Submission to Royal Commission into Aged Care

Royal Commission into Aged Care

GPO Box 1151

Adelaide SA 5001

ACRCenquiries@royalcommission.gov.au

 

Monday 25 February 2019

 

Dear Commissioner

 

Submission to Aged Care Royal Commission

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

In this submission I will focus on one policy issue – the ability of religious aged care services to discriminate against lesbian, gay, bisexual and transgender (LGBT) employees – and its impact on people accessing those services, including LGBT individuals and couples.

 

As you are likely aware, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 introduced anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians under Commonwealth law for the first time.

 

This Act, like the majority of pre-existing state and territory laws, provided general exceptions to religious organisations allowing them to discriminate both in service delivery, and employment, including against LGBT people.

 

However, in an important step forward for equality, the new section 37(2)(a)[i] of the Sex Discrimination Act 1984 ‘carved out’ Commonwealth-funded aged care services so that religious organisations that receive public money cannot discriminate against LGBT people accessing those services.

 

This was a welcome recognition both of the importance of aged care services, and of the potential vulnerability of people who require these services, especially older LGBT people many of whom have been subject to a lifetime of homophobic, biphobic and transphobic discrimination.

 

Unfortunately, the same protection was not extended to LGBT employees and other staff in these services (see section 37(2)(b)[ii]).

 

This is wrong in principle for two main reasons.

 

First, whether a person is able to perform their duties as an aged care worker is unrelated to, and independent of, their sexual orientation and/or gender identity.

 

People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.

 

Second, it is completely unacceptable that taxpayers’ money should be spent subsidising such discrimination. The purpose of public funding of aged care services is to ensure older Australians have access to quality services which are able to meet their needs – it is not supposed to pay for religious organisations to impose their anti-LGBT views on the aged care workforce.

 

For both of these reasons, I believe the ‘carve-out’ in the Sex Discrimination Act 1984 which protects LGBT people accessing aged care services should be extended to cover LGBT employees too.

 

The special privilege allowing religious aged care services to discriminate in employment on the basis of sexual orientation and gender identity is wrong in practice as well, and it is here that this discrimination most clearly relates to the Royal Commission’s Terms of Reference.

 

This includes:

 

(a) the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response;

(c) the future challenges and opportunities for delivering accessible, affordable and high quality aged care services in Australia, including:

i. in the context of changing demographics and preferences, in particular people’s desire to remain living at home as they age; and

ii. in remote, rural and regional Australia;

 (d) what the Australian Government, aged care industry, Australian families and the wider community can do to strengthen the system of aged care services to ensure that the services provided are of high quality and safe;

 

The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.

 

This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants,[iii] for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.

 

This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.

 

And this impact will likely exist for as long as the general exception[iv] in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.

 

Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.

 

There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.

 

People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.

 

The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.

 

Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.

 

LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.

 

There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.

 

LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).

 

Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.

 

The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.

 

Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.

 

For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).

 

However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.

 

Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.

 

In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.

 

There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.

 

Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.

 

Recommendation: The Royal Commission into Aged Care should call for amendment to section 37(2) of the Sex Discrimination Act 1984 (Cth) to remove the ability of religious aged care services to discriminate against employees on the basis of their sexual orientation and gender identity.

 

Thank you in advance for taking this submission into consideration as part of the Royal Commission. If you would like further information, please do not hesitate to contact me at the details provided below.

 

Sincerely

Alastair Lawrie

 

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Commonwealth Minister for Aged Care Ken Wyatt.

 

References:

[i] 37(2) provides that “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 Commonwealth-funded aged care; and

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

[ii] See footnote (i), above.

[iii] I am not suggesting that all LGBT applicants are highly-qualified, some will obviously not be (in the same way some cisgender heterosexual applicants will not), but excluding highly-qualified applicants of any background reduces both the number and the depth of qualified applicants to choose from.

[iv] Section 37(1)(d) provides that “Nothing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

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Saving Safe Schools

Safe Schools is, simultaneously, one of the simplest policy issues in Australia, and one of the most complex.

 

Simple, because it is an effective, evidence-based program aimed at reducing bullying of one of the most vulnerable groups in our society: young lesbian, gay, bisexual, transgender and intersex (LGBTI) people. Surely, supporting this group, and lowering the disproportionate rates of social exclusion, and mental health issues, that they experience, should be straightforward?

 

Complex, because – well, have you listened to (most) Liberal and National politicians over the past few years? Did you read The Australian newspaper in 2016? [*Neither is recommended of course, but if you did you would have heard and seen a barrage of criticism of this initiative addressing anti-LGBTI bullying]

 

This little program became the focal point of one of the biggest culture wars in our recent history, such that among right-wing circles even the name Safe Schools has itself become toxic, synonymous with all manner of imagined problems.

 

It is hard to remember that, at the federal level, Safe Schools was initially the epitome of bipartisanship – announced and funded by the then Rudd Labor Government before the 2013 election, before being launched under the Abbott Coalition Government in mid-2014.

 

How did we get from there, to wherever the hell it is we are now? I’m not proposing to rehash that depressing history – instead, I would strongly suggest you read the excellent Quarterly Essay ‘Moral Panic 101: Equality, acceptance and the Safe Schools scandal’ by Benjamin Law.

 

However, I am interested in the why – why did a simple and straight-forward program aimed at reducing homophobia, biphobia, transphobia and intersexphobia in schools provoke such an angry response from so-called conservatives around the country?

 

Part of the explanation can be found in the response of one of the program’s greatest advocates, Victorian Premier Daniel Andrews, to the decision by the then Turnbull Liberal National Government to ‘review’ the program in early 2016. From his Facebook post:

 

“Schools have to be a safe place for every kid – no exceptions.

Teachers have to be given the tools to deal with every situation – no excuses.

And there is absolutely nothing wrong with this effective little program, which achieves the above two aims and nothing more.

But let’s be honest here: I don’t think these extreme Liberals are actually offended by the structure of the program, or the teachers who lead it.

I just think they’re offended by the kids who need it.

They don’t like the fact that some young people might be different.

And I’m sick of it.

I’m sick of Liberal politicians telling our kids that there’s something wrong with them – when there isn’t.

I’m sick of Liberal politicians trying to push us all back, whenever we all take a few steps forward.

Cory Bernadi [sic] says teenagers are too young to know about love and care and acceptance.

Well, I can assure you, Senator: they know a whole lot more than you.”

 

This offence – at the fact LGBTI kids exist – was so great that, even though the independent review found the program to be effective, age-appropriate and consistent with the curriculum, they axed it anyway. The NSW Liberal National Government, and other conservative administrations around the country, quickly followed suit.

 

But while the offence of Liberal politicians that LGBTI kids have the temerity to exist might be part of the explanation for Safes Schools’ axing, it is by no means a complete explanation.

 

One perhaps even more important contributing factor is discussed in Benjamin Law’s Quarterly Essay, in response to the changes by then Education Minister Simon Birmingham that “schools must now obtain the approval of parent bodies to train teachers [in Safe Schools], and before any lessons are taught.”

 

As Paul Thoemke is quoted on page 57/58 in relation to trans children: “This may be the most politically unsavvy thing I can say. But I sometimes think the greatest risk for these kids is their families… Family life can be awful for a homosexual child, too. Youth who come out meet with parental grief, confusion, denial, or rage so hot that, for everyone involved, the prospect of the child eating from dumpsters or sleeping under bridges may be preferable to coexisting with them under the same roof.”

 

This really is the crux of the debate. Some parents are so homophobic, biphobic, transphobic or intersexphobic (often all four) that they would prefer LGBTI children to be in a wooden box rather than sitting at a wooden desk in a safe and supportive classroom. And not ‘just’ their own children, but all LGBTI kids.

 

Of course, the majority of parents do not see this issue in this warped way. They, like the LGBTI community itself, want to see all children have the ability to live their best lives.

 

Indeed, one of the features of this debate is that it is the LGBTI community and its allies who are arguing for the best interests of kids, while our opponents, who have long (falsely) railed against us with the ‘Won’t somebody please think of the children?’ mantra in the name of ‘traditional family values’, that are acting in the interests of intolerant adults.

 

Unfortunately, in 2016 the Turnbull Liberal-National Government listened to the hateful minority, followed by a number of states and territories.

 

As a result, in early 2019, the Safe Schools program is only functional in Victoria, the ACT (called the Safe and Inclusive Schools Initiative), Western Australia (called the Inclusive Education Program) and the Northern Territory.

 

It has been replaced by general, and generic, ‘anti-bullying programs’ in NSW, Tasmania and South Australia (disappointingly the Queensland Labor Government has never fully supported Safe Schools), in part based on the argument that LGBTI kids don’t deserve a special program to specifically promote acceptance of their difference.

 

Law takes apart this view in his Quarterly Essay on page 64, responding to an example about Hindu students from Elisabeth Taylor of the Australian Christian Lobby:

 

“When Taylor tells me this, I’m initially taken by her argument. Why should minorities of any kind have special treatment? Why should queer kids get the attention when others [sic] kids are being bullied too? It takes a while before the obvious presents itself: first, that general anti-bullying measures have existed for decades and haven’t helped queers at school. Second, that Safe Schools doesn’t exists solely for LGBTIQ youth, but also for the countless other Australian kids who are agents – as well as victims – of schoolyard homophobia. Third: Hindu children are born into Hindu families and communities, who affirm their religion, culture and worldview. Lesbian, gay, bisexual, transgender and intersex young people do not have that luxury. Gays are mostly raised in heterosexual families. And if our families and communities don’t accept us, there are consequences. One 2010 national study found that “rates of self harm are higher in [queer] young people who are not supported when they disclose to mother, dad, brother or sister.” If these kids aren’t safe at home or school, where else do they have?”

 

In 2019, we still have Governments at Commonwealth level, and in half the states and territories, that really don’t seem to care about the answer to that question.

 

Who don’t support the right of LGBTI kids simply to be – but instead listen to a vocal minority of bigots who would prefer LGBTI kids not to be. Themselves. Supported. Or Accepted.

 

The question is what we do about it. I would argue the onus is on us, the LGBTI community, our allies, and indeed every Australian who supports diversity, of sexual orientations, gender identities and sex characteristics, to vote against those Governments.

 

Because our kids are counting on us.

 

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Victorian Premier Daniel Andrews has shown the leadership too many of his Commonwealth, state and territory counterparts refuse to.

 

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.