including in cases like OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010)).

[vii] Australian Bureau of Statistics – 4221.0 Schools, Australia, 2015, released 04/02/2016

[viii] This calculation is based on the total number of students attending Catholic and Independent schools nationally (1,305,843) minus the number of similar students in those jurisdictions where they are protected from discrimination: Queensland (262,166); Tasmania (24,142) and Northern Territory (11,671). Unfortunately, the dataset provided does not identify Independent schools as religious versus non-religious, although the proportion that are non-religious is considered to be extremely small. Therefore, for the purposes of calculating this estimate, all Independent schools have been allocated as ‘religious’.

[ix] As with the previous calculation, this figure is based on the number of FTE positions at Catholic and Independent schools Australia-wide (141,806.1) minus the 28.944.1 in Queensland where the ‘don’t ask, don’t tell’ policy applies, and 2,788.2 in Tasmania, where LGBT teachers and staff are protected against anti-LGBT discrimination. Once again, the dataset provided does not identify Independent schools as religious versus non-religious, although the proportion that are non-religious is considered to be extremely small. Therefore, for the purposes of calculating this estimate, all Independent schools have been allocated as ‘religious’.

[x] Noting that the caveat that applies to national figures (about the treatment of religious versus non-religious Independent schools) does not apply here – all non-government schools in NSW can discriminate against LGBT students, including non-religious schools.

[xi] The caveat – about the treatment of religious versus non-religious schools – does apply here however, because non-religious Independent schools in NSW cannot discriminate against LGBT teachers and staff, only LGBT students.