Striking the appropriate balance between religious freedom and LGBT+ rights continues to be controversial across the world. In Australia, this controversy is currently situated in the schoolyard. The current debate centres around whether religious schools should be allowed to discriminate in connection to employment and the provision of education and training based on LGBT+ status.
Section 38 of the Sex Discrimination Act 1984 (Cth) (‘SDA’) currently exempts educational institutions established for religious purposes from the prohibitions on discrimination on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy in respect of employment and education where the discrimination is carried out in accordance with the doctrine or beliefs of a particular religion or creed. This exemption with respect to LGBT+ status has been included in the legislation since 2013. While it has never been the subject of judicial consideration, there have been reports in the media that some teacher’s contracts of employment have been terminated and some students have been excluded from religious schools because of their LGBT+ status. Although a poll in 2018 found a majority of Australians opposed religious schools’ exemption from discrimination laws, there was little public pressure to change the status quo.
But in early October, this provision became the subject of controversy when it emerged that an inquiry into the protection of religious freedom (the Ruddock Inquiry) had recommended that the exemption be reformulated to emphasise that religious schools could only discriminate against LGBT+ students and staff where the discrimination imposed was founded in the precepts of the religion, where the discriminatory policy was publicly available to all staff and students and, in the case of students, where the school has taken into account the ‘best interests of the student’.
Bowing to public pressure, the Australian government agreed to remove the exemptions for religious schools in the SDA with respect to LGBT+ students. The federal government is currently committed to keeping the exemption with respect to employees and contractors of religious schools in its current form. A group of prominent religious schools wrote to the federal government in late October arguing that the exemptions should remain because, however clumsy, they were “the only significant legal protection available to schools to maintain their ethos and values.”
The government’s current proposal to amend the SDA will not remove the exemption with respect to students in its entirety. The government’s current approach would prohibit direct discrimination against students based on LGBT+ status but would still allow for indirect discrimination in broadly similar terms to that recommended by the Ruddock Inquiry. Critics of this proposal argue that allowing schools to impose discriminatory conditions or rules on students where these are imposed in ‘good faith’ and with regard to the ‘best interests of the student’ will not only generate significant confusion and complexity to the law but will still expose LGBT+ students to a broad range of unfairly discriminatory policies and practices of religious schools. Examples of such policies and rules falling within the scope of this exemption could include policies and rules relating to gendered uniforms, bathrooms and sporting opportunities.
It remains to be seen what the amendments to the SDA will ultimately be with respect to religious schools’ right to discriminate against staff and students. But it should be remembered that even if section 38 of the SDA is ultimately removed, Australian discrimination law will still give schools wide scope to subject staff and students to a variety of policies, rules or conditions in keeping with the school’s values even where they have a discriminatory effect. This is because the Australian approach to matters of indirect discrimination only requires a duty-bearer to prove that the rule or condition is ‘reasonable’ rather than the higher justificatory standards that are in place in other jurisdictions. This lower standard of justification allows religious schools to have policies that may disadvantage LGBT+ staff and students so long as these are reasonable. The capacity for religious schools “maintain their ethos and values” will remain strong, even where they can no longer openly discriminate against LGBT+ students.