On 30 November 2017, the Committee published an Interim Report, looking at the issue of freedom of religion and how it is applied in domestic law. That report can be found here.
In particular, Chapter 7 (from page 75 onwards) discusses the interaction between religious freedom and other human rights, including the right to be free from discrimination. This is obviously the most relevant debate for the LGBTI community.
The Committee did not make any recommendations, but did raise a number of now-familiar arguments by the Australian Christian Lobby and others that rather than narrowing religious exceptions to anti-discrimination laws, they should be broadened, as well as re-framed as positive rights to discriminate (rather than simply exceptions).
It will be interesting to see, if and when the Committee hands down its final report, what recommendations it does make and how they have been shaped by subsequent debates, including the release of the Ruddock Religious Freedom Review and moves to abolish the ability of religious schools to discriminate against LGBT students.
The Joint Standing Committee on Foreign Affairs, Defence and Trade is currently holding an inquiry into ‘religious freedom’, although sadly it is disproportionately focused on promoting the freedom to, rather than freedom from, religious belief. My submission below attempts to redress this imbalance. For more details on the inquiry, click here.
Joint Standing Committee on Foreign Affairs, Defence and Trade
PO Box 6021
Canberra ACT 2066
Dear Committee Secretary
Inquiry into the Status of the Human Right to Freedom of Religion or Belief
Thank you for the opportunity to provide a submission to the above-named inquiry.
In this submission, I will be focusing on Term of Reference 4, namely:
“Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.”
In my view, Australian Governments, of all levels, all-too-often promote the freedom of religion – and in particular, the freedom of christian beliefs – at the expense of the equally-important freedom from religion.
The imposition of christianity on others, including on those who are atheist or have no religious belief, as well as its negative consequences for many lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians (who may or may not be christian themselves), can be observed in multiple ways.
Symbolically, there is a range of ways in which christianity is treated preferentially in Australian law which I believe is inappropriate in a country which is, or at least should be, secular (and by that I mean a nation that does not favour, or disfavour, any particular belief or lack of belief).
This includes having a formal head of state (the King or Queen of England) who is also, as a function of this role, the symbolic head of a christian denomination (the Anglican church), as well as the fact that each Commonwealth parliamentary sitting day begins with the recitation of a christian statement (the lord’s prayer).
More substantively, there are a number of ways in which the principle of separation of church and state – which should operate to protect both secular government, and the free exercise of religion, including freedom from religion – has been fundamentally breached by Federal, and State and Territory, Governments. This is especially apparent in education, and particularly in relation to public schools.
First, the inclusion of Special Religious Instruction (SRI) or Special Religious Education (SRE) in the school timetable is completely inappropriate because religious indoctrination, which is primarily christian indoctrination, should have no place in public classrooms.
On a practical level, SRI/SRE is also flawed for several reasons, including that it regularly operates as an ‘opt-out’ system rather than ‘opt-in’, and also because the ‘choice’ in many state schools is limited to either attending a lesson of christian indoctrination, or doing nothing (there can be few better examples of wasting time than mandating some students do not learn anything at all because other students are learning about their particular god or gods, something that should instead be taking place in the home or their respective place of worship).
SRI/SRE also frequently has a detrimental impact on LGBTI students. This is because it is disproportionately conducted by evangelical christians who, as numerous publicly-reported examples demonstrate, are more likely to express anti-LGBTI views, causing harm to students who are not cisgender and/or heterosexual.
As recently noted by crikey[i]:“While religious groups complain about the teaching of sex education issues, the [NSW Government] review found that religious instruction teachers were “overstepping the mark” in addressing issues of sexuality and explicitly expressing homophobic views.”
A second example of the fundamental breach of the separation of church and state in relation to government schools, which infringes upon the freedom from religion, can be found in the long-running, controversial National School Chaplaincy Program, which involves the (mis)use of public monies to pay public schools to hire people who – at least for the majority of the scheme’s existence – must be religious in order to be employed.
Despite guidelines that stipulate these religious (and in the vast majority of cases, christian) appointees must not ‘proselytise’ in the classroom or schoolyard, it is inevitable that many will – with evidence that they have repeatedly done so collected over many years[ii].
From my perspective there can be no proper policy justification for the allocation of literally hundreds of millions of Commonwealth, and therefore taxpayer, dollars on a program that preferentially employs people of a religious background (and excludes people who are not religious).
This breach is especially egregious because if public money is to be provided to promote student welfare, then that money should be directed towards employing the best qualified people to do so – trained school counsellors, who may or may not be religious (but whose religious beliefs, or lack thereof, are irrelevant to their ability to perform the role) – rather than ‘chaplains’ who must be of a religious background.
These two policies – SRI/SRE, and the National School Chaplaincy Program – are clear examples of the preferential treatment of religion, and primarily christianity, in contemporary Australia.
However, the most fundamental way in which the freedom from religion is infringed upon in Commonwealth, State and Territory policy is through the operation of ‘religious exceptions’ to anti-discrimination laws.
While appropriate recognition of freedom of religion would accord individuals and groups the right to hold beliefs, to celebrate those beliefs through religious ceremonies, as well as to appoint ministers of religion and other religious office-holders, these religious exceptions go far beyond what is necessary to achieve those aims.
Instead, they allow religious organisations to discriminate against employees, and in many cases against people accessing services, in an extraordinarily broad range of situations.
This includes discrimination in key areas of public life (including health and education), discrimination against people on the basis of irrelevant factors (for example, refusing to hire a qualified mathematics teacher on the basis of their sexual orientation), and discrimination in the use of public funds (in a number of circumstances, religious organisations are permitted to discriminate even where the service involved is part, even in large part, publicly-funded).
Of course, many religious organisations will argue that the ability to discriminate in each of these situations is necessary to ‘manifest beliefs in community with others’. However, such rights are not, and should not be, unfettered.
As observed by the Australian Human Rights Commission in their submission to this Inquiry:
“Legitimate limitations on the freedom to manifest a religion or belief in worship, observance or practice must be prescribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
Anti-discrimination laws, such as the Commonwealth Sex Discrimination Act 1984, exist to protect a variety of groups against harm – effectively protecting their fundamental rights and freedoms – and they should not be undermined by the granting of special rights to discriminate to religious organisations.
It should also be noted that these religious exceptions are disproportionately used to adversely treat lesbian, gay, bisexual and transgender (LGBT) people[iii], who may or may not be religious themselves, but who nevertheless do not deserve to be discriminated against as they go about their daily lives simply because of who they are or who they love.
Essentially, religious exceptions to anti-discrimination laws deny too many LGBT Australians the right to be free from religion, and free from the negative consequences of homophobia, biphobia or transphobia that is based on, or claimed to be based on[iv], religious belief.
Perhaps the worst examples of these laws – and the clearest demonstration of how they inherently lead to human rights abuses against LGBT people (among others) – are the religious exceptions that allow religious schools to discriminate against students on the basis of their sexual orientation and gender identity.
For example, section 38 of the Commonwealth Sex Discrimination Act 1984 not only permits discrimination against LGBT [school] employees and contract workers (which is unacceptable in and of itself), sub-section (3) also states that:
“Nothing… renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy 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 order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”
Basically, under the Sex Discrimination Act, religious schools are given free rein to mistreat lesbian, gay, bisexual and transgender students, including by expelling or refusing to enrol these students (or refusing to enrol the children of rainbow families), teaching them that who they are is not okay, or in other ways treating them significantly worse than heterosexual and/or cisgender students.
The majority of states and territories have adopted similar provisions with NSW even going so far as allowing all non-government schools, including private schools that are not religious at all[v], to adversely treat LG and T students[vi].
It should be noted that the overwhelming majority of these religious schools are in receipt of Commonwealth, and State or Territory, funds, including from LGBT taxpayers – the notion that my taxes are being used by these organisations to actively discriminate against young lesbian, gay, bisexual and transgender students is both heartbreaking, and infuriating.
But, even if absolutely no taxpayer funds were involved, allowing religious schools to discriminate in this way would still be a fundamental breach of the human rights of these students to be who they are – including their sexual orientation and/or gender identity, which are both inherent or essential attributes – and to not be unfairly discriminated against as a result.
This principle is reinforced if we substitute students of different racial or ethnic backgrounds for LGBT students. We would not legally allow schools, whether government, religious or otherwise independent, to discriminate against students on the basis of their race or ethnicity. So why should we permit any school, irrespective of its ownership, to discriminate against LGBT students for who they are?
In short, any student, in any school, could be lesbian, gay, bisexual, transgender or intersex – and they each have a fundamental right to education, free from discrimination on the basis of their sexual orientation, gender identity or intersex status.
Logically, the only way in which this can be guaranteed is for every school to provide a learning environment that treats all students – heterosexual, cisgender and LGBTI-alike – equally.
In my view, the best interests of children in this situation, who are at their most vulnerable and whose protection is the responsibility of governments of all levels, especially in education which sits squarely in the public sphere, must supersede the religious beliefs of parents, or the schools themselves.
To suggest otherwise is to argue that LGBTI students in religious schools are just collateral damage of the ‘right’ to freedom of religion of others, and that the adverse consequences they inevitably suffer – from mistreatment and exclusion, to bullying, mental health issues and even suicide – should simply be ignored.
Well, I will not ignore these consequences, and I submit that this Committee, and the Commonwealth Parliament, must not ignore them either.
Which means that, if the Joint Standing Committee on Foreign Affairs, Defence and Trade is genuinely interested in the issue of how ‘to protect and promote the freedom of religion or belief in Australia’, then it must also consider the issues of how to protect and promote the freedom from belief, and how to protect LGBTI people from the negative consequences of the religious beliefs of others.
This includes investigating why religious indoctrination continues to feature in the nation’s public school classrooms (in the form of Special Religious Instruction or Special Religious Education), as well as why hundreds of millions of Commonwealth dollars continue to be allocated to employing religious people in our schoolyards (through the National School Chaplaincy Program).
Above all, it means questioning why religious organisations should be granted special rights to discriminate against lesbian, gay, bisexual and transgender employees, and people accessing services (through wide-ranging ‘religious exceptions’ to anti-discrimination laws), and why religious schools are legally permitted to mistreat LGBT students simply because of who they are.
Thank you again for the opportunity to provide a submission to this important inquiry. Please do not hesitate to contact me at the details provided should the Committee wish to clarify any of the above, or for further information.
[i] “Homophobic, anti-science and frightening” religious instruction teachers remain in NSW, crikey, 12 April 2017.
[ii] See Chaplains accused of pushing religion in schools, ABC News, 8 April 2011 and Brisbane school chaplain being investigated for proselytizing after claiming his mission is to disciple school children and their families, Courier Mail, 18 May 2014.
[iii] It is considered unlikely that religious exceptions under the Commonwealth Sex Discrimination Act 1984 would be employed against intersex people.
[iv] The inclusion of religious exceptions to anti-discrimination laws actually encourages individuals and organisations to claim that anti-LGBTI prejudice is based on religious belief because it is less likely to attract consequences (even if the anti-LGBTI prejudice in fact has nothing to do with religion whatsoever).
[v] See NSW Anti-Discrimination Act 1977 sections 49ZO(3), and 38K(3).
[vi] Remembering that, in 2017, the NSW Anti-Discrimination Act 1977 still does not protect bisexual people against discrimination.