A consultation paper from the Australian Law Reform Commission (ALRC) recommends the removal of exemptions in the Sex Discrimination Act that some Christian schools have relied on for staffing and rules for students. Attorney General Mark Dreyfus is running a Review of Religious Educational Institutions and Anti-Discrimination Laws as the Albanese government decides on how to change these laws.
The ALRC seeks submissions on its consultation paper, with a closing date of February 24, 2023. A special site “for individual members of the public to contribute their personal views and experiences” also forms part of the inquiry.
The consultation paper maintains exemptions for institutions such as Bible Colleges training religious ministers but pushes back against conservative religious schools in several critical areas. While some conservative schools will argue, for example, that they do not expel LGB students, other proposals will cause them concern. On the other hand, some of the recommendations reflect the current practices of other schools that welcome LGBTQIA students and staff while teaching conservative doctrine.
The ALRC was given terms of reference that reflect the Albanese government policy that an educational institution.
• must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status, or pregnancy;
• must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy;
• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.
Removing discrimination against students
The ALRC recommends removing the exemptions in the Sex Discrimination Act that have allowed schools to discriminate against students on the basis of sexual orientation, gender identity and other attributes in “good faith in order to avoid injury to the religious susceptibilities of the adherents of that religion or creed.”
Instead, “Religious educational institutions should not be allowed to discriminate against students (current or prospective) on the grounds of their sexual orientation, gender identity, marital or relationship status, or pregnancy, or on the grounds that a family member or carer has one of those attributes,” states the ARLC paper’s “proposition A.”
Training institutions for religious ministers (such as Bible Colleges) “should be permitted to train religious ministers and members of religious orders, and regulate participation in religious observances or practices, unfettered by sex discrimination laws.”
Balancing the right to religious freedom against those anti-discrimination proposals, the ALRC says, “Religious educational institutions should be permitted to teach religious doctrines or beliefs on sex or sexual orientation in a way that accords with their duty of care to students and requirements of the curriculum.”
Practical examples of the change
Among a list of practical outcomes, the ARLC lists are:
• a school could no longer refuse to enrol a student who is LGBTQ+.
• LGBTQ+ students would not be able to be expelled from a school on the grounds of their LGBTQ+ status.
• A school could no longer refuse to accept as school captain an LGBTQ+ student elected or appointed in accordance with its applicable process.
Professor Neil Foster, who runs the Law and Religion Australia blog comments on the school captain proposal. “The issue here is whether a student who has decided to announce and celebrate their homosexual sexual orientation, can be held up by the school (as school captains usually are) as an “example” and “role model” to other students, when this is contrary to the religious teachings that underpin all the school’s activities.”
School staffing
This tension between an institution’s religious teaching and an individual’s personal life is at the heart of discussions about school staffing. The ALRC’s “proposition B” recommends that an educational institution:
• Religious educational institutions should not be allowed to discriminate against any staff (current or prospective) on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy.
• Once again, an exemption is given for institutions training religious ministers.
• Religious educational institutions should be able to require staff involved in the teaching of religious doctrine or belief to teach religious doctrine or belief on sex or sexuality as set out by that institution and in accordance with their duty of care to students and staff and requirements of the curriculum.
The ALRC defines what practising a religion means
The practical outworking examples the ALRC suggest how delicate this balance is between the religious institution and an individual.
“A school could require a LGBTQ+ staff member involved in the teaching of religious doctrine or beliefs to teach the school’s position on those religious doctrines or beliefs, as long as they were able to provide objective information about alternative viewpoints if they wished,” the ARLC states. Would the “objective information” about alternative viewpoints include their sexual preference or gender identity. For example, could an LGBTQIA teacher effectively teach the religious doctrine of an institution that took a conservative doctrinal stance?
This interaction involves what the ALRC sees as a balancing proposition C, allowing some consideration of religion in selecting staff.
“In relation to selection, appointment, and promotion, religious educational institutions should be able to preference staff based on the staff member’s religious belief or activity, where this is justified because:
• participation of the person in the teaching, observance, or practice of the religion is a genuine requirement of the role;
• the differential treatment is proportionate to the objective of upholding the religious ethos of the institution; and
• the criteria for preferencing in relation to religion or belief would not amount to discrimination on another prohibited ground (such as sex, sexual orientation, gender identity, marital or relationship status, or pregnancy) if applied to a person with the relevant attribute.
What if a religious body maintains a doctrine that homosexual sex, or sex outside of marriage for heterosexuals, is a sin? The ALRC paper suggests that doctrine can’t be taken into account with regard to staffing.
“Finally, a key aspect of this proposition is that preferencing on the grounds of religion cannot be used to justify discrimination in relation to attributes protected under the Sex Discrimination Act, ” the ALRC paper states. “For example, a religious educational institution could not refuse to consider a person as a ‘practising’ member of its religion because the person was LGBTQ+ or in a same-sex relationship, where the person adhered to other religious criteria that the institution reasonably applied. Discrimination could be based on a person’s attributes, such as their sexual orientation or gender identity, or their beliefs about an attribute. As discussed further in the human rights analysis in Appendix [A.6]–[A.10] this is consistent with the way that the relevant rights have been interpreted by UN bodies, and is crucial to ensuring that Proposition B is not undermined in the implementation of Proposition C.”
In the practical outworking of Proposition C, the ALRC suggests that under the Fairwork Act, “an enterprise agreement for a group of religious educational institutions could include selection criteria for senior leadership roles that give preference to practising members of the religion, if the staff in those positions are expected to play a role in religious practice and/or in shaping the religious ethos of the school.”
It is hard to resist the implication that the ALRC proposal restricts what a religion can define as “practising” the faith. The ALRC may consider isolating this aspect of religious practice reasonably easy. But a requirement to believe the Bible is infallible or inerrant, or attend a specific type of church, may have the same practical effect the ALRC seeks to avoid. But, again, the ALRC appears not to understand how religious doctrines interact.
A balancing act
In other practical outcomes of the staffing proposals, ALRC can be seen to be performing a balancing act.
“• a school where all teaching staff were required to lead home rooms for students where acts of religious observance or practice were expected to be carried out could preference applicants on religious grounds, such as whether they supported the religious ethos of the school (and any particular requirement would need to be assessed for proportionality to the aim of maintaining the religious ethos of the particular school)
• a requirement for appointment or promotion that a staff member attend a particular temple, synagogue, mosque or church (for example) would need to be assessed on a case-by-case basis, by reference to the nature of the role and whether the requirement was proportionate to maintaining the religious ethos of the school.”
In its analysis, the ALRC gives its reasons for, according to Bible colleges and institutions training ministers more ability to discriminate in selecting staff and students, quoting Professor Heiner Bielefeldt, the UN Special Rapporteur on the Freedom of Religion or Belief. “Religious communities, in particular minority communities, need an appropriate institutional infrastructure, without which their long-term survival options as a community might be in serious peril, a situation which at the same time would amount to a violation of freedom of religion or belief of individual member.”
In schools, on the other hand, the rights of religious staff to dissent form part of the ARLC’s argument.
What does supporting ‘ethos’ really mean?
The promise by the Albanese government to have staff respect the ‘ethos’ of religious educational institutions is put to the test in the ALRC paper.
Proposition D dealing with ethos, states, “Religious educational institutions should be able to expect all staff to respect their institutional ethos. A religious educational institution should be able to take action to prevent any staff member from actively undermining the institutional ethos of their employer.”
Proposition D also says, “Religious educational institutions should be able to impose reasonable and proportionate codes of staff conduct” but also “Respect for an educational institution’s ethos and codes of conduct or behaviour should not require employees to hide their own sex, sexual orientation, gender identity, marital or relationship status, or pregnancy in connection with work or in private life, or to refrain from supporting another person with these attributes.”
The tension around ethos could be summed up in the question, “how can a LGBTIQA person who is open about their sexuality or gender identitysupport the ethos of a conservative religious institution.”
In the practical outcomes listed by the ALRC, the rights of staff would include the following:
“• A religious school could not take action against a staff member for supporting an LGBTQ+ student, or attending a Pride rally, on the grounds that it undermined the religious ethos of the school; and
• A kindergarten could terminate the employment of a staff member who actively tried to convert parents of students to another religion if this was proportionate in the circumstances (subject to the requirements of employment law).”
• A school could impose reasonable and proportionate requirements for all staff in a code of conduct that staff cannot publicly denigrate or ridicule the religion of the institution (as practised in that institution); and
• A school could impose reasonable and proportionate requirements for all staff in a code of conduct that appropriate respect be given by staff to religious observances and practices within the school.”
While the ALRC gives practical examples of what upholding the school’s ethos does not include (not banning staff or students from a Pride march), it does not provide examples of what it does include. For example, to be slightly tendentious, would it mean rules about what sort of banner could be carried in the Pride march? Or could a staff member join the “Sisters of Perpetual Indulgence” in nun’s outfits?
However, the ALRC is being serious in its proposals: in a section on changes to the Fairwork Act, a school has the right to terminate staff for undermining its ethos.
As with the definition of practising a religion, a school’s ” ethos ” seems to be restricted from including conservative views on LGBTQIA issues. If the ALRC takes these forward, it would be helpful to distinguish between a definition of practising a religion and ethos for anti-discrimination law rather than being open to seeming to restrict what a belief might define as its practices and ethos.
Teaching religious doctrine
Responding to submissions calling for the teaching of religious doctrines to be protected, the ALRC recommends the content of the curriculum is not subject to the Sex Discrimination Act. They adopt a model from the UK Equality Act, which explicitly excludes the content of the curriculum from the scope of the Act, but includes the way it is taught. For example, UK departmental guidance states, “If a school conveyed its belief in a way that involved haranguing, harassing or berating a particular pupil or group of pupils, then this would be unacceptable in any circumstances and is likely to constitute unlawful discrimination.”
Image credit: creazilla
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