Invisibility in the Curriculum

Did you know that the NSW Personal Development, Health and Physical Education K-10 Syllabus does not require schools to teach students what lesbian, gay, bisexual, transgender and intersex mean, or even that they exist?

 

The NSW Education Standards Authority reviewed the PDHPE curriculum in 2017 (see my submission to that consultation here), and released its consultation report and final K-10 syllabus in early 2018.

 

It is now being progressively rolled out in NSW classrooms, with full implementation by the start of the 2020 school year.

 

This is despite the fact the new PDHPE curriculum is entirely unfit for the 21st century, contributing to the ongoing invisibility of lesbian, gay, bisexual, transgender and intersex (LGBTI) content, and therefore of LGBTI students.

 

This can be seen in a number of ways. The first, and perhaps most important, is in its use – or, more accurately, lack of use – of the terms lesbian, gay, bisexual, transgender and intersex themselves.

 

In the 138 pages of the syllabus, these words occur three times each.[i] However, two out of these three appearances are found in the document’s glossary – with a definition of each term, and then as part of the broader definition of LGBTI people.

 

But teachers do not teach the glossary to their students. Instead, they are only required to teach the content for each year stage of the syllabus. And the terms lesbian, gay, bisexual, transgender and intersex can be found only once in the prescribed content, together on page 96:

 

‘investigate community health resources to evaluate how accessible they are for marginalised individuals and groups and propose changes to promote greater inclusiveness and accessibility eg people in rural and remote areas, lesbian, gay, bisexual, transgender and intersex people (LGBTI), people from culturally and linguistically diverse (CALD) backgrounds, people with disability.’

 

The problem with this is that LGBTI comes after ‘for example’ and therefore even referring to LGBTI people in this exercise is, on a prima facie reading, optional.

 

This issue – the status of content that appears after ‘eg’ in the syllabus – was raised, by myself and others, during the consultation process. The answer at the time was that whether this information was taught was at the discretion of the school and/or teacher. This appears to be confirmed in the consultation report, which states on page 18 that:

 

‘The content defines what students are expected to know and do as they work towards syllabus outcomes. Content examples clarify the intended learning. Teachers will make decisions about content regarding the sequence, emphasis and any adjustments required based on the needs, interests, abilities and prior learning of students.’

 

In practice, LGBTI people appear just once in the entire NSW PDHPE K-10 Syllabus, as part of an exercise about marginalised groups and inclusiveness, but schools and/or teachers can choose to remove even this most cursory of references.[ii]

 

This marginalisation, and exclusion, of LGBTI content and students is simply not good enough.

 

Another cause of the curriculum’s problems can be found if we return to the glossary, and inspect the definition of sexuality:

 

‘A central aspect of being human throughout life. It is influenced by an interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors. It is experienced and expressed in thoughts, feelings, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships.’

 

On a philosophical level, this is actually quite an inclusive and even progressive view of the complexity of human sexuality. But on a practical level, the absence of specificity in this definition undermines any obligation for schools and/or teachers to teach about real-world diversity of sexual orientation.

 

This lack of prescription means that, on page 96 – which is the only place in the general syllabus where ‘sexuality’ appears not following an ‘eg’ (and therefore is the only reference that isn’t optional)[iii] – content to ‘explore external influences on sexuality and sexual health behaviours and recognise the impact these can have on their own and others’ health, safety and wellbeing’ does not necessarily include lesbian, gay or bisexual sexualities.

 

It is a similar story in terms of gender,[iv] with the glossary definition (‘Refers to the concepts of male and female as well as the socially constructed expectations about what is acceptable for males and females’) not particularly useful in ensuring students learn about the diversity of gender identities. There also do not appear to be any references to non-binary or gender diverse identities.[v]

 

These definitions of sexuality and gender, and how they are employed throughout the syllabus, could be interpreted by some supportive schools and teachers to include lesbian, gay, bisexual and transgender subject matter. But there is absolutely nothing that ensures schools and/or teachers must teach this content.

 

This erasure, or invisibilisation, of LGBTI people in the NSW PDHPE K-10 Syllabus is nothing short of homophobic, biphobic, transphobic and intersexphobic.

 

Which makes it somewhat ironic then that there are more references to homophobia and transphobia in its content than there are to LGBTI people.

 

On page 77: ‘describe forms of bullying, harassment, abuse, neglect, discrimination and violence and the impact they have on health, safety and wellbeing, eg family and domestic violence, homophobic and transphobic bullying, racism, cyberbullying, discrimination against people with disability.’

 

And on page 88: ‘propose protective strategies for a range of neglect and abuse situations, eg family and domestic violence, bullying, harassment, homophobia, transphobia and vilification.’

 

Although note of course that both times homophobia and transphobia appear after an ‘eg’, meaning whether they are taught in these contexts remains optional (and obviously neither of these sections explicitly refers to biphobia or intersexphobia either).[vi]

 

Another major problem with the new NSW PDHPE K-10 Syllabus is its approach to sexual health.

 

There are only two compulsory references to sexual health in the content of the syllabus, one of which we have already seen (on page 96: ‘explore external influences on sexuality and sexual health behaviours and recognise the impact these can have on their own and others’ health, safety and wellbeing’).

 

The other reference, on page 95, describes ‘identify methods of contraception and evaluate the extent to which safe sexual health practices allow people to take responsibility for managing their own sexual health.’

 

There are two problems with this statement. First, it puts the emphasis on ‘contraception’ when sexual health, and LGBTI sexual health especially, is a much broader concept. Second, it does not specifically mandate that schools and teachers instruct students about sexually transmissible infections (STIs).

 

In fact, quite astoundingly, the only reference to STIs in the general syllabus,[vii] on page 84 (‘identify and plan preventive health practices and behaviours that assist in protection against disease, eg blood-borne viruses, sexually transmissible infections’) makes teaching about them optional. The only time the term HIV even appears in the entire document is in the glossary.[viii]

 

In terms of STI-prevention, it seems the NSW PDHPE syllabus has actually gone backwards from the previous 2003 document, which at least prescribed that students learn about:

 

‘sexual health

-acknowledging and understanding sexual feelings

-expectations of males and females

-rights and responsibilities in sexual relationships

-sexually transmitted infections, blood-borne viruses and HIV/AIDS’ as well as to

‘identify behaviours that assist in preventing STIs, BBVs and HIV/AIDS and explore the interrelationship with drug use.’[ix]

 

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The aim of the PDHPE K-10 Syllabus is explained on page 12 of the document:

 

‘The study of PDHPE in K-10 aims to enable students to develop the knowledge, understanding, skills, values and attitudes required to lead and promote healthy, safe and active lives.’

 

Unfortunately, the more than 100 pages of the new syllabus which follow that statement make clear that it does not, and cannot, promote healthy, safe and active lives for lesbian, gay, bisexual, transgender and intersex students. After all, it is impossible for students to learn everything they need to be safe when they cannot see themselves in the curriculum.

 

This document represents a complete derogation of duty by the NSW Education Standards Authority, and Education Minister Rob Stokes and the Berejiklian Liberal-National that have overseen them.

 

They have also failed in their duty to keep all students safe, LGBTI and non-LGBTI alike, given the paucity of sexual health information, and specific content around sexually transmissible infections, in the syllabus.

 

To some extent it is perhaps a little unfair to single out NSW for these failures, because they are not alone in responsibility for them.

 

As this author has previously written, the national Health and Physical Education curriculum (which provides the framework for the NSW syllabus) developed earlier this decade by the Australian Curriculum, Assessment and Reporting Authority (ACARA), also abjectly fails to take the needs of LGBTI students seriously.

 

Despite repeated calls for him to intervene, then-Commonwealth Education Minister Christopher Pyne refused to take action to make LGBTI-inclusive content a priority either.

 

Ensuring that all teachers, in all schools, provide health and physical education content that is inclusive of all students and their needs has been placed in the ‘too hard basket’ by educational authorities, and Ministers, at multiple levels of government over multiple years.

 

It seems they would prefer to pretend LGBTI students do not exist rather than to take on the influence of religious schools and others who see anything that promotes the view that LGBTI people are part of the natural, beautiful diversity of humanity as some sort of ‘radical agenda’.

 

In this respect, the exclusion of LGBTI content from the NSW PDHPE K-10 Syllabus shares a lot in common with the current debate about the exceptions to anti-discrimination law that allow religious schools to discriminate against LGBT students, something the NSW Government has also ruled out fixing.

 

As with that issue, the losers out of the new PDHPE curriculum are the lesbian, gay, bisexual, transgender and intersex kids who have the right to learn about themselves, and to receive the information they need to keep themselves safe, but who are instead being made to feel invisible.

 

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NSW Education Minister Rob Stokes has overseen the development of a PDHPE K-10 Syllabus that is almost completely silent on LGBTI issues.

 

Footnotes:

[i] The term bisexual actually appears four times, with an additional appearance in the glossary in the definition of ‘same-sex attracted’, alongside ‘homosexual’ in its only appearance.

[ii] This interpretation – that teaching the examples which are included in the content is optional – is supported by page 24 of the consultation report, which states: ‘The content is presented to be inclusive and provide the flexibility for delivery based on the context and the ethos of schools. Schools will make decisions about the scope and range of examples to illustrate the diversity of groups in Australian society.’

[iii] There is a separate reference to ‘sexuality’ that is not optional on page 119 in the Life Skills section, for students with special needs, although it does not specifically refer to diversity of sexual orientations.

[iv] The definition of sex on page 135, described as ‘The biological characteristics that define humans as female or male. While these sets of biological characteristics are not mutually exclusive, as there are individuals who possess both, they tend to differentiate humans as males and females’, also does not ensure students learn about variations of sex characteristics.

[v] The definition of transgender or trans on page 137 states ‘A general term for a person whose gender is different to their sex at birth’.

[vi] As an aside, it must surely be difficult to teach students about homophobia and transphobia when the syllabus doesn’t require instruction about the terms lesbian, gay, bisexual, transgender and intersex in the first place.

[vii] At a minimum the Life Skills content for students with special needs makes teaching about sexually transmissible infections mandatory (on page 119: ‘recognise issues of safety in relation to sexual relationships, including contraception, sexually transmissible infections’).

[viii] In the glossary definition of sexually transmissible infections: ‘Any infection that can be passed from one person to another during sexual activity. Sexually transmissible infections include chlamydia, herpes, gonorrhea, syphilis, genital herpes, scabies, pubic lice, hepatitis and HIV.’

[ix] On page 27 of the 2003 PDHPE 7-10 Syllabus, here.

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

 

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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.

 

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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.