Myka Sanders, a teacher at Sacred Heart College, a Catholic school in Oakleigh, Melbourne identifies as non-binary. They want the school to use their they/them pronouns and the gender neutral title Mx ( pronounced “mix” or “mucks”) for their title.
Melbourne Archdiocese Catholic Schools (Macs) has allowed Sanders to use their chosen name, but has refused to have the pronouns or title – presumeably that would have the children saying “mix” or “mucks.”
The case is likely to make legal history as it will be a test case for the application of section 109 of the Constitution which provides that Commonwealth law prevails over state law when they clash.
In this case, it appears the Commonwealth Sex Discrimination Act, which has more exemptions for religious schools will overide the Victorian Equal Opportunity Act.
Myka Sanders’ case was taken to the Victorian Civil and Adminsitrative Tribunal by the Independent Education Union but Macs successfully argued that the federal act should apply, The Guardian reports.
“This is where the school has drawn the line because they said degendering somebody is contrary to Catholic anthropology, we’re just not going to do it, Monica Doumit, Director of Public Affairs and Engagement for the Catholic Archdiocese of Sydney, told Freedom25, a conference organised by the legal thinktank freedom for faith. “We’re not going to force the staff to do it, we’re not going to force the students to do it.”
“I want to be clear, the teacher hasn’t been fired, hasn’t otherwise being treated differently, but it’s just really the tipping point of the pronoun use.
“It’s a constitutional matter and it’s going to another magistrate’s court next month instead [of VCAT]. Professor Neil Foster has written in extensively on … on the idea of the Sex Discrimination Act being inconsistent with stricter state laws that restricted religious freedom. And this looks like it will be the test case and if media reports of anything to go by, both sides have indicated your willingness to take this all the way to the high court. So this will be a very big, big test case. And it’s interesting because at its heart this isn’t about whether or not a non-binary teacher is accepted to be employed at a school, the school employed them, but it’s whether or about it’s whether they can come into a faith-based school and require staff and students to conform to their own beliefs that are contrary to the beliefs of the school.”
Asked at Freedom25 about the risks in this case, Doumit pointed to the case of the controversialist Jordan Peterson.
“The best case scenario, if you like for the Catholic school, is that it gets taken all the way to the High Court. Then the High Court gives some wonderful judgement that says, ‘Hey, section 38 of the Sex Discrimination Act does indeed override for restrictive state laws.’ Then there are pressures on the federal government to change the Sex Discrimination Act to take away that, right? And so even if you win the judicial fight, you’re going to straight into a political fight almost immediately. … So there is risk in actually fighting this case, that we actually end up losing more. But … look, this is kind of where Jordan Peterson started, right? There’s something about you shouldn’t be able to force somebody to say something that’s contrary to their belief, which is exactly valid, right?”
Image: Sacred Heart Girls College, Oakleigh Melbourne. Image Credit: Google Maps