Law Updates
14.02.23
Support for LGBTQI+ students in religious schools – a review of proposed changes to the Sex Discrimination Act
On 27 January 2023, the Australian Law Reform Commission released a consultation paper entitled “Religious Educational Institutions and Anti-Discrimination Laws”. This consultation paper seeks submissions from stakeholders on proposals to change the way Commonwealth anti-discrimination law applied to religious schools and other educations institutions.
Following the release of the consultation paper and in recent times, there has been significant media attention on religious schools and educational institutions and their policies regarding students and staff, as well as controversial curriculum. This is particularly important, with Sydney hosting World Pride this month.
This blog will examine the consultation paper released by the Australian law Reform Commission and discuss why this paper is a huge step forward in supporting diverse people across Australia.
What are the current laws?
In Australia, the Sex Discrimination Act 1984 (Cth) has existing exceptions for religious educational institutions, as follows:
Sex Discrimination Act 1984 (Cth) (“Sex Discrimination Act”)
Generally, the Sex Discrimination Act provides that it is unlawful to discriminated in a number of contexts based on a number of ‘protected attributes’. These include sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family responsibilities.
Section 21 of the Sex Discrimination Act makes it unlawful for a body or person administering a school, college, university or other institution at which education or training is provided, to discriminate against a student or prospective student on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the provision of education. In particular, it is unlawful to:
- Refuse a prospective student’s application or admission as a student;
- Discriminate in the terms or conditions on which the educational institution if prepared to admit a potential student;
- Deny or limit a student’s access to any benefit provided by the educational authority;
- Expel the student; or
- Subject the student to any other detriment.[1]
However, section 38(3) of the Sex Discrimination Act provides an exemption for religious educational institutions from the requirements of section 21, so that it is lawful for a religious educational institution to discriminate against a student on some grounds (sexual orientation, gender identity, marital or relationship status or pregnancy) where the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of the adherent of that religion or creed’.
Equally, section 38(1) of the Sex Discrimination Act creates an exception for religious educational institutions from the requirements in relation to selection of employees, operating more narrowly than in relation to students, as it only applies in terms of selection, appointment and dismissal. This section does not provide any exception for discrimination in relation to: terms or conditions on which employment is offered; limiting an employee’s opportunities for promotion or training; or, subjecting an employee to any other detriment.[2]
What are the proposed changes?
The proposed amendments to the Sex Discrimination Act require the Australian Law Reform Commission to consider what changes should be made to Federal anti-discrimination laws to ensure, to the extent practicable, that the law reflects the commitment of the Australian Federal Government to Australia’s international human rights obligations.[3]
Under treaties signed by the Australian Government, Australia has committed to human rights obligation to respect and protect human rights, including rights to non-discrimination and equality, freedom of thought, conscience and religion, life, privacy, freedom of expression, freedom of association, work, education, cultural rights and children’s rights. The Australian Law Reform Commission is seeking to examine changes to the Sex Discrimination Act and the Fair Work Act, so that religious educational institutions:
- 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 of a religious educational institute on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy; and
- 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.[4]
The Australian Law Reform Commission has noted that their inquiry follows several years of activity regarding potential law reform across Australia on related issues, and seeks for a change in the Sex Discrimination Act and the Fair Work Act to mean that generally, a religious education institution could no longer treat a student or prospective student less favourably because they are LGBTQI+, unmarried or pregnant (direct discrimination). It would also mean that a religious educational institution could no longer impose policies or practices that have the effect of disadvantaging students with those characteristics (indirect discrimination), although the educational institution would be allowed to impose such policies (for example uniform or behaviour policies) that were reasonable and proportionate in the circumstances.
There are similar propositions proposed for staff members of religious education institutions.
The proposed laws will, however, allow staff of religious educational institutions to continue to give preference to prospective staff on religious grounds, but only when the teaching, observance or practice of religion is, genuinely a part of the role and the criteria applied are proportionate.
The ALRC is seeking stakeholder submissions on four general propositions and fourteen technical propositions for reform.
Investigation of schools
In late January 2023, the NSW Education Standards Authority (NESA) announced that they would be investigating Sydney schools linked to the controversial Catholic group, Opus Dei. The timing around this investigation and the ALRC consultation paper was apt, with students from schools associated with Opus Dei coming forward to tell their stories.
Opus Dei is a small organisation with the Catholic Church, officially known as the Prelature of the Holy Cross and Opus Dei.[5] Members of Opus Dei are known to abide by strict conservative teachings, and there is a general level of secrecy, with its global members determined by personal criteria instead of a geographical area, as would be the normal process for a local diocese. [6]
The ABC program, Four Corners, investigated various schools associated with Opus Dei and interviewed a number of former students. Amongst the stories, former students from the LGBTQI+ community have come forward, stating that they were taught that homosexuality was a grave mortal sin that would damn them to hell.[7]
Response from religious organisations
The National Catholic Education Commission made comments following the announcement of the review of the exemptions for religious education institutions. In summary, Catholic Education believes:
- Catholic schools should be free to be Catholic.
- Religious freedom deserves the same protection as other rights in Australia, ensuring a fair and reasonable balance with other protected rights.
- Parents should have the right to choose a school for their children that reflects their values and belief.
- Catholic schools don’t, and are not seeking to, discriminate against people on the basis of their personal attributes.
- Governments should protect the rights of Australians to associate on common religious beliefs.
- Australia needs harmonisation of legislation for religious freedoms to prevent over-reach of state legislation on faith-based schools.[8]
Why is this so important?
In modern Australia, a commitment to ensuring inclusivity of LGBTQI+ people is paramount. In chatting to people around the office whilst drafting this blog, many of us could not understand why religious organisations were able to be exempt from the provisions in the Sex Discrimination Act or the Fair Work Act.
This is not to say that the religious view of people should be overlooked – rather, we should be looking for a more fair balance between the interests of religious organisations and members of the LGBTQI+ community.
With World Pride being held in Sydney this year and in the midst of pride month, it is integral that as a community we continue to strive for equality of all members of our community. Educational institutions should be a place for people from all walks of life to learn, without the fear of being discriminated against.
[1] Sex Discrimination Act 1984 (Cth), section 21.
[2] Sex Discrimination Act 1984 (Cth), section 38(1) specifies that the exceptions only operate in relation to the prohibitions in ss 14(1)(a), 14(1)(b), 14(2)(c).
[3] https://www.alrc.gov.au/inquiry/anti-discrimination-laws/
[4] https://www.alrc.gov.au/inquiry/anti-discrimination-laws/
[5] https://www.abc.net.au/news/2023-01-30/what-is-opus-dei-secretive-catholic-church-group-prelature/101905802
[6] https://www.abc.net.au/news/2023-01-30/what-is-opus-dei-secretive-catholic-church-group-prelature/101905802
[7] https://www.abc.net.au/news/2023-01-30/inside-sydney-opus-dei-affiliated-private-schools/101777060
[8] https://www.ncec.catholic.edu.au/faith/religious-freedom