The Right to Learn

The right to education is one of the most fundamental of all human rights.

 

This is both because education has incredible intrinsic value, and because of the significant consequences it can have on an individual’s life outcomes, from employment to health, housing and justice, as well as the ability to fully participate in society.

 

The community also has a collective interest in ensuring that all of its members are able to access the right to learn. Why then does Australia allow ongoing inequality in the enjoyment of this important right?

 

I could be talking here about the gross disparity in educational outcomes for Indigenous Australians compared to their non-Indigenous counterparts (with the latest Closing the Gap report showing that Governments are not on track to meet commitments for school attendance, and literacy and numeracy).

 

I could also be talking about the completely disproportionate levels of funding provided by the Commonwealth to private schools over public schools, with ACARA estimating that the Commonwealth Government allocated $8,053 for every private school student compared to just $2,645 per public school student in 2016-17. (Apparently some students are worth more than others.)

 

Instead, for the purposes of this article, I will focus on the fact that cisgender heterosexual students are better able to exercise their right to learn than lesbian, gay, bisexual and transgender (LGBT) students.

 

This is because cisgender heterosexual students in Australia are free to enjoy the right to education without fear of discrimination simply on the basis of these attributes. Unfortunately, the same is not true for far too many LGBT students around the country.

 

That is because the anti-discrimination laws of several Australian jurisdictions allow religious schools to lawfully discriminate against students on the basis of their sexual orientation and gender identity. This includes:

 

The Commonwealth Sex Discrimination Act 1984

 

The NSW Anti-Discrimination Act 1977 (which in fact allows all private schools and colleges to discriminate on the basis of homosexuality, and transgender, even where the school is not religious)

 

The Victorian Equal Opportunity Act 2010

 

The Western Australian Equality Opportunity Act 1984, and

 

The South Australian Equal Opportunity Act 1984 (although for South Australia the legal situation is not entirely certain).

 

On the other hand, LGBT students are legally protected against discrimination at religious schools in Queensland, Tasmania, the ACT and the Northern Territory [for a complete summary of the situation nationally see: Back to School, Back to Discrimination for LGBT Students and Teachers].

 

However, we should not allow this conversation to be dominated by dry legal analysis, when it is the discrimination these laws permit that we should highlight.

 

For example, these were just some of the responses to my 2017 survey looking at The State of Homophobia, Biphobia and Transphobia in Australia:

 

“I was given detention and threatened with suspension for revealing I was attracted to girls at a Christian high school. I was forced to endure hands-on prayer to rid me of the homosexual demons.”

 

“I was at a Christian private school in north Sydney, we had lessons in religion that focused on why being gay is wrong and how you can change.”

 

“My friend goes to a Catholic school and is bisexual. Her music teacher gives her shit about being bisexual and says that she is sinning and she will be going to hell.”

 

I also know from bitter personal experience just how toxic these environments can be, having (barely) survived five years at a religious boarding school in Queensland in the early 1990s.

 

As these accounts demonstrate, the discrimination LGBT students endure at the hands of religious schools concerns far more than simply admission, or expulsion – instead, it is more insidious, and effects every moment of every school day.

 

The fact this prejudice is legally allowed in several Australian jurisdictions is almost unbelievable – and totally unacceptable.

 

Students should be focused on studying for their exams, not studying how to conceal their sexual orientation or gender identity.

 

Students should be worrying about whether the person they ask to take to the formal says yes, not worrying that they will be suspended because their date is the same gender they are.

 

Students should be doing what most teenagers do – complaining about their school uniform – not fearing punishment for wearing the uniform that matches their gender identity.

 

Students should be learning what they need to stay safe in their health and physical education, and sex-ed, classes, not being made to feel invisible and forced to pick up bits and pieces from far less reliable sources.

 

Students who experience homophobic, biphobic or transphobic bullying should be able to have confidence that their school will be on their side, not wondering whether they will be the ones disciplined instead simply because they are LGBT.

 

Students should be thinking about what they would like to do after they finish their education, not contemplating whether they will even survive it.

 

Above all, students should be given the gift of curiosity about the world around them, not taught that the world hates them because of who they are.

 

These are just some of the ways in which lesbian, gay, bisexual and transgender students are currently denied the same right to learn that their cisgender heterosexual equivalents enjoy.

 

It is a situation that has been created by the actions of politicians – and has been allowed to persist because of their inaction.

 

That includes Prime Minister Scott Morrison’s broken promise, made in October last year, to protect LGBT students in religious schools against discrimination by amending the Sex Discrimination Act before the end of 2018.

 

Instead, we now have an Australian Law Reform Commission inquiry into religious exceptions that won’t report until April 2020, and a re-elected Liberal-National Government that likely won’t do anything until the second half of next year (at the earliest).

 

This is simply not good enough. We must remind them of that fact every single day until they act – because LGBT students will be discriminated against every single day until they do.

 

We must also pressure the state governments of NSW, Victoria, Western Australia and South Australia to fix their own broken laws. There is no possible excuse any of them could proffer that would justify allowing this mistreatment to continue.

 

Because reading is fundamental, as is writing, arithmetic, and all of the other essential skills that are imparted by teachers today. And all students deserve access to them, irrespective of who they are.

 

Education is a human right that must be provided to everyone equally, without discrimination on the basis of sexual orientation or gender identity. That currently isn’t the case in Australia. It’s something we must change for the sake of LGBT students now, and for the generations yet to come.

 

The right to learn

All students have an equal right to education, including LGBT students.

What Happens Now for LGBTI Rights?

It is two weeks on from the Federal election, in which the Liberal-National Coalition was surprisingly (some might say shockingly) re-elected. It was a disappointing result from an LGBTI rights perspective, given Labor had adopted the most progressive major-party platform on LGBTI issues in history.

 

The Morrison Government’s position on a range of topics that affect our community is a lot less clear. Now that the dust has settled after the May 18 poll, what does the future hold for LGBTI rights in Australia?

 

  1. Threat

 

The most immediate issue that confronts the lesbian, gay, bisexual, transgender and intersex community is the potential threat of a Religious Discrimination Bill.

 

I write ‘potential’ because it remains unclear exactly what type of legislation the Government is proposing to implement its commitment arising from the Ruddock Religious Freedom Review.

 

On one hand, it could be a Religious Anti-Discrimination Bill, which would add religious belief, including lack of belief, as a protected attribute to Commonwealth anti-discrimination law. This would be welcome, given religious minorities in particular should be protected against discrimination simply because of who they are (something LGBTI Australians have much empathy for).

 

Indeed, that is what was promised by Attorney-General Christian Porter, in his joint press conference with Prime Minister Morrison in December 2018, when they announced the Government’s response to the Ruddock Review:

 

“The architecture for discrimination legislation is well-known, it’s not overly complicated. An attribute is defined – such as age or race or sex or disability or, in this case, the adherence to a religion or the right to not adhere to a religion – and then certain prohibitions are placed on people in terms of their treatment of other Australians based on that attribute. So you are protected from discrimination because of that attribute and then there are certain exemptions drafted as is appropriate. I don’t think that that would be a very contentious bill, necessarily, it follows a very standard architecture. But what the Ruddock Report said, is that there is a need for such a bill.

 

“I would put it to you all this way. In Australia at the moment, if you’re invited to a function at Parliament and at entry to the room of that function, you were denied entry because of the fact that you had a disability or because of your race, or because of your age, or because of your sex, that would be unlawful. But if you were turned away because of your religion, that would not be unlawful in Australia. So this, if you like, is the fifth and final pillar of an overarching architecture that prevents discrimination for Australians, directed to Australians, based on attributes which should never be the basis for discrimination.”

 

On the other hand, the Government could instead introduce a Religion Pro-Discrimination Bill, which further entrenches the special privileges of religious organisations to discriminate against others, including (but not limited to – see below) LGBTI Australians.

 

This discriminatory type of legislation was this week publicly-supported by Government MPs Barnaby Joyce and Concetta Fierravanti-Wells (‘Folau’s Law: Coalition MPs push for bolder action in a ‘new dawn’ for religious freedom, Sydney Morning Herald, 29 May 2019). It is also being advocated for by religious fundamentalist groups like the Australian Christian Lobby, while backed by a campaign from The Australian newspaper.

 

A Religious Pro-Discrimination Bill would present the greatest threat to LGBTI rights in Australia since criminalisation. It is entirely natural for us to feel threatened by this possible development. Indeed, the Government has created the vacuum allowing this fear to arise, given it would not reveal the contents of its proposal before the election (despite Porter saying in December 2018 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”).

 

Therefore, while it was encouraging that Porter pushed back on the calls from his colleagues (Attorney-General Christian Porter pushes back on ‘Folau’s law’ idea, Sydney Morning Herald, 30 May 2019), we must prepare for either possibility, a Religious Anti-Discrimination Bill or a Religious Pro-Discrimination Bill.

 

And we must do so as a matter of urgency, with Porter indicating that he wants to introduce the legislation – whichever it is – when Parliament resumes in July.

 

  1. Uncertainty

 

While it is almost certain the Morrison Government will proceed with a Religious Discrimination Bill (of some kind) in the near-term, the future for LGBT students in religious schools is far less clear.

 

Despite the Prime Minister himself promising to protect LGBT students against discrimination before the end of 2018, he obviously failed to do so. Instead, the day before the election was called, Attorney-General Porter referred the issue of religious exceptions to the Australian Law Reform Commission for review.

 

At this stage, “[t]he ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019.” The final report is due by 10 April 2020 (for more details, see the ALRC website).

 

The LGBTI community must be heavily involved in this process, to ensure that our interests are appropriately considered at every step. This includes advocating for the full removal of the ability of religious schools to discriminate against LGBT students under the Sex Discrimination Act 1984 (Cth), rather than allowing such discrimination to continue just under a different name. And we must engage politically (see below) to pressure the Government to finally fulfil its commitment to protect LGBT kids.

 

Unfortunately, the election result makes the removal of similar discrimination against LGBT teachers that much more difficult (although not impossible). Ditto for abolishing the exceptions that allow religious organisations to lawfully discriminate against LGBT Australians in employment generally, and in the provision of services.

 

But that doesn’t mean we give up. It just means we fight harder. Because LGBTI Australians will not truly be equal until we have the right to learn, the freedom to earn and the ability to access services without fear of discrimination on the basis of our sexual orientation, gender identity or sex characteristics.

 

  1. Targets

 

As after any election, the personnel in Federal parliament have changed (even if perhaps not as much as many LGBTI Australians would have liked). This means we must adapt the targets of our advocacy regarding the above two issues.

 

In addition to lobbying (where possible) Prime Minister Morrison and Attorney-General Porter, we should also focus on the growing ‘rainbow’ group within the Liberal Party, with lesbian Angie Bell elected to represent Moncrieff in the House of Representatives, joining Trent Zimmerman, Trevor Evans, Tim Wilson and Senator Dean Smith, plus long-term LGBTI ally Warren Entsch.

 

The likely composition of the new Senate also means that returning Tasmanian Senator Jacqui Lambie now wields significant power, together with the two Centre Alliance Senators from South Australia, Rex Patrick and Stirling Griff. It is not an exaggeration to say that these three Senators will hold our collective fate in their hands on a large number of Bills.

 

Finally, following Labor’s election loss, and the election of new Opposition Leader Anthony Albanese, the ALP’s positions on all issues, including LGBTI issues, is now up for grabs. We will need to make sure that they do not back-track on any of the positive positions which they took to the election, including the full removal of discrimination against LGBT students and teachers. In this push, we should also engage with Rainbow Labow MPs, including Penny Wong, Louise Pratt, Julian Hill and the newly-elected Queensland Senator Nita Green.

 

[I have deliberately not mentioned the Australian Greens here, including bisexual Victorian Senator Janet Rice, because their support on LGBTI issues can usually be relied upon].

 

Lambie Griff Patrick

Senators Jacqui Lambie, Stirling Griff and Rex Patrick will play a significant role in determining what LGBTI law reforms can be achieved – and whether a Religious Pro-Discrimination Bill can be defeated.

 

  1. Allies

 

One of the main lessons of the marriage equality campaign was the vital role of allies in achieving progress on LGBTI issues. This is equally important in terms of the push to protect LGBT students and teachers against discrimination and – if necessary – to fight against a Religious Pro-Discrimination Bill.

 

We have seen that the vast majority of Australians are already onside when it comes to protecting LGBT students against discrimination, with the immense public backlash against these exceptions when the Ruddock Review was leaked in October 2018 (and which prompted Morrison’s promise in the first place).

 

With regards to protecting LGBT teachers, we must work better together with education unions (including the Australian Education Union, and Independent Education Union). The same applies to building our relationship with the ACTU, and union movement more broadly, to remove all religious exceptions from employment law, including the Fair Work Act 2009 (Cth).

 

Thinking about the potential Religious Pro-Discrimination Bill, the legislation itself presents us with natural allies – because it is not just LGBTI Australians who would be subjected to discrimination as a result.

 

A Religious Pro-Discrimination Bill could also increase discrimination against women, especially in relation to their marital or relationship status, and their ability to access reproductive health services. Unmarried/single mothers are at particular risk (alongside divorced people generally). It’s time to build bridges between LGBTI and women’s organisations to respond to this common threat.

 

Finally, perhaps the most important allies we have in this struggle are good people of faith. We simply cannot afford to let this issue be defined as ‘god versus gays’, especially because the majority of religious people support the equality of their fellow citizens – as demonstrated through the same-sex marriage postal survey.

 

Instead, our enemies are religious fundamentalist groups, like the ACL and some established churches (the formal organisations – not the followers), and any individuals who are acting in bad faith to impose their religious beliefs on others, including demanding the ability to lawfully discriminate against LGBTI people. They are who we are fighting against, not ordinary Australians.

 

This means that throughout this debate, no matter how ugly it may become, we should strive to be respectful of people’s faith, or lack of faith, in the same way we are fighting for the right to be treated fairly, with decency and respect (some might even say at this point ‘Do unto others…’).

 

  1. Opportunities

 

It may seem strange, given the current political environment in which we are operating and the threat of a Religious Pro-Discrimination Bill, to talk about opportunities for progress on LGBTI rights but there are several.

 

The first is for action to (finally) be taken to stop coercive and invasive surgeries and other medical interventions on intersex children. These human rights violations continue unabated, despite a bipartisan 2013 Senate Inquiry recommending that such surgeries and/or treatments be stopped.

 

In 2017-18, the Australian Human Rights Commission initiated a new project focusing on ‘Protecting the human rights of people born with variations in sex characteristics in the context of medical interventions’, with a final report expected shortly.

 

This will be an opportunity for non-intersex LGBT individuals and for LGBT/I organisations to support the work of groups like Intersex Human Rights Australia and their campaign to end these practices once and for all (noting that there is no right-wing, or left-wing, justification for such interventions, so there is no political rationale for the Government not to intervene).

 

The second opportunity is on ex-gay or ex-trans therapy, with the Morrison Liberal-National Government providing the following response to Equality Australia’s pre-election survey:

 

“As the Prime Minister has said, the Morrison Government does not support LGBTIQ+ conversion therapy. The use of conversion therapy has long been discredited with no scientific or medical evidence to support its use.

 

“The Morrison Government remains committed to addressing the mental health of all Australians, including the LGBTI community, and this also relates to opposition to gay conversion therapy. The Government will work with the states, which have legal responsibility in this area, to ensure such practices are not supported or occurring [emphasis added].

 

We should take them at their word and seek to make urgent progress to end this psychological torture.

 

The other main opportunities lie at state and territory level. This includes the ongoing campaign to provide trans and gender diverse people with better access to appropriate identity documentation.

 

With Tasmania recently passing best practice laws that allow individuals to update their birth certificate on the basis of self-identification – without the need for surgery, other treatment or medical approval – we must pressure the seven other jurisdictions to quickly follow suit.

 

It also includes working towards reform of state and territory anti-discrimination laws. Because, while the Sex Discrimination Act 1984 allows discrimination against LGBT students and teachers under Commonwealth law, some states and territories have adopted preferable provisions.

 

For example, last year the ACT amended its Discrimination Act 1991 to protect both LGBT students and teachers in religious schools against discrimination. Queensland and the Northern Territory already protected LGBT students against discrimination, while once again Tasmania has best practice laws in this area (their Anti-Discrimination Act 1998 only allows religious organisations to discriminate on the basis of religious belief, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics).

 

Given the vulnerability of LGBT kids in particular, there is no reason why we should not pressure state and territory governments to amend their own laws, even before the ALRC completes its report.

 

  1. Certainty

 

I have written about the threats we potentially face, as well as some of the uncertainty that now confronts us. But there is one thing that is absolutely sure: nothing will get better unless we act to make it better.

 

The Government won’t make changes on our behalf out of the kindness of its heart. Just like with countless LGBTI law reforms in the past, the only way to improve our situation – especially for vulnerable members of our community – is to get involved and collectively force them to do it.

 

This will be especially important if the Morrison Government decides to introduce a Religious Pro-Discrimination Bill. We will need all hands on deck, including people who (completely understandably) needed to take time away after the horrific experience that was the same-sex marriage postal survey.

 

And so I would conclude by encouraging you to join one or more of the many LGBTI advocacy organisations that will be fighting on our behalf in the coming months and years. This includes:

 

NSW Gay & Lesbian Rights Lobby

 

Victorian Gay & Lesbian Rights Lobby

 

Equality Tasmania

 

Transgender Victoria

 

A Gender Agenda

 

Intersex Human Rights Australia

 

Just Equal

 

Rainbow Families

 

Rainbow Families Victoria

 

PFLAG Australia

 

Equality Australia

 

(as well as plenty of others I have inadvertently omitted, including in the other states and territories).

 

You can also stay up to date with latest developments by following LGBTI Rights Australia on Facebook.

 

Finally, I will continue writing regular articles about the campaign to protect LGBT students and teachers in religious schools against discrimination, as well as key developments surrounding the Religious Anti- or Pro-Discrimination Bill. To receive these posts direct to your email, please sign up via the right-hand scroll bar on the desktop version of this blog, or near the bottom of the page on mobile. Thanks.

Scott Morrison is Unfit to be Prime Minister

Scott Morrison became Australia’s 30th Prime Minister on 24 August 2018. In my opinion, based on his (mis)treatment of the LGBTI community, he is unfit to hold that esteemed position. Here’s why:

 

  1. As Treasurer, Morrison allocated $160million to the same-sex marriage plebiscite

 

In his first Budget as Treasurer in May 2016, Morrison allocated $160million to the unnecessary, harmful and divisive plebiscite on same-sex marriage. This is despite the fact Parliament could have voted on this issue for free, and the money better spent on literally almost anything else.

 

  1. As Treasurer, Morrison oversaw $80.5million in spending on the postal survey

 

Despite the Senate rejecting legislation to hold the Turnbull Liberal-National Government’s proposed plebiscite, it decided to hold a postal survey instead. While Finance Minister Matthias Cormann signed the cheque, the money still came from Treasurer Morrison’s Budget. Once again, Parliament could have voted on this issue for nothing – but they chose to throw away $80.5million of our taxes anyway. Liberal and National Party MPs and Senators should be asked to repay it.

 

  1. During the postal survey, Morrison campaigned for a No vote

 

Given his conservative religious background, it is unsurprising Morrison campaigned for people to be denied equality under secular law simply because of their sexual orientation, gender identity or sex characteristics. During the postal survey he said that:

 

“My view on this topic is as important as everyone else’s. That is why we are having a survey on it. My view is, look I am voting no, it is okay to say no and people should know that.”

To some extent, Morrison was entitled to express that opinion. However, it is included here to demonstrate he believed the postal survey was a legitimate process to determine this issue, a context that makes the next two acts substantially more objectionable.

 

  1. Morrison voted for every discriminatory amendment put forward during parliamentary debate on same-sex marriage

 

Following the announcement of the 61.6% Yes vote on 15 November 2017, the Parliament still had to pass legislation to give that result legal effect (thus demonstrating the fundamental wastefulness of the postal survey). During debate of Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Morrison moved amendments to protect organisations and charities that espoused discriminatory beliefs including:

 

  • ‘the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage’, and
  • ‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth.’

 

Thankfully, it was defeated. Morrison also voted for every single other set of amendments seeking to add anti-LGBTI discrimination to the Bill. Perhaps the worst was an amendment to insert two separate definitions of marriage in the Marriage Act 1961 (Cth):

 

‘marriage means:

(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.’

 

Again, this amendment was defeated. But we cannot forget that, despite more than 3-in-5 Australians voting for equality, Morrison voted to entrench separate definitions for marriage in the Act itself. This goes against one of the most important political lessons of the 20th century: separate but equal is never equal.

 

  1. Morrison abstained from voting on the same-sex marriage bill

 

Despite:

  • Allocating $160million to the plebiscite in his Budget
  • Overseeing $80.5million spending on the postal survey
  • Campaigning during the postal survey, and
  • Participating in debate on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017,

Morrison abstained on the final vote on this legislation.

 

As discussed above, he clearly saw the postal survey process as legitimate, but he didn’t see the outcome as legitimate when his side lost. Morrison ultimately refused to implement the will of the people.

 

This was a gross insult to the 7,817,247 Australians who voted Yes, including the 55% of people who voted Yes in his electorate of Cook.

 

Scott Morrison didn’t respect our vote on the postal survey. He doesn’t deserve our vote on 18 May.

 

However, it isn’t just on marriage that Morrison’s words and actions mean he is, in my view, unfit to hold the highest office in the land.

 

  1. As Minister for Immigration, Morrison imprisoned LGBTI people seeking asylum in countries that criminalised them

 

Morrison was Minister for Immigration from September 2013 to December 2014. During this time, he imprisoned people seeking asylum on both Nauru and Manus Island, Papua New Guinea. This included lesbian, gay, bisexual, transgender and intersex refugees, despite the fact both Nauru and PNG criminalised homosexuality. This policy effectively continued their persecution – and he continued to do so even after this issue was raised with him.

 

  1. As Treasurer, Morrison axed funding for the Safe Schools program

 

Morrison as Treasurer signed off on the axing of an effective, evidence-based anti-bullying program that cost just $8million over three years but provided significant benefits to LGBTI students. This Budget cut was ideological not financial – elsewhere he found room for the $80.5million postal survey, as well as more than $60million per year for the National School Chaplaincy Program.

 

  1. As Prime Minister, Morrison tweeted against programs supporting trans children

 

On 5 September 2018 – less than a fortnight into the job – Morrison published his infamous ‘gender whisperers’ tweet:

 

Morrison gender whisperers copy

 

His ‘let kids be kids’ message in practice said that children should be protected from the very idea that trans and gender diverse people exist. Worse, Morrison was arguing trans and gender diverse children, who are some of the most vulnerable members of the Australian community, should be left to struggle in isolation, without any support from their schools.

 

If there is a better example of ‘un-Prime Ministerial’ behaviour, I am yet to see it.

 

  1. As Prime Minister, Morrison refused to condemn gay conversion therapy

 

In the same week, Morrison was asked about his policy on anti-gay and anti-trans conversion therapy, a practice that is nothing less than the psychological torture of people on the basis of their sexual orientation or gender identity. His response:

 

“I think people should make their own choices about their own lives… That’s always been my view. I’ve never been involved in anything like that, I’ve never supported anything like that. So mate, it’s just not an issue for me, and I’m not planning to get engaged in the issue.”

 

He has refused to take any action on this issue in the seven months since. Once again, Morrison has displayed his lack of concern for people whose life experiences are different to his own.

 

Indeed, on all four of these issues – LGBTI people seeking asylum, LGBTI students, trans and gender diverse children and survivors of anti-gay and anti-trans conversion therapy – he has shown that he basically does not care about some of the most disadvantaged people in society.

 

If Scott Morrison does not have empathy for others, he should not receive the votes of others.

 

  1. As Prime Minister, Morrison broke his promise to protect LGBT students against discrimination

 

In response to the leaking of recommendations from the Ruddock Religious Freedom Review in October 2018, Morrison promised he would protect lesbian, gay, bisexual and transgender students against discrimination by religious schools before the end of the year.

 

That deadline came and went, and his Government never even introduced a Bill to try to give effect to this commitment. The 45th Parliament has now expired, with LGBT students just as exposed to mistreatment and abuse as they were before his hollow words.

 

In fact, Morrison delayed any action on this issue by referring the subject of ‘religious exceptions’ to the Australian Law Reform Commission for review by 10 April 2020, meaning LGBT students will not be protected until the start of the 2021 school year (at the earliest). This is an egregious breach of faith of the Australian people, who expected him to back his promise with action.

 

  1. Morrison has no policies on LGBTI issues

 

Less than four weeks before the election and it appears the Liberal Party has no policies on LGBTI issues. Try searching the Liberal Party’s website. There’s nothing there. Nada. Zero. Zilch.

 

In the first 11 days of the election campaign the only comments I can find Morrison has made on LGBTI issues is the same, re-hashed promise to protect LGBT students against discrimination – you know, the promise he has already broken once. It’s clear he does not have a plan for lesbian, gay, bisexual, transgender and intersex Australians.

 

If Scott Morrison won’t govern for all Australians, he shouldn’t govern any Australians.

 

  1. Morrison won’t tell us what’s in his Religious Discrimination Bill

 

The other major outcomes of the Religious Freedom Review were a proposal for a Religious Discrimination Bill (which was recommended by Ruddock) and a promise to appoint a Religious Freedom Commissioner (which was not recommended).

 

These represent the biggest changes to Commonwealth anti-discrimination law since the introduction of the Age Discrimination Act 2004.

 

However, despite having the Religious Freedom Review for 11 months, and comments in December by Attorney-General Christian Porter about “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”, we are yet to see any details of this legislation.

 

Indeed, the day before the election was called, it was reported that:

 

“Attorney-General Christian Porter told The Australian the religious discrimination bill was “well advanced” but “not at the point of readiness”. “It remains clear government policy and, if re-elected, one of the first orders of business would be to pursue that legislation” (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).

 

This is particularly worrying for LGBTI Australians because, while protecting religious minorities against discrimination would be welcome, a Religious Discrimination Bill could also include new rights for religious organisations to discriminate against LGBTI people (the same kinds of amendments that Morrison himself voted for during the same-sex marriage debate).

 

The reality is we are being deliberately kept in the dark about legislation that could have significant impacts on Australian society, something the Government itself says will be implemented shortly after the election. That, in my opinion, is treating voters with contempt.

 

Updated 13 May 2019:

 

13. Morrison refused to disendorse a candidate who linked same-sex marriage to paedophilia

 

Early in the election campaign it was reported that the Liberal candidate for Scullin, Gurpal Singh, had linked same-sex marriage to paedophilia in an interview during the same-sex marriage postal survey. Despite a significant public backlash, and the disendorsement of other candidates for equally-discriminatory comments, Morrison steadfastly refused to disendorse Mr Singh for more than two weeks. Singh was only forced to resign following publication of unrelated (and despicable) comments about rape. The entire saga clearly demonstrated that for Morrison – who had repeatedly used the phrase ‘the standard you walk past is the standard you accept’ – extreme homophobia is entirely acceptable.

 

**********

 

Of course, there are other, non-LGBTI issues that cast serious doubt on Scott Morrison’s suitability for the position of Prime Minister (other actions from his time as Minister for Immigration, and bringing a lump of coal into Parliament, spring immediately to mind).

 

But, even ignoring everything else, on the basis of his (mis)treatment of LGBTI people alone, in my view it is clear Morrison is unfit to be the leader of this country. It’s now up to the rest of Australia whether they see fit to keep him there on 18 May.

 

Updated 24 May 2019:

 

To the shock, and disappointment, of many LGBTI people, the majority of Australians did indeed see fit to keep Scott Morrison in the top job last Saturday. His surprise victory leaves him with significant personal clout within the Liberal-National Government.

 

How he uses that clout will be crucial in determining whether the re-elected Coalition Government actively seeks to wind back LGBTI rights in Australia, and if so how aggressively it pursues that agenda.

 

The first test will be the Religious Discrimination Bill (or Religious Freedom Bill), likely to be introduced in the second half of 2019. LGBTI Australians must be prepared to do everything in our power to stop this legislation if it expands the rights of religious organisations to discriminate against us. We’ll be watching, and ready to act if necessary.

 

 

Morrison

 

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

 

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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.

 

[Update 11 May 2019: While Labor have reiterated their intention to protect LGBT teachers and other staff, they have still not clarified the scope of any amendments to protect the ‘ethos and values’ of the school. More concerningly, they have indicated they will wait for the ALRC to conduct its inquiry into religious exceptions before protecting LGBT students or teachers. This is unacceptable – students deserve to be protected as quickly as possible, and there is a Bill ready and waiting to be reintroduced. It should be one of the first items of business of a new parliament.]

 

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.

 

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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

 

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.

5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform.

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here

 

Five years ago today, Commonwealth Parliament passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

Almost four decades after the Racial Discrimination Act 1975, and nearly three decades after the passage of the Sex Discrimination Act 1984, lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians finally received protection against discrimination under Commonwealth law.

 

While the SDA amendments were ground-breaking at the time, no piece of legislation is ever perfect. Five years into its operation, here are five areas in which I believe this Act can and should be improved.

 

  1. Update ‘intersex status’ to ‘sex characteristics’

 

With the passage of the 2013 amendments to the Sex Discrimination Act, Australia became one of the first jurisdictions in the world to explicitly protect people with intersex variations against discrimination.

 

This is because it added ‘intersex status’ as a stand-alone protected attribute, which was defined under section 4 as:

 

‘means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

 

However, since then intersex advocates have expressed concerns about this wording, including that it may not adequately protect all intersex people (for example, potentially conflating or confusing issues of biology and identity).

 

For these reasons, in the landmark March 2017 Darlington Statement, OII Australia (now Intersex Human Rights Australia) and other intersex representatives ‘call[ed] for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics’ [emphasis added].

 

Sex characteristics was then defined in the Yogyakarta Plus 10 Principles ‘as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Australia helped lead the world in including ‘intersex status’ in the Sex Discrimination Act. Five years later we should take action again by updating this attribute to refer to ‘sex characteristics’ instead.

 

  1. Protect LGBT students against discrimination

 

A positive feature of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was the aged care ‘carve-out’ from the otherwise overly-generous (see below) exceptions provided to religious organisations.

 

Sub-section 37(2) of the amended Sex Discrimination Act provides that the general exception ‘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 aged care.’

 

In effect, religious-operated aged care facilities that receive public funding are not permitted to discriminate against LGBT people accessing those services (although unfortunately they can still discriminate against LGBT employees).

 

Five years since this clause was passed, and there is exactly zero evidence that it has had any negative impact on the supposed ‘religious freedom’ of these institutions – and plenty of evidence that it has helped to protect older lesbian, gay, bisexual and transgender people from unjustifiable discrimination.

 

Now, it is time to ensure that an equivalent provision is introduced to protect people at the other end of the age spectrum from similar mistreatment: younger LGBT people who are students at government-funded religious schools and colleges.

 

These students are just as vulnerable as older LGBT people accessing aged care services, and just as with the ‘carve-out’ in sub-section 37(2), there is no reason why taxpayer money should be used to discriminate against them on the basis of their sexual orientation or gender identity.

 

It is time to amend the Sex Discrimination Act to remove the special privilege enjoyed by publicly-funded religious educational institutions to discriminate against LGBT students. This could be achieved by adding a similar carve-out in sub-section 37(2), and repealing sub-section 38(3), which also allows discrimination by religious schools against LGBT students.

 

  1. Limit overly-generous general religious exceptions

 

While I believe the exceptions allowing discrimination against LGBT students deserve special attention, it is also important to reform the broader religious exceptions contained in the Sex Discrimination Act.

 

Sub-section 37(1) currently provides that none of the Act’s LGBT discrimination protections apply to:

(a) ‘the ordination or appointment of priests, ministers of religion or members of any religious order;

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.’

 

[Section 38 provides a similarly-worded exception in relation to education, with sub-section 38(1) allowing religious schools to discriminate against teachers and other employees, and sub-section 38(2) permitting discrimination against contract workers.]

 

These clauses, and especially s37(1)(d), provide religious organisations with carte blanche to discriminate against LGBT Australians on the basis of their sexual orientation or gender identity. Such discrimination often has very little to do with sincerely-held religious beliefs, but is instead simply homophobia, biphobia or transphobia dressed up in a cloak of religious-sounding language.

 

I believe this discrimination has no place in 21st century Australia – and suspect most ordinary Australians agree (something that was confirmed in October in the wake of the leaking of the recommendations of the Ruddock Religious Freedom Review).

 

Fortunately, one Australian jurisdiction provides a much better precedent in this area, with legislation that still protects genuine religious freedom without endorsing broader anti-LGBT discrimination.

 

The Tasmanian Anti-Discrimination Act 1998 allows discrimination in certain circumstances in employment (section 51), admission as a student (section 51A) and participation in a religious observance (section 52), but only on the basis of religious belief or affiliation, and not because of sexual orientation or gender identity (or sex, pregnancy, relationship status or other attributes).

 

The Commonwealth Sex Discrimination Act should be amended to adopt the much-preferable Tasmanian approach to religious exceptions, thereby dramatically narrowing the special privileges allowing them to engage in discrimination that would otherwise be unlawful.

 

  1. Introduce protections against anti-LGBTI vilification

 

Currently, only four Australian jurisdictions have anti-vilification laws which protect members of the lesbian, gay, bisexual, transgender and intersex community: NSW, Queensland, Tasmania and the ACT. Of those, Queensland doesn’t cover intersex people, while NSW includes LGBTI people in the new criminal offence of ‘publicly threatening or inciting violence’ but only lesbians, gay men and trans people with binary gender identities can make civil complaints of vilification under the Anti-Discrimination Act 1977.

 

There are still no protections against anti-LGBTI vilification in Victoria, Western Australia, South Australia or the Northern Territory. And there is no LGBTI equivalent of section 18C of the Racial Discrimination Act 1975 under Commonwealth law either.

 

This is a situation that must change. Because homophobic, biphobic, transphobic and intersexphobic vilification is just as serious, and just as damaging, as racial vilification.

 

This was unequivocally demonstrated, and witnessed by the entire country, during last year’s same-sex marriage postal survey, with anti-LGBTI (and especially anti-trans) rhetoric in mainstream media and across society more generally. And while there were temporary, narrowly-defined prohibitions on vilification for the duration of that campaign (which have now expired), the hate-speech against our community that it stirred up continues unabated.

 

For all of these reasons, I believe it is beyond time for the Sex Discrimination Act to be amended to prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

 

  1. Create an LGBTI Commissioner

 

From the Australian Human Rights Commission (AHRC) website:

 

‘The Commission has a President and seven Commissioners:

  • President Emeritus Professor Rosalind Croucher AM
  • Aboriginal and Torres Strait Islander Social Justice Commissioner Ms June Oscar AO
  • Age Discrimination Commissioner The Hon Dr Kay Patterson AO
  • Children’s Commissioner Ms Megan Mitchell
  • Disability Discrimination Commissioner Mr Alastair McEwin
  • Human Rights Commissioner Mr Edward Santow
  • Race Discrimination Commissioner Mr Chin Tan
  • Sex Discrimination Commissioner Ms Kate Jenkins.’

 

Notice who’s missing? Of the major groups protected against discrimination under legislation administered by the AHRC, only one does not have a stand-alone Commissioner of their own: the LGBTI community.

 

Responsibility for LGBTI issues has instead been allocated to the Human Rights Commissioner (both the current office-holder, and his predecessor, Tim Wilson) but it is merely one of a number of different, often competing priorities of their role – sometimes directly so, given their simultaneous responsibility for promoting religious freedom.

 

It is inevitable that, under this organisational structure, LGBTI issues will not be given the same level of attention as those of race, sex, disability and age. The best way to change this is to amend the Sex Discrimination Act to create a full-time Commissioner dedicated to addressing anti-LGBTI discrimination.

 

**********

 

The passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was an important achievement in the long struggle for LGBTI equality in Australia, in my opinion just as significant as the recognition of same-sex de facto relationships in 2008, and the long overdue legalisation of same-sex marriage late last year.

 

But, just five years old, these historic reforms are already showing their inherent limitations. It’s time for Commonwealth parliament to take action to ensure that the Sex Discrimination Act is effective in addressing anti-LGBTI discrimination and vilification. The five reforms suggested above would be a good place to start.

 

julia

Former Prime Minister Julia Gillard passed the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 in the dying days of her leadership.

 

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

 

Back to School, Back to Discrimination for LGBT Students and Teachers

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

 

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

 

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

 

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

 

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Commonwealth

 

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

 

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

 

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

 

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

 

“Section 38

Educational institutions established for religious purposes

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

 

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

 

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

 

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

 

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

 

**********

 

New South Wales

 

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

 

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

 

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

 

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

 

“Section 49ZO Education

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

Victoria

 

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

 

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

 

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

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

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

 

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

 

Religious schools

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

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

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

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

 

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

 

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

 

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

 

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

 

**********

 

Queensland

 

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

 

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

 

Religious bodies

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

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

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

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

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

 

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

 

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

 

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

 

“25 Genuine occupational requirements

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

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

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

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

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

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

(i) during a selection process; or

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

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

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

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

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

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

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

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

 

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

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

 

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

 

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

 

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

 

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

 

**********

 

Western Australia

 

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

 

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

 

Religious bodies

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

 

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

 

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

 

And students:

 

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

 

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

 

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

 

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

 

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

 

**********

 

South Australia

 

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

 

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

 

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

 

Discrimination by educational authorities

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

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

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

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

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

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

(c) by expelling the student; or

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

 

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

 

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

 

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

 

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

 

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Tasmania

 

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

 

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

 

Employment based on religion

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

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

 

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

 

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

 

Admission of person as student based on religion

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

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

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

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

 

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

 

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

 

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

 

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

 

**********

 

Australian Capital Territory

 

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

 

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

 

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

 

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

 

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

 

**********

 

Northern Territory

 

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

 

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

 

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

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

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

 

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

 

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

 

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

 

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

 

**********

 

Summary

 

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

 

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

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

theres-no-place-for-discrimination-in-the-classroom

And there’s no place for discrimination in the school staffroom, either.

 

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Footnotes:

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

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

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

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

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

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

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

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

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

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

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