What ever happened to protecting LGBT students against discrimination? An explainer.

In the last 18 months, anti-discrimination law reform has been the subject of considerable public attention.

 

Following the Ruddock Religious Freedom Review, and including multiple Senate inquiries, hopes had been raised that lesbian, gay, bisexual and transgender (LGBT) students might finally be protected against discrimination by religious schools under Commonwealth law.

 

So far, those hopes have been dashed. Despite promising to do so, the Morrison Liberal-National Government failed to pass any changes to the Sex Discrimination Act 1984 (Cth) to repeal or limit the exceptions that allow religious schools to discriminate against LGBT kids prior to the election being called.

 

In this article, I will attempt to explain how we got here (including where things stand now), who is to blame and what will likely happen from here.

 

How did we get here?

 

In November 2017, then-Prime Minister Malcolm Turnbull referred the issue of whether Commonwealth law adequately protects religious freedom to a panel headed by former Liberal Attorney-General Philip Ruddock.

 

This was to appease conservatives within his Government who were seeking to amend Senator Dean Smith’s flawed Marriage Amendment (Definition and Religious Freedoms) Bill 2017 to include even more religious exceptions than it already did.

 

The Ruddock Review investigated a wide range of issues, including religious exceptions to LGBTI anti-discrimination laws, before handing its report to Turnbull in May 2018 – which the Liberal-National Government then sat on.

 

In October 2018, the Sydney Morning Herald published the leaked recommendations of the Review, focusing on proposals to clarify the existing right of religious schools to discriminate against, and expel, LGBT students.

 

This prompted significant public outcry, including from many parents who had no idea that religious schools, funded by enormous amounts of taxpayers’ money, could lawfully mistreat vulnerable kids in such an abhorrent and appalling way.

 

New Prime Minister Scott Morrison responded by saying his Government would amend the Sex Discrimination Act to prohibit discrimination against LGBT students before the end of the year (2018). It is probably also useful to remember he did this in the context of the lead-up to the Wentworth by-election, which the Government feared losing to a backlash from moderate voters (narrator: they did).

 

The Greens introduced their own Bill to the Senate – the Discrimination Free Schools Bill 2018 – that sought to protect both LGBT students and teachers in religious schools. That was then the catalyst for the first Senate inquiry, looking at ‘Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff’.

 

That Committee reported in late November, recommending that “the Australian Government amend section 37 and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend any other relevant legislative provisions, to prohibit discrimination against students on the grounds of the protected attributes in the Act” [Recommendation 3].

 

This report was immediately followed by Labor introducing their own Bill, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. As the name suggests, its sole focus was on removing discrimination against students, in line with what Morrison had promised in October.

 

However, instead of passing it as he had committed, the Senate referred this Bill off to a second inquiry over the summer break – meaning LGBT students would not be protected for the start of the 2019 school year.

 

In the meantime, the Government finally released the Ruddock Religious Freedom Review in full, in December 2018 (after sitting on it for almost seven months).

 

Morrison and Attorney-General Christian Porter simultaneously provided the Government’s response, in which they abandoned the earlier, explicit promise to protect LGBT students at religious schools, instead committing to send the entire issue of religious exceptions in Commonwealth, state and territory anti-discrimination laws to the Australian Law Reform Commission (ALRC) for yet another review.

 

It was therefore unsurprising when, in February 2019, the Government-dominated Senate Committee inquiring into Labor’s Bill recommended that not only should Labor’s Bill not be passed, but that “the bill, circulated amendments and all relevant matters be referred to the Australian Law Reform Commission for full and proper consideration.”

 

Given the Liberal-National Government’s ongoing opposition to legislation addressing this issue, that meant no amendments to the Sex Discrimination Act 1984 were passed in February or March.

 

Instead, on Wednesday 10 April 2019 – less than 24 hours before the election was called – Attorney-General Porter announced he had referred the issue of religious exceptions to the ALRC for an inquiry lasting 12 months, not reporting back until 10 April 2020.

 

Where do things stand now?

 

Despite the flurry of activity on this issue over the past 18 months, and the past six months in particular, the legal situation now is unchanged:

 

Under the Sex Discrimination Act 1984 (Cth), religious schools are legally permitted to discriminate against, and expel, lesbian, gay, bisexual and transgender students on the basis of who they are.

 

They are also free to fire, and refuse to hire, LGBT teachers and other staff, despite the significant amount of taxpayers’ money used to pay their salaries.

 

This is obviously incredibly disappointing, especially given the supposed bipartisan commitments to address this issue made late last year. Which prompts the equally-obvious question:

 

Who is to blame?

 

While responsibility for major #auspol policy failures like this can usually be shared around, the blame for the lack of action in this particular area lies squarely at the feet of the Morrison Liberal-National Government.

 

The have failed to progress anti-discrimination law reform in four key ways:

 

  1. The Morrison Liberal-National Government refused to introduce its own Bill to protect LGBT students

 

Despite Prime Minister Morrison’s October 2018 commitment to introduce and pass amendments to the Sex Discrimination Act to protect LGBT students before the end of the year, his Government never actually introduced its own Bill to make these changes. Which, you’d have to admit, makes it extremely difficult to actually pass anything.

 

Indeed, if the Liberal-National Government was ‘fair dinkum’ about fulfilling its promise, it would have at least tried to move its own legislation on this issue. With a Prime Minister who is quite fond of saying ‘if you have a go, you get a go’, his Government didn’t bother to have a go at changing this law – meaning LGBT students don’t get a go at learning in a discrimination-free environment.

 

  1. The Morrison Liberal-National Government sought to introduce new powers to discriminate

 

As noted above, the Labor Opposition and Greens both introduced their own Bills to protect LGBT students, and LGBT students and teachers, respectively. The Labor Bill in particular was subject to Senate debate in late 2018, before being referred to the second Committee inquiry.

 

During this debate, the Liberal-National Government introduced amendments that would ensure that, even if religious schools lost their specific exception in section 38(3) of the Sex Discrimination Act, they would continue to be able to discriminate under the general religious exception in section 37(1)(d) [Government amendment KQ147].

 

They also sought to expand the reasonableness test for indirect discrimination to include consideration of whether any “condition, requirement or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed” [Government amendments KQ148, 150 and 151]. This would have effectively expanded rather than restricted the range of groups who could be discriminated against because of religious beliefs to include intersex students as well (among others).

 

Finally, the Government wanted to allow religious schools to discriminate against LGBTI students if it was part of teaching activity (broadly defined to capture “any kind of instruction of a student by a person employed or otherwise engaged by an educational institution”) as long as it was done “in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” [Government amendment KQ149].

 

If any or all of the Morrison Government’s amendments had been passed, it would have meant religious schools could have continued to discriminate against LGBT students – it just would have been done under different sections of the Act.

 

  1. The Morrison Liberal-National Government tried to limit changes to preventing expulsion only

 

Another way in which the Government undermined anti-discrimination law reform was by narrowing its scope to preventing religious schools from expelling or refusing to enrol LGBT students, while continuing to allow them to discriminate against, and mistreat, vulnerable kids in other ways.

 

This approach formed part of Prime Minister Morrison’s early rhetoric following the leaking of the Ruddock Review Recommendations in October 2018, as he focused on expulsion: “I don’t think if someone’s at a school they should be kicked out because they have a different sexuality to what might be believed to be the appropriate thing by a particular religious group” [emphasis added].

 

While subsequent debate seemed to broaden to cover all forms of discrimination against LGBT students, in February 2019 Government Senators once again tried to limit the reforms to preventing expulsion only, with The Australian reporting Government members of the Senate Committee sought a deal with the Opposition on this issue (‘ALP stops bid to protect gay kids’, The Australian, 19 February 2019).

 

Thankfully, the Opposition rejected this narrow approach. This is important because there are many different ways in which religious schools can discriminate against LGBT kids, without necessarily expelling them, and they are all harmful (see, for example, my own story here: The longest five years’ ).

 

Only removing the power to expel, while allowing schools to mistreat students in myriad other ways, would have been completely inadequate and inappropriate.

 

  1. The Morrison Liberal-National Government has done everything in its power to delay reform

 

There is absolutely no reason why the Commonwealth Government, and Parliament, could not have passed reforms to the Sex Discrimination Act, protecting LGBT students, before the end of 2018.

 

How can I say that so confidently? Because the ACT Government did exactly that, passing it owns reforms – based on the best practice Tasmanian Anti-Discrimination Act 1998 – between the leaking of the Ruddock Review Recommendations in October and the end of the year. These reforms, which protect both LGBT students and teachers, will commence by 6 June 2019 at the latest.

 

Instead, at Commonwealth level, we have had Labor and Greens Bills, and two Senate inquiries, but no Government legislation and no change to the law.

 

Even worse, we now have a reference to the ALRC that won’t report on the issue until 10 April 2020, meaning any Bill arising from it will likely not be debated until the second half of next year. Consequently, any reforms to protect LGBT students wouldn’t take effect until the start of 2021 – at the earliest.

 

Christian Porter

Attorney-General Christian Porter

 

It is clear, from these four arguments, that the Morrison Liberal-National Government is responsible for the fact LGBT students are still not protected against discrimination as we start the federal election campaign.

 

What people may not be aware of is that they are also responsible for two major threats to LGBT anti-discrimination laws in the near future.

 

The first is the ALRC inquiry itself. Its terms of reference includes the following:

 

consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australia law should be made in order to:

  • limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
  • remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.

 

Now, some people might see the first dot point, and specifically the reference to limiting or removing religious exemptions, as encouraging. And it could be – except that this is also what religious fundamentalist organisations, such as the Australian Christian Lobby, also want (for example, the ACL’s own submission to the Ruddock Review stated that ‘State and Commonwealth Anti-Discrimination laws establish an unhelpful and incomplete framework of religious exemptions which inadequately balance the right of religious freedom against the right to non-discrimination’ before recommending ‘that existing exemptions in anti-discrimination law re reframed as ‘general limitations clauses’).

 

The remainder of that clause – ‘while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos’ – is where the danger lies. Namely, religious exceptions may simply be replaced by the introduction of positively-framed rights to discriminate against LGBT people.

 

The second dot point is just as problematic. Despite the fact there is limited, or no, evidence that people expressing discriminatory views of marriage are suffering real-world adverse consequences, the ALRC is supposed to give significant attention to ‘protecting’ them.

 

This includes undermining the best practice LGBTI anti-vilification laws found in the Tasmanian Anti-Discrimination Act 1998 (which are equivalent to section 18C of the Racial Discrimination Act, and the primary reason why the RDA has been raised in this context) [For a comparison of LGBTI anti-discrimination and anti-vilification laws, click here].

 

The second threat comes from another part of the Morrison Liberal-National Government’s response to the Ruddock Religious Freedom Review: its commitment to introduce a Religious Discrimination Bill.

 

Once again, this should be a positive development. Most people interested in human rights, including myself, support the inclusion of religious belief or lack of belief as a protected attribute in anti-discrimination law in jurisdictions where it is not currently protected (specifically, the Commonwealth, New South Wales and South Australia). This will help ensure religious minorities are protected against discrimination in education, employment and service delivery.

 

On the other hand, a Religious Discrimination Bill could become a vehicle to include positively-framed rights for religious individuals and organisations to discriminate against others, becoming a stealth ‘Religious Freedom Bill’, in the same way that some Liberal-National MPs and Senators tried to turn a same-sex marriage bill into anti-LGBTI equality legislation.

 

The truth is we will not know which option, good or bad, the Government is pursuing until we see the text of the Bill itself. Which is why Attorney-General Porter’s announcement that the Religious Discrimination Bill would not be released until after the election is so worrying (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).

 

Despite saying in December at the release of the Ruddock Religious Freedom Review that “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, LGBTI Australians will now be kept in the dark on a key new law that could have a significant impact on our rights (although it is probably safe to assume major religious organisations have been consulted on its drafting).

 

Not only has the Morrison Liberal-National Government stopped laws to protect LGBT students against discrimination from passing during the 45th Parliament, they have already started two processes (the ALRC Inquiry, and the Religious Discrimination Bill) that could see LGBT rights go backwards in the 46th.

 

What about the other parties?

 

The Labor Party has largely been supportive of LGBTI rights throughout this (sometimes convoluted, but consistently frustrating) process.

 

As discussed earlier, they introduced the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that does just what it says on the box. They have been very clear they will protect LGBT students in religious schools against discrimination if they are elected next month.

 

However, the ALP has been somewhat less clear in terms of their plans for teachers. While committing to remove the exceptions that allow religious schools to fire, and refuse to hire, LGBT teachers and other staff, they have also made vague comments about introducing amendments to ensure religious schools can continue to impose their ‘ethos and values’. Bill Shorten and the Labor Party need to outline exactly what they intend to do on this issue, before the election.

 

The Greens are obviously supportive of removing exceptions that allow discrimination against both LGBT students and teachers. They have also indicated that religious exceptions should be removed in other areas (including health and community services), as well as in the Fair Work Act 2009 (Cth).

 

In terms of the minor parties, the right-wing fringe groups (including Pauline Hanson’s One Nation, Cory Bernardi’s Australian Conservatives and the racist Senator who shall not be named) are exactly as homophobic and transphobic as you would expect, and don’t deserve our attention.

 

However, one minor party earns a special mention – although not for reasons they would appreciate. That is because the Centre Alliance (the renamed Nick Xenophon Team) supported some of the Government’s amendments that, in practice, would have permitted religious schools to discriminate against LGBT students. In fact, the position of the Centre Alliance is the reason that Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill could not at least pass the Senate in late 2018.

 

What happens next?

 

The outcome of the federal election on Saturday 18 May will determine what happens next in terms of anti-discrimination law reform.

 

If the Morrison Government is returned, it is unclear whether LGBT students will be protected, and if so what that change would look like. Even if they remove the specific religious exceptions in the Sex Discrimination Act, it is highly likely they will simply replace them with new, positively-framed rights for religious organisations to discriminate against LGBT people, including in education.

 

Any reforms under a re-elected Liberal-National Government will also be delayed until at least the second half of 2020 (after the ALRC has completed its inquiry), meaning LGBT students in religious schools will be exposed to discrimination until at least 2021.

 

And, as discussed above, both the ALRC inquiry itself, and the imminent (although still secret) Religious Discrimination Bill, could see LGBTI rights actually go backwards under a 2nd term Morrison Government.

 

If the Labor Party is elected, on the other hand, it is highly likely that LGBT students will be protected against discrimination as a matter of priority. It is also probable that LGBT teachers and other staff will be protected in some form – although it will be up to LGBTI organisations to push them to make sure any such changes are as straight-forward as possible, and not undermined by ‘ethos and values’-style amendments (an increased Greens presence in the Senate would also assist in this respect).

 

Nevertheless, we must remember that the only thing in this area that is guaranteed to happen, every school day of this election campaign – and for months, and possibly years, afterwards – is that too many LGBT students will attend a school where they can be lawfully discriminated against.

 

And the primary reason is that Prime Minister Scott Morrison broke his promise, made just six months ago, to do something about it.

 

**********

 

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Advertisements

Protecting LGBT Students and Teachers Against Discrimination

Update 23 February 2019:

 

The Senate Legal and Constitutional Affairs Committee handed down its report on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 on Thursday 14 February 2019.

 

Although it is perhaps more accurate to say it handed down three reports. The majority report, by Government Senators, recommended that the Bill – which, as the name suggests, would protect LGBT students in religious schools against discrimination – not be passed. This is a broken promise, after Prime Minister Scott Morrison’s commitment to protect these students in October last year.

 

Even worse, Coalition members of the Committee recommended that the issue of religious exceptions be referred to the Australian Law Reform Commission for another review. For context, we have already had the Ruddock Religious Freedom Review, a Senate inquiry into the issue of discrimination against LGBT students and teachers last November, and this most recent Senate review.

 

We don’t need another inquiry, review or report. We just need a Government to take action to protect LGBT students and teachers. Nothing more. Nothing less.

 

The Labor members of the Committee provided a dissenting report, which (unsurprisingly) called for their Bill to be passed. Importantly, they also rejected all five of the Government’s amendments that would allow discrimination against LGBT students to continue, contrary to the purpose of the legislation (for more, see my original submission to the inquiry below).

 

On the other hand, Labor Senators also rejected the proposed Greens’ amendment that would remove the Sex Discrimination Act 1984 exception allowing religious schools to discriminate against LGBT teachers. They did restate the ALP’s commitment to protect LGBT teachers in the future, although it is unclear what form this would take.

 

We will need to keep pressure on Bill Shorten, and the ALP, to protect LGBT teachers and to ensure these protections are not undermined by provisions allowing religious schools to discriminate on ‘ethos and values’.

 

Finally, the Greens also provided a dissenting report, supporting the ALP Bill, rejecting the Government’s amendments (for the same reasons as Labor) and calling for their own amendment protecting LGBT teachers to be passed.

 

The Greens have also recommended an urgent review of provisions in the Fair Work Act 2009 (Cth) that allow religious schools to discriminate on the basis of sexual orientation and gender identity.

 

Overall, then, this was a disappointing Committee Report, with the Government’s proposed referral of the issue to the Australian Law Reform Commission nothing more than a delaying tactic.

 

It’s important to remember there was always going to be resistance to this change. There will always be some religious schools that want to discriminate against LGBT students and teachers. And there will always be some politicians who want to let them.

 

It is up to us to continue with this campaign until all schools are safe and nurturing environments for all students, irrespective of their sexual orientation and gender identity. Because our kids are counting on us.

 

Original submission:

 

there's no place for discrimination in the classroom-10

 

Start the new year right, by writing to support the right of LGBT students, teachers and other staff at religious schools to be free from discrimination.

 

The Senate Standing Committee on Legal and Constitutional Affairs is currently holding an inquiry into Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, and proposed amendments to it.

 

Full details of this inquiry can be found here.

 

The most important details are that:

 

  • This is our opportunity to call for all schools to be made free from discrimination on the basis of sexual orientation and gender identity
  • Submissions close on Monday 21 January 2019 (ie two weeks away) and
  • Once you’ve written yours, it can be uploaded here or emailed to sen@aph.gov.au

 

**********

 

If you are looking for some ‘inspiration’ about what to write, here are my suggestions:

 

  1. Personal stories

 

If you are, or have been, a student, a family member of a student, or a teacher or other staff member at a religious educational institution (including schools and universities), please share what that experience was like.

 

This is especially important if you are a lesbian, gay, bisexual, transgender or intersex person, or member of a rainbow family, who has encountered homophobia, biphobia or transphobia at a religious school.

 

Remember, these examples can range from overt or outright discrimination (such as a student being disciplined, or a teacher being fired or not hired, simply for being LGBT) through to more subtle or insidious forms of mistreatment (being made to feel invisible, having LGBTI content excluded from subjects like health and physical education, or feeling unable to disclose your sexual orientation or gender identity, or information about your partner, to others).

 

The more stories that we share, the louder our collective voice for change will be.

 

Importantly, if your submission is deeply personal, you can ask the committee to keep your submission private. From the aph website:

 

If you do not want your name published on the internet, or if you want your submission to be kept confidential, you should:

  • Include the word confidential clearly on the front of your submission and provide a reason for your request.
  • Make sure that your name and contact details are on a separate page and not in the main part of your submission.

Confidential submissions are only read by members of the committee and the secretariat.

Confidential information may be placed in an attachment to the main part of your submission, with a request for the committee to keep the attachment confidential.

The committee will consider your request but you need to know that the committee has the authority to publish any submission.

The committee will contact you if the committee wants to publish something you have asked to be kept confidential.

If you are considering making a confidential submission, you should contact the committee secretariat to discuss this before you send us your submission.

 

  1. Call for LGBT students to be protected against discrimination

 

Whether you have attended or worked at a religious school or not, everyone should call for the ability of religious schools to discriminate against lesbian, gay, bisexual and transgender students to be abolished.

 

Labor’s Bill achieves this outcome, because it would remove both of the existing exceptions in the Commonwealth Sex Discrimination Act 1984 which allow religious schools to do exactly that.[i]

 

In your submission, you should ask for the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be passed urgently, so that all students can learn in a safe and inclusive environment.

 

  1. Call for LGBT teachers to be protected against discrimination

 

One thing Labor’s Bill does not do is remove the exceptions in the Sex Discrimination Act which allow religious schools to discriminate against LGBT teachers and other staff.

 

This discrimination is also wrong. Teachers should be judged according to the ability to do their jobs, not whether they are heterosexual and cisgender. The billions of dollars of taxpayers’ money that is provided to religious schools each year should not be used to reject teachers and other staff simply for being LGBT.

 

Most importantly, in order for the classroom to be a truly safe environment for LGBT children, it must be an inclusive one for LGBT adults too.

 

Employing LGBT teachers means potentially having role models for kids discovering their own sexual orientations or gender identities. On the other hand, if children see teachers being discriminated against just for being lesbian, gay, bisexual or transgender, they will learn the lesson that their school thinks LGBT people are somehow less worthy than other people.

 

In your submission, you should ask for the Greens amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to be supported. These amendments would remove the exceptions in the Sex Discrimination Act that allow religious schools to discriminate against LGBT teachers and other staff.[ii]

 

However, you should call for the Parliament to make similar amendments to the Commonwealth Fair Work Act 2009 as well, because that legislation also allows religious schools to adversely treat,[iii] or unfairly dismiss,[iv] teachers because of their sexual orientation.

 

Finally, you could ask the Parliament to take this opportunity to amend the Fair Work Act to protect transgender and intersex people against adverse treatment and unfair dismissal, because they are currently excluded entirely from these provisions.[v]

 

  1. Call for the Parliament to reject the Government’s proposed amendments

 

The Morrison Liberal-National Government has released its own proposed amendments to the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018.

 

These amendments would allow religious schools to continue to discriminate against LGBT students in three distinct ways.

 

First, the Government’s amendments would reinstate one of the two current exceptions that allow religious schools to expel or otherwise mistreat students because of their sexual orientation or gender identity.[vi]

 

Second, the Government’s amendments would insert an entirely new provision allowing religious schools to discriminate against LGBT students as long as it formed part of ‘teaching activity’ – where teaching activity is incredibly broadly defined as ‘any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’[vii]

 

Third, the Government’s amendments would change the test for whether indirect discrimination is lawful in three differently-worded alternative ways,[viii] but with all three adding consideration of whether a ‘condition, requirement or practice… imposed, or proposed to be imposed [by a religious school is] in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

The Government’s changes are unnecessary, and would introduce unnecessary complexity into the Sex Discrimination Act. None of the four Australian jurisdictions that already protect LGBT students against discrimination (Queensland, Tasmania, the ACT and the Northern Territory)[ix] include similar provisions in their anti-discrimination laws.

 

Most importantly, the Morrison Liberal-National Government’s proposed amendments fundamentally undermine the purpose of the legislation, by allowing religious schools to continue to discriminate against LGBT students just under a different name.

 

You should call for the Parliament to reject all of the Government’s proposed amendments to the Bill.

 

**********

 

Every student should be able to learn in a safe and inclusive environment, free from discrimination on the basis of their sexual orientation or gender identity.

 

Every teacher and staff member should be judged on their ability to perform their role, not according to who they love or how they identify.

 

Parliament has the opportunity to make both a reality in 2019. But, as with so many law reforms before, they won’t act unless we make them.

 

So, it’s time to get writing.

 

there's no place for discrimination in the classroom-9

 

Footnotes:

[i] The Bill repeals subsection 38(3) of the Sex Discrimination Act which specifically allows religious schools to discriminate against LGBT students, as well as limiting the general religious exception in subsection 37(1)(d) by adding a new subsection 37(3):

‘Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of education; and

(b) the act or practice is not connected with the employment of persons to provide that education.’

[ii] The Greens amendments repeal subsections 38(1) and 38(2) of the Sex Discrimination Act that specifically allow religious schools to discriminate against LGBT teachers and other staff, and contractors, respectively.

It also amends the proposed new subsection 37(3) so that it removes the ability of religious schools to discriminate both in terms of service provision (ie students) and employment.

[iii] Subsection 351(2) of the Fair Work Act 2009 (Cth).

[iv] Subsection 772(2) of the Fair Work Act 2009 (Cth).

[v] For more on this subject, see Unfairness in the Fair Work Act.

[vi] The Government’s amendments remove proposed new subsection 37(3) of the Sex Discrimination Act 1984 (Cth) in Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that limits the operation of the general religious exception in section 37(1)(d) of that Act. Therefore, even if subsection 38(3) is repealed, religious schools would still be able to rely on subsection 37(1)(d) to discriminate against LGBT students.

[vii] The proposed amendment reads as follows:

‘7F Educational institutions established for religious purposes

(1) Nothing in this Act renders it unlawful to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.

(2) In this section:

Teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.’

[viii] See amendments KQ 148, KQ 150 and KQ 151, here.

[ix] For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

Unfairness in the Fair Work Act

This article is the first in a planned series looking at some of the outstanding issues that must be addressed in order to achieve genuine equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Australia.

 

These posts are not proposed in any order of priority, but will hopefully cover many of the barriers that remain, both big and small, as well as challenges that affect often-marginalised groups within the LGBTI community.

 

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

 

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

 

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

 

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

 

For example, sub-section 351(1) provides that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

 

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

 

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

 

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people; and
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

There is literally no requirement in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

 

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

 

**********

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

27 May 2018

 

Dear Prime Minister

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

 

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

 

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

 

Sincerely,

Alastair Lawrie

 

 

**********

 

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

 

27 May 2018

 

Dear Minister Cash

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

 

Sincerely,

Alastair Lawrie

 

**********

 

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

 

The Fair Work Act entrenches these loopholes in two ways.

 

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

 

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

 

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

 

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

 

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

 

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

 

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

 

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

 

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

 

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

 

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

 

**********

 

Update 24 October 2018:

 

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

 

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

 

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

 

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

 

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

 

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

 

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

 

**********

 

16 July 2018

 

Dear Alastair

 

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

 

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

 

The Sex Discrimination Act 1984 (the Sex Discrimination Act) is the principle legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.

 

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

 

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

 

Yours sincerely

 

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

 

Unknown

Will Scott Morrison’s Government continue to exclude trans, gender diverse and intersex employees from the Fair Work Act?

Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.