Religious Schools and the Sex Discrimination Act

In November 2017, in the midst of parliamentary debate about how to legislate marriage equality after the historic yes vote, the Turnbull government asked former attorney general Philip Ruddock to lead a panel to review the issue of religious freedom. The review has recommended the Commonwealth amend the federal Sex Discrimination Act to provide “that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status.” In response to the debate which has followed, on Monday 4 February 2019, The Sydney Institute held a discussion on the issue of religious freedom and the Sex Discrimination Act. Dr Greg Walsh form the School of Law at Notre Dame University, Sydney, and Associate Professor Amy Maguire presented their different views on what it all should or could involve.

RELIGIOUS SCHOOLS AND THE SEX DISCRIMINATION ACT

 GREG WALSH

On 22 November 2017, the then Prime Minister Malcolm Turnbull established an Expert Panel led by former Liberal politician Phillip Ruddock to examine whether religious freedom was adequately protected in Australia. The Expert Panel provided its report to the government in May 2018, but the government only released the report “Religious Freedom Review: Report of the Expert Panel” in December that year.

Before the Report was released to the public and during a by-election in the seat of Wentworth (caused by the resignation of Turnbull after his removal from the office of Prime Minister) a section of the report was leaked. Newspapers reported extensively on a particular section of the Report containing the Expert Panel’s recommendation that religious schools should retain the ability under the Sex Discrimination Act 1984 (Cth) (“the Act”) to determine their staff and student body according to the school’s religion. The Panel, however, recommended that when religious schools were making decisions about their students the decisions had to be based on the school’s religion, there needed to be a publicly available policy on the school’s position, the policy had to be given to students and parents, and the school had to have the best interests of the child as its primary consideration.

In a failed attempt to retain the seat of Wentworth, the newly appointed Prime Minister Scott Morrison committed to removing the ability of religious schools to expel students on the grounds of their sexuality. Following on from this commitment the Australian Labor Party introduced in late 2018 the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 (Cth) (“the parliamentary model”). Debate about whether the Parliamentary model should be accepted as proposed or with amendments dominated the final sitting days of the Commonwealth Parliament. Although Labor, Greens and many Liberal and National politicians were committed to substantially reducing the protections provided to religious schools, due to some disagreements between the parties no amendment could be agreed upon before Parliament concluded for the Christmas break.

The issue is currently being considered by the Senate Legal and Constitutional Affairs Committee, which is due to deliver its report when the Commonwealth Parliament resumes in 2019. The Coalition has also referred the issue of how religious schools should be regulated under the Act to the Australian Law Reform Commission with the due date for their report set for mid-2019 (conveniently scheduled for a time after the upcoming Federal election). This referral to the Commission may not deter Labor and the Greens from a further attempt to amend the Act before the election, especially if they consider that such a move would be of benefit to them in securing additional votes. Considering the likelihood that the issue will be considered by Parliament before or after the election it is appropriate to analyse the merits of the proposed amendments and consider the approach that should be adopted to regulating religious schools under the Act.

The current law and proposed amendments

Under s 21 of the Act an educational authority is prohibited from discriminating on a range of grounds including sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding. However, under s 38(3) a protection is provided to “educational institutions established for religious purposes” so that they can make adverse decisions on the basis of a person’s sexual orientation, gender identity, marital or relationship status or pregnancy so long as they are made “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”. Further protection is provided under s 37(1)(d) of the Act for an “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”.

The Parliamentary model if enacted would have completely repealed the protection provided in s 38(3) to religious schools and other religious educational institutions. It also would have limited the protection provided in s 37(1)(d) to any “body established for religious purposes” so that it was no longer protected in relation to the provision of education (unless the decision related to the employment of persons to provide that education).

If the amendment had passed it would have achieved the desirable goal of removing the ability of religious schools to legally dismiss students solely on the ground of their sexual orientation or gender identity. However, it would have done far more than just that. The removal of the protections for religious schools would have meant that religious schools, universities and other religious bodies providing education would not have been able to deny admission, expel, impose a detriment or limit access to a benefit on grounds such as sexual orientation and gender identity.

Some protections for religious schools would have been retained. The parliamentary model would not have affected s 21(3) that allows religious schools to provide single sex education (although as “sex” is not defined in the Act there is a concern about how this protection will operate if a judge adopts a non-biological approach to defining “sex”).[2] There is also some protection under s 7B so that even if a ”condition, requirement or practice” established by a religious school disadvantages a student on grounds such as sexual orientation or gender identity it may still be lawful if a court considers it to be reasonable in the circumstances. Under s 7B(2) a determination of whether the religious school has acted reasonably may take into account the nature and extent of the disadvantage, the feasibility of overcoming or mitigating the disadvantage and the proportionality between the disadvantage and the result sought.

The problems with the parliamentary model

The limited nature of the protections provided under the parliamentary model would likely have created fundamental problems for religious schools.

Under the proposed changes, for example, a 16-year-old boy with gender dysphoria could instruct his religious school that he is now a girl and that the school must ensure his new gender is recognised by allowing the use of a different name, gender pronoun and uniform. A refusal to do so could result in a finding against the religious school for imposing a detriment on him on the basis of gender identity.

Alternatively, if he wanted to transfer to an all-girls religious school it is unlikely that the school could lawfully decline his admission or prevent him from accessing female change rooms and dormitories or competing in female-only sporting events. As mentioned, s 21(3) of the Act allows single sex education but as “sex” is not defined the nature of any protection provided by this section is uncertain.

The Bill could also limit the ability of religious schools to teach a traditional understanding of sexual ethics or that biology determines whether someone is male or female not their emotional state. Teaching these doctrines may amount to imposing a detriment on students on the grounds of sexual orientation or gender identity. Similarly, a refusal to allow programs promoting gender fluidity to run in schools may be unlawful for limiting access to a benefit on the grounds of gender identity.

As the parliamentary model would have removed the protections provided to education provided by a “body established for religious purposes” the scope of the amendments would have gone beyond just religious educational authorities. A wide range of religious organisations involved in providing education could have been exposed including religious retreat centres, religious training facilities and even churches and other houses of worship.

Due to these and other problems the Coalition proposed a range of amendments including retaining the protection under the Act for “bodies established for religious purposes”, protecting teaching activity that was in accordance with the school’s religion and adding additional criteria that would have made it more likely that a “condition, requirement or practice” of a religious school or other religious organisation would have been found to have been reasonable.[3] However, as mentioned, no agreement could be reached on these amendments or any other amendment.

The expert panel model

The various ways outlined in which the parliamentary model could have adversely affected religious schools demonstrates the need to adopt a different approach to amending the Act.

An arguably superior approach to adopt would be one that is substantially based on the approach recommended by the Expert Panel (the Expert Panel model). Such an approach would maintain a protection for student related decisions of religious schools so that the Act is not violated if those controlling the religious school make the decision, in good faith, in order to adhere to the school’s religion. Such a position is consistent with the Report of the Expert Panel that recommended that the school’s decision had to be “founded in the precepts of the religion”.[4] The approach also has the significant benefit that it avoids the many problems involved in adopting a court enforced test to assess the appropriateness of a school’s decisions including uncertainty regarding the legal position of schools, students and other relevant parties, the expense and stress for parties caused by the inevitable litigation that will be produced by this uncertainty and the adverse publicity and ill will created by the litigation process.

Under the Expert Panel model the school would also be required to produce a policy explaining its approach to student related decisions concerning the characteristics protected by the Act and why such an approach is appropriate due to the school’s religion. This policy would need to be made publicly available and provided to students and their parents at the time of enrolment. This approach would also follow the Report of the Expert Panel that recommended that “the school has a publicly available policy outlining its position in relation to the matter … [and] the school provides a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated”.[6]

The approach would closely follow the last element of the Expert Panel’s recommendation that “the school has regard to the best interests of the child as the primary consideration in its conduct”.[7] However, the approach would modify the recommendation so that the school was required to consider the best interests of all the school’s children rather than one particular child. Further, it would be clarified that the determination of whether a decision was in the best interests of the child would be determined by the school rather than the courts to avoid the potential that every decision made by a religious school would be subject to litigation for not being in the “best interests” of the children.

A further element of the Expert Panel model would narrow the protections provided to religious schools so that they were not able to dismiss a student solely on the basis of their sexual orientation or gender identity. Such an approach is consistent with the commitment made by Prime Minister Morrison and is also widely supported by religious leaders. Archbishop Coleridge, the President of the Australian Catholic Bishops Conference, for example, has declared that Catholic officials have “not sought concessions to discriminate against students or teachers based on their sexuality, gender identity or relationship status”.[8] Similarly, Greg Craven, the Vice Chancellor of the Australian Catholic University, rejected the “vile suggestion that faith-based schools are demanding the right to expel gay or transgender students” stating that “No one supports it. Australian Christians as a bloc would oppose it, precisely as a matter of faith”.[9] A view supported by Anglican Archbishop Glenn Davies who advised that “Anglican schools in Sydney do not expel students for being gay. It is an absurd proposition and it is certainly not something we asked for”.

The final element of the Expert Panel model would require a statement to be included in the Act making it clear that student related decisions made by a religious school are not acts of discrimination. Such a statement is necessary to educate the community that these decisions uphold rather than violate the right to equality.

The right to equality

Central to any assessment of whether the Expert Panel model is superior to the parliamentary model is a consideration of whether it appropriately respects the right to equality.[11] Critics of the current protections adopt the view that such laws must be reformed as they permit conduct that fails to show respect for equality which is foundational to any society dedicated to respecting human rights. This position is appropriately expressed by Sir Hersch Lauterpacht who argued that “[t]he claim to equality before the law is in a substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties”.[12] Similarly, Nazila Ghanea claims that the “[p]rovisions on non-discrimination and equality have long been the sine qua non of all international human rights instruments”.[13] Bell P in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) expands on this position in an Australian context:

Discrimination is repugnant and has insidious consequences. It demeans people in the humanity and dignity which is their birthright, impairs their personal autonomy and development, damages society and violates the principle of equality on which freedom in democracy ultimately depends. The community looks to the law for equal treatment and protection against discrimination … The first human right recognised in the [Victorian Charter of Human Rights and Responsibilities] is equality and its natural correlatives – freedom and protection from discrimination. It is a recurring theme in the other rights. Equality permeates every pore of the Charter. The human rights of equality and non-discrimination are of fundamental importance to individuals, society and democracy.[14]

Therefore, the dominant criticism of the current protections provided to religious schools is that they permit discrimination against students (and employees) on grounds protected by the Act including sexual orientation and gender identity. On this understanding such laws must be reformed as they violate equality by permitting discrimination on grounds protected by anti-discrimination legislation. Similar criticisms are made of the Expert Panel model on the basis that as it still permits discrimination on protected grounds it is unacceptable.

Religious liberty is more important than equality

One response to this criticism is to recognise that both the right to equality and the right to religious liberty are not absolute rights that can never be limited. In some situations, the right to religious liberty must be limited to respect the fundamental rights and freedoms of others while in other situations the right to equality must be limited. Considering the importance of religious schools to many religious communities it is arguable that this is a situation where the right to equality must be limited considering the significance of the religious liberty claim and the importance of allowing religious schools to make the decisions regarding the staff members and students they consider necessary to establish an authentic religious culture within the school.[15] On this basis, the Expert Panel model is superior to the parliamentary model as it better respects the right to religious liberty, which in this context must be given priority over the right to equality.

The right to equality protects religion

A stronger argument in favour of the Expert Panel model is that it demonstrates better respect for the right to equality compared to the parliamentary model.

The critics of religious school protections who argue that the protections cannot be justified as they violate the right to equality typically fail to recognise that the right to equality explicitly protects the ground of religion. Article 26 of the International Covenant on Civil and Political Rights, for example, declares that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law … the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion … or other status”.[16] Similarly, under Article 2 of the International Covenant on Economic Social and Cultural Rights an obligation is imposed on States to protect rights contained in the Covenant “without discrimination of any kind as to race, colour, sex, language, religion … or other status”.[17]

Demonstrating appropriate respect for the right to equality does not just involve removing laws and eliminating practices that overtly impose a detriment on someone because of a protected attribute. A State genuinely committed to the right to equality will provide comprehensive protection for individuals belonging to a protected group. A key way that the State can achieve this is through allowing these individuals to establish supportive organisations and permitting them to manage group membership so that the organisations remain committed to supporting the individuals.

This commitment to allowing individuals with a range of protected attributes to create and manage supportive organisations is already respected in Australia. Under the Anti-Discrimination Act 1977 (NSW), for example, a registered club established with the principal object of providing benefits to a particular race is able to exclude persons not of that race from becoming members of the club.[18] This protection is provided to clubs irrespective of whether the racial group on which the club is established has historically suffered from discrimination.[19] A similar protection is also provided under the Anti-Discrimination Act 1977 (NSW) to registered clubs where membership of the club is only available to a particular gender.[20] The Equal Opportunity Act 2010 (Vic) provides another example where protection is provided for the employment decisions of political parties stating that “[a]n employer may discriminate on the basis of political belief or activity in the offering of employment to another person as a ministerial adviser, member of staff of a political party, member of the electorate staff of any person or any similar employment”.

A State committed to equality should be similarly committed to protecting religious individuals and the organisations that they create in a manner that is sensitive to the diversity that exists within different religious worldviews. On the need for States to adopt such an approach Arcot Krishnaswami, the then UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, noted that “since each religion or belief makes different demands on its followers, a mechanical approach to the principle of equality which does not take into account the various demands will often lead to injustice and in some cases discrimination”.[22] Similarly, Sachs J in Christian Education South Africa argued that “[t]o grant respect to sincerely held religious views of a community and make an exception from a general law to accommodate them, would not be unfair to anyone else who did not hold those views … the essence of equality lies not in treating everyone in the same way, but in treating everyone with equal concern and respect”.[23]

A key way in which many religious persons comply with their religious commitments is through creating religious organisations, such as religious schools, to learn more about their faith, fulfill religious obligations, and discuss various challenges that the religious community might be facing. If the State allows individuals with a common attribute, such as gender, race or sexuality, to legally form supportive organisations and exclude from membership within the group those who do not share the attribute, or who are not committed to the purposes of the group, then it should be willing to do the same for individuals who share the same worldview. A failure to enact laws to provide the same level of protection to religious organisations can appropriately be understood as a violation of the right to equality. As Iain Benson notes:

… religion is an equality right itself and religious people are entitled to non-discriminatory treatment in terms of their religion as well, so placing equality and non-discrimination over against religion or placing some forms of non-discrimination (say, sexual orientation) as things more important than the religious person’s freedom against non-discrimination is an error – though an all too common one.[24]

The provision of legal protections for an indigenous school so that it could select indigenous staff members and students to help the school more effectively protect and promote indigenous culture, history and religion would likely be widely supported by members of the community. If in future decades there is no longer any significant difference between indigenous and non-indigenous persons in terms of health, education, employment and other social markers, there would likely still be strong support for the indigenous school and its ability to select indigenous employees and students in order to protect the unique cultural and religious aspects of the indigenous community. The level of support would likely remain high even if it were shown that the protections provided were causing non-indigenous persons to suffer physical and mental harm from being excluded from the school. A State genuinely committed to respecting the right to equality should show the same level of support to religious groups that want to establish and effectively manage a religious school to meet the particular needs of their community.

The harm caused by the protections for religious schools

Considering that the right to equality can be relied upon by those supporting the parliamentary model and also those supporting the Expert Panel model it is helpful to assess the level of harm that is likely to be caused by the different models that could be adopted for regulating religious schools.

In 2011, there were 1.2 million students attending non-government schools.[25] This number is likely to significantly increase in the future as non-government schools are becoming increasingly popular with the percentage of students attending non-government schools rising from 31 per cent in 2001 to 34.6 per cent in 2011.[26]

Any school – whether religious or non-religious – has the capacity to cause significant physical and emotional harm to students through exposing them to social rejection and isolation, discrimination and even violence from students, staff members and other individuals involved with the school. However, a central concern about the operation of religious schools is that their theological positions may be contributing to a school environment that is harmful to students. Some schools, for example, are based on religions that teach that those who do not believe in the school’s religion are acting unethically, that our biology determines whether we are male or female, and that sexual activity can only ethically occur between a man and woman in a marriage recognised as valid by the religion. Critics of such schools argue that they may cause a student to suffer significant mental and physical harm if the teachers, students and other religious adherents within the school and the material taught at the school are critical of a student due to their sexuality, gender identity, or family situation.

Some support for the harm that religious schools may be causing students to suffer is provided by a study undertaken by Carolyn Evans and Beth Gaze where the authors reported that some principals of religious schools were not supportive of students or staff members who became pregnant outside of marriage or who were openly gay or lesbian.[27] Three principals, for example, informed the authors that a student who became pregnant would probably be unable to continue attending the school although it might be possible for the school to provide her with homework and personal tuition so she could complete her education.[28]

Further support for the view that some religious schools may be causing harm to students is provided by a study undertaken by Hillier, Turner and Mitchell on the well-being of same-sex attracted young people in Australia.[29] The authors advertised the study through various media seeking persons aged between 14 and 21 who identified as having a same-sex attraction who would be willing to anonymously fill out a questionnaire regarding their attitudes and experiences as a person with a same-sex attraction.[30] Although the study did not have questions specifically aimed at religion after reviewing the views expressed by the 1749 persons who completed the questionnaire the authors noticed that religion (typically Christianity – an unsurprising result considering it has the most adherents in Australia) was often mentioned by respondents as a factor that contributed to the emotional harm they experienced due to their same-sex attraction.[31] After analysing the information in the questionnaires the authors concluded that

[Y]oung people who were Christians, who attended Christian schools and/or belonged to Christian families … were forced to choose between their sexuality and their religion. In many cases the rejection of their sexuality and the embracing of their religion resulted in young people hating and harming themselves. Leaving their faith for many was a painful but necessary road to recovery – a sad loss for the church and a survival choice for the young person.[32]

The Victorian Gay and Lesbian Rights Lobby emphasised the problematic aspects of protections for religious schools in a submission to a Victorian government inquiry into reforming anti-discrimination legislation.[33] The Lobby argued that

… a climate of homophobia, such as is created by the hostility of some religious bodies to homosexuality, leads to a higher prevalence of depression, self-harm and suicidal ideation (and attempts) among SSA [same-sex attracted] young people. These harms to health are caused both by direct propagation of teachings harmful to SSA children, and also by the failure of their schools to permit, let alone encourage, a fair representation of healthy role models of lesbians and gay men among the staff.[34]

Similarly, the Rainbow Network, a Victorian organisation of community and school staff who work with gay, lesbian, bisexual, transgender and intersex young people, stated that such protections can

… create a climate in Catholic schools where same sex attracted young people can feel isolated and unsupported … For students with gay or lesbian parents the existence of [the protections] can also indicate that there is something immoral or inappropriate about their parents and their family structure. Further the implication of [the protections is] that if you identify as Catholic or Christian and same sex attracted, it is difficult to reconcile one aspect of your personality and self with the other.[35]

Further emotional harm may be suffered by students when they realise that the State instead of enacting legal measures to produce a more supportive environment within religious schools provides legal protections to religious schools to exclude persons on grounds such as their sexuality, gender identity and marital status. On the harm that can potentially be caused to these students Tobin argues that

[T]he maintenance of a legal regime that sanctions discrimination against such students and the individuals who teach them on the basis of their sexual orientation contributes to a social and cultural environment in which their sexual orientation is devalued or forced to be concealed. It certainly does nothing to affirm and support their sexual identity. Life is already hard enough for children and young people but to delegitimise their sexual orientation or home life, in the case of single or unmarried parents, creates an inconsistency with the positive obligation to provide children with an effective right to enjoy equality and the protection of their best interests.[36]

If religious schools are causing students to suffer significant harm and the protections provided under anti-discrimination legislation are contributing to this harm then this would provide strong support for preferring the parliamentary model over the Expert Panel model. However, there are good grounds to contest the claims that religious schools are causing harm to students, that the protections are playing a significant role in causing this harm, and that the best way to address any harm being caused is to remove or limit any protections provided to religious schools.

The lack of evidence that the protections are harming children

A major challenge that critics of religious schools encounter is the inability to support their criticisms with relevant empirical evidence. It is not an effective criticism of religious schools to provide studies of the significant harm suffered by persons on account of attributes such as their gender identity, sexuality or religion and then claim that religious schools and the protections provided under anti-discrimination legislation have played a significant role in producing this harm. Instead critics need to support their arguments with studies that actually support a causative link between particular students studying at religious schools and suffering harm that they would not have suffered if they had been at a different school or if the school that they had attended did not have the protections. Even more useful would be studies that focused on whether there was any difference in health outcomes for students in jurisdictions that adopted a particular approach to providing protections for religious schools and then changed the provisions to a different approach. Studies such as these would provide strong evidence regarding the extent of the harm, if any, that is being caused by religious schools.

After an extensive review of numerous articles, books and submissions by critics of the protections provided to religious schools under anti-discrimination legislation no empirical study of the impact on student welfare of different approaches to protecting religious schools could be located. Such studies may exist but, if so, it is surprising that they have not been relied upon considering the strong commitment some critics have to ensuring the protections are repealed, or at least, limited. The lack of empirical evidence is a significant problem for determining the extent of any harm that is being caused by the legal protections provided to religious schools.

A further cause for concern is the lack of any video or audio recordings that provide evidence that teachers or other employees of religious schools are failing to appropriately respect students including those who are same-sex attracted or experiencing gender dysphoria. Considering that there are over 1.2 million students attending non-government schools with many of them carrying smart phones and other devices that allow them to easily record inappropriate conduct by school employees it is revealing that there have been few, if any, recordings that have come to the attention of the public despite the strong media interest in reporting on this topic.

If empirical studies were undertaken, they might support the views of critics that religious schools are causing significant harm to students and the protections only exacerbate this harm. Alternatively, the results could show that students rarely suffer any significant emotional or physical harm from learning about the teachings of a school’s religion or through studying in an educational environment formed by that religion. Such studies could even show that many religious schools (even those with teachings that are critical of particular attributes and behaviour) are delivering a better outcome in terms of student welfare than non-religious schools. Such a result could occur due to factors such as the core message of the religions on which many religious schools are based is that respecting and caring for others is central to living an ethical life, and that all individuals are faced with challenges in living an ethical life and that the appropriate response to this is compassion and care rather than rejection.

The existence of a compassionate approach taken by the authorities of some religious schools towards staff and students on grounds such as sexuality is supported by the statements mentioned above by Archbishop Coleridge, Vice Chancellor Greg Craven and Anglican Archbishop Glenn Davies. Further support is provided by a study conducted by the Catholic priest, Fr Norden.[37] The study was based on consultations with more than 40 principals of Catholic schools, 15 senior staff members in Catholic Education Offices, 12 senior teaching and administrative staff members, 15 welfare staff coordinators and 12 graduates of Catholic schools.[38] Fr Norden stated that

[S]tudents who are same sex attracted represent a group of students within the secondary school context … [who] have particular needs. These needs must be recognized and respected to enable these students to participate and fully engage in a safe school environment … the recognition that there are same sex attracted students in every secondary school in Australia, and most likely in every classroom or sporting team or activity group, means that an environment [needs to be] established that respects diversity and refuses to tolerate behaviour that communicates or perpetuates disrespect or ignorance.[39]

Norden noted that a number of Australian Catholic secondary schools are “already actively engaged in educating their students about the issues surrounding same-sex attraction” and that a “whole of school resource kit for implementing a comprehensive approach to support same-sex attracted students and challenge homophobia … [had] been successfully implemented in numerous Catholic secondary schools”.[40] The study included case studies from the interviews conducted by Norden, which indicate that a compassionate approach is adopted by many principals and teachers at Catholic schools. Some of the actions of Catholic school employees reported in the study included employees correcting students using homophobic language, explaining to students the importance of adopting a caring and inclusive approach to persons of different sexualities, and discussing strategies with parents for promoting a safe school environment that is respectful of a diverse student body.[41] Additional support for the compassionate nature of some religious schools is also provided in the study by Hillier, Turner and Mitchell in which some respondents reported receiving support from staff members and students at Christian schools. For example, a lesbian student stated that “[t]he first person I talked to [about being a lesbian] was our school chaplain (although I’m an atheist) and he was great”.

It should also be noted that religious schools are already subject to extensive legal regulation under criminal and civil law to ensure that the school environment is safe for staff members, students and others involved with the school. Under the Education Act 1990 (NSW), for example, in order to obtain the registration that it needs to continue operating, a non-government school must ensure that “a safe and supportive environment is provided for students by means that include … school policies and procedures that make provision for the welfare of students”.[43] To assist non-government schools comply with these requirements the Board of Studies provides detailed guidelines that emphasise the obligation of non-government schools to provide an environment where students are safe from physical and emotional harm, support students in their social, academic, physical and emotional development, and develop policies and programs for students to develop a sense of self-worth and foster personal development.[44] A non-government school that is found to have breached its obligations to promote the welfare of its students is subject to a range of sanctions including deregistration resulting in the closure of the school.

The relevance of government funding

The provision of substantial government funding to religious schools is often used as a justification for limiting or removing any protections provided to religious schools. The Victorian Scrutiny of Acts and Regulation Committee in their review of the exceptions contained in the Equal Opportunity Act 1995 (Vic) considered that:

… where public money is spent on activities that are argued to be excepted from equality rights, there is a responsibility to consider the people whose rights are limited to provide freedom of religion. While some minor limitations may be acceptable, it may be difficult to justify the religious exceptions at their current levels in a large number of publicly funded institutions such as non-government schools, because of the systemic impact on the employment and equality rights of women and gay teachers.[46]

Along similar lines Thornton argues: “But why should private schools that are the recipients of considerable public funds be entitled to ignore the general law? If religious bodies claim that their freedom of religion justifies them discriminating against citizens by virtue of sex, sexuality or marital status, they should be precluded from receiving substantial moneys from the state. After all, it has been contributed by those selfsame citizens”.[47] A more detailed explanation of the merits of the criticism is provided by Mortensen:

Once account is taken of the fact that most religious schools in Australia are major recipients of government funding, the issue can be seen to involve questions of distributive justice. And, continuing a typical liberal analysis of the collision of rights, the redistribution of wealth by government through taxation and education funding is often regarded as being legitimately subject to conditions of fair equality of opportunity. In these circumstances … [it is fair to demand] equal opportunity in employment for gays, lesbians and people in de facto relationships in all schools – State and non-State – which receive government funding. … Furthermore, where equal opportunity is attached to the voluntary receipt of government funding no question of religious freedom arises. The school that wished to retain the freedom to discriminate on the ground of sexuality or marital status could do so by refusing funding, and the school that accepted funding would, in a legal sense, freely choose to do so on conditions of equal opportunity.[48]

There can be little dispute that religious schools in Australia receive major financial assistance from the Commonwealth and State governments. In the 2010-11 financial period, non-government schools in NSW were provided with $2.2 billion in funding from the Commonwealth government and $853 million in funding from the NSW government for the recurring expenses of non-government schools.[49] A substantial amount of additional government funding is also available to non-government schools for other purposes including improving school infrastructure through the capital grants program. The Commonwealth government in 2009, for example, allocated $1.35 billion for improving the infrastructure of non-government schools throughout Australia.[50]

Despite significant support for the position, the view that government funding to religious schools justifies the limitation or removal of legal protections for religious schools should be rejected. A major justification for rejecting the position is that it is inconsistent with how governments treat other individuals and groups within the community. Thornton argues that government funds should not usually be used to support groups that exclude community members, while Mortensen argues that government funding should be subject to requirements regarding equality of opportunity. However, these arguments can apply as easily to the funding and protections provided to non-religious groups as they can to religious groups. States regularly provide financial support to different groups based on particular attributes – such as race, gender and sexuality – without there being any understanding that the provision of State support undermines the group’s ability to claim protection from the State in other areas, such as, by being provided with the ability to preferentially employ persons who are compatible with the group’s identity. If the State allowed an indigenous group to make employment decisions on the grounds of race to allow it to promote an indigenous culture within the group, it is highly unlikely that government funding of the group would be considered by many to be a factor in favour of limiting or removing the indigenous group’s freedom in making employment decisions.

The view that the provision of government support to religious groups makes it more appropriate to subject them to government regulation is flawed as it involves a devaluing of the right to religious liberty compared to other human rights in a way that cannot be justified. Furthermore, considering that a majority of Australians identify as religious[51] and make a substantial contribution to the funds available to the government from taxes paid, it is reasonable for them to expect that some government funding will be directed in a manner that they consider appropriate including funding schools they establish and manage. On the need for the State to act impartially in providing government funds to community groups the Anglican Diocese of Sydney in its submission to the Commonwealth Inquiry into the Consolidation of Commonwealth Anti-Discrimination Laws observed that

… the Australian government funds organisations and activities on a regular basis that are directed to particular segments of the community or which are undertaken on the basis of particular social or cultural norms.  There is no apparent reason for singling out religiously based organisations as somehow needing to become monochrome in their recruitment and service delivery.[52]

Critics of religious schools may claim that there is a significant difference between government support for religious groups and for other groups constituted on non-religious grounds that justifies governments in removing, limiting or refusing to provide additional State protection for religious groups. However, those making such a claim should explicitly state the reasons for such a distinction. Critics often simply state that the protections for religious schools should be removed or limited if the schools are receiving government funding without justifying their position. Various explanations could be provided by such critics – for example, religions are irrational, they promote inappropriate ethical standards, they are inherently divisive, religious groups have not been disadvantaged to the same extent as other protected groups, and that there should be a substantial separation between the State and religious groups. These arguments may (or may not) be valid. However, the critical point is that these arguments can be legitimate grounds for denying these religious groups protections under anti-discrimination legislation and for denying them government funding. The mere provision of public funds should not be a factor in determining whether the State should provide a particular type of support to a group, rather it should be one of the possible results that may occur if the resolution of the issue is in favour of the State supporting the group.

The central issue should be what involvement, if any, the State should have in supporting or limiting the operation of a group. If the State considers it appropriate to support a group, then a particular type of support – such as financial assistance – should not in itself be understood as an argument against additional State support—such as the provision of protections under anti-discrimination legislation for employment decisions to allow the group to protect its identity.

Conclusion

If enacted the parliamentary model threatens to fundamentally undermine the operation of many religious schools, religious universities and other religious organisations. The amended laws may require a school to use language that affirms an emotional understanding of sexual identity preferred by a transgender student and prevent single sex schools from being able to exclude transgender individuals. The laws may also make it unlawful for religious organisations to teach their religious beliefs including that sexual activity can only ethically occur within a valid marriage and that sexual identity is determined by our biology not our emotions. They could also require religious schools to teach material or allow external programs to be run in their school even if the information presented contradicts the school’s religion.

Some may argue that these issues are unlikely to arise as they have not occurred in jurisdictions such as Tasmania and South Australia, which do not allow religious schools to exclude or impose any detriment on students on the basis of attributes such as gender identity or sexuality. However, it is only recently that issues involving gender identity have become matters of substantial national interest and same-sex marriage was only introduced in 2017. This changed cultural context could easily lead to religious schools being increasingly challenged in these jurisdictions. The example of Archbishop Porteous subjected to a vilification complaint for publishing a pamphlet advocating traditional marriage is particularly relevant. Few would have predicted that the Tasmanian Anti-Discrimination Act could have been used to support a vilification complaint against Archbishop Porteous for distributing a pastoral letter on marriage until an activist decided to rely on the law to make a complaint.

The Expert Panel model is clearly superior to the parliamentary model not just on the basis of religious liberty but critically also on the basis of equality. Parliamentarians need to recognise that equality claims can be made in support of both models and that a failure to ensure anti-discrimination laws appropriately regulates religious schools will violate, rather than promote, equality. Those claiming that religious schools that adopt traditional views of sexual identity and sexual ethics are harming their students need to provide better evidence to support their views. Anecdotal evidence may be helpful, but the lack of quality empirical studies is a major problem. Similarly, the view adopted by some that this is a major social crisis is undermined by the lack of evidence of student abuse despite the ease with which the more than 1.2 million students at religious schools could obtain such evidence if such abuse were occurring.

Despite the major problems with the parliamentary model it appears likely that this model or something similar will be enacted considering the substantial support that it received from Labor, Greens, Liberal and National politicians (even if last year they were unable to resolve some minor disagreements). Considering these four political parties are committed to legislation that undermines religious liberty, equality and many other human rights concerned Australians should ensure that they vote for other political parties that are clearly dedicated to ensuring our government respects human rights.

[1] Philip Ruddock et al, Religious Freedom Review — Report of the Expert Panel (18 May 2018) <https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf> 69.

[2] As mentioned, the amendments if enacted would affect not just religious schools but also religious universities, religious bodies provide education and even Churches and other houses of worship. However, for the sake of brevity only religious schools will be mentioned for the remainder of the article.

[3] For the text of the proposed amendments and accompanying Explanatory Memorandum see Parliament of Australia ‘Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018’ <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1162>.

[4] Philip Ruddock et al, Religious Freedom Review — Report of the Expert Panel (18 May 2018) <https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf> 69.

[5] For a more detailed discussion about the problems that can be created when Parliament adopts an ambiguous court enforced test for assessing the appropriateness of the decisions of religious schools see the discussion about the limitation of an ‘inherent requirements’ test in Greg Walsh, Religious Schools and Discrimination Law (Central Press, 2015) 82-138.

[6] Philip Ruddock et al, Religious Freedom Review — Report of the Expert Panel (18 May 2018) <https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf> 69.

[7] Ibid.

[8] Jewel Topsfield and Michael Koziol, ‘Catholic schools say they don’t discriminate on sexuality’ (10 October 2018) The Sydney Morning Herald <https://www.smh.com.au/politics/federal/catholic-schools-say-they-don-t-discriminate-on-sexuality-20181010-p508vp.html>.

[9] Greg Craven, ‘Deliver us from hostility to freedom of faith’ (13 October 2018) The Australian <https://www.theaustralian.com.au/news/inquirer/deliver-us-from-hostility-to-freedom-of-faith/news-story/54e3144343bedb0840bc0f909c3194fc>.

[10] Joe Kelly, ‘Secular rules shouldn’t apply to church schools, Anglican Archbishop Glenn Davies says’ (15 October 2018) <https://www.theaustralian.com.au/national-affairs/education/secular-rules-shouldnt-apply-to-church-schools-anglican-archbishop-glenn-davies-says/news-story/b006356bedf81800d143c1acef2b45bb>.

[11] The right to equality is not the only consideration relevant to determining which of the two models identified (or any other proposed model) should be accepted. Other relevant considerations include freedom of association, freedom of expression, parental rights, multiculturalism, privacy and the financial and non-financial costs incurred by complainants, religious schools and the government under the different models. For a discussion of the relevance of these consideration in the context of the related issue regarding how the employment decisions of religious schools should be regulated under anti-discrimination legislation see Greg Walsh, Religious Schools and Discrimination Law (Central Press, 2015) 161-211.

[12] Sir Hersch Lauterpacht, An International Bill of the Rights of Man (Columbia University Press, 1945) 115 quoted in John Tobin, ‘Should Discrimination in Victoria’s Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance’ (2010) 36(2) Monash University Law Review 16, 31 n 83.

[13] Nazila Ghanea, ‘Religion, Equality, and Non-Discrimination’ in John Witte Jr and M. Christian Green (eds), Religion and Human Rights: An Introduction (Oxford University Press, 2012) 204, 204.

[14] [2009] VCAT 1869 [1], [106]-[107].

[15] For a discussion of the importance of religious schools to religious communities and the related topic of the importance of the mission fit of employees at religious schools see Greg Walsh, Religious Schools and Discrimination Law (Central Press, 2015) 27-33, 88-113.

[16] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 26 (emphasis added).

[17] International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) art 2(2) (emphasis added). See also American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) arts 1, 24; African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) arts 3, 19; above n  art 2; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, UN GAOR, 47^th sess, 92^nd plen mtg, Supp No 49, UN Doc A/47/49 (18 December 1992) arts 2–4.

[18] Anti-Discrimination Act 1977 (NSW) s 20A(3).

[19] Ibid s 20A(3).

[20] Ibid s 34A(3).

[21] Equal Opportunity Act 2010 (Vic) s 27.

[22] Australian Christian Lobby, Submission No 92 to the Commonwealth Attorney-General’s Department, Inquiry Into The Consolidation of Commonwealth Anti-Discrimination Laws, January 2012, 6.

[23] Christian Education South Africa [2000] 4 SA 757 (Constitutional Court) [42].

[24] Iain Benson, ‘Taking Pluralism and Liberalism Seriously: the Need to Re-understand Faith, Beliefs, Religion and Diversity in the Public Sphere’ (2010) 23 Journal of the Study of Religion 17, 31.

[25] Australian Bureau of Statistics, Students (3 May 2012) <http://www.abs.gov.au/ausstats/abs@.

nsf/Lookup/4221.0main+features302011>.

[26] Ibid.

[27] Carolyn Evans and Beth Gaze, ‘Discrimination by Religious Schools: Views From The Coal Face’ (2010) 34

Melbourne University Law Review 392, 409–11.

[28] Ibid 410.

[29] Lynne Hillier, Alina Turner and Anne Mitchell, ‘Writing Themselves in Again: 6 Years On—The 2nd National Report on the Sexuality, Health & Well-being of Same Sex Attracted Young People in Australia’ (Australian Research Centre in Sex, Health & Society, 2005) <http://www.glhv.org.au/files/writing_themselves_in_again.pdf>. See also Lynne Hillier et al, ‘Writing Themselves In 3— The Third National Study on the Sexual Health and Wellbeing of Same Sex Attracted and Gender Questioning Young People’ (Australian Research Centre in Sex, Health & Society, 2010) < https://www.glhv.org.au/sites/default/files/wti3_web_sml.pdf>.

[30] Ibid 5–9.

[31] Ibid 11, 76–8.

[32] Ibid ix.

[33] Victorian Gay & Lesbian Rights Lobby, ‘Submission to SARC re Equal Opportunity Bill 2010’ (2010) <http://equallove.org.au/submissions/vglrl-submissions/item/vglrl-submission-to-sarc-re-equal-opportunity-bill-2010> 3–4.

[34] Ibid.

[35] Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Exceptions and Exemptions to the Equal Opportunity Act 1995 – Options Paper (2009) 123-4.

[36] John Tobin, ‘Should Discrimination in Victoria’s Religious Schools Be Protected? Using the

Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance’ (2010)

36(2) Monash University Law Review 16, 34 (citations omitted).

[37] Peter Norden, ‘Not So Straight—a National Study Examining How Catholic Schools Can Best

Respond to the Needs of Same Sex Attracted Students’ (Ignatius Centre for Social Policy and Research,

2006) <http://www.nordendirections.com.au/presentations/NSS.pdf>.

[38] Ibid 16–7.

[39] Ibid 21.

[40] Ibid 26, 32.

[41] Ibid 44­–55.

[42] Lynne Hillier, Alina Turner and Anne Mitchell, ‘Writing Themselves in Again: 6 Years On—The 2nd National Report on the Sexuality, Health & Well-being of Same Sex Attracted Young People in Australia’ (Australian Research Centre in Sex, Health & Society, 2005) <http://www.glhv.org.au/files/writing_themselves_in_again.pdf>.

[43] Education Act 1990 (NSW) s 47(g)(i).

[44] Teaching and Educational Standards NSW Board of Studies, Registered and Accredited Individual Non-government Schools (NSW) Manual (2014) 33–34.

[45] Education Act 1990 (NSW) ss 59(1)–(3), 65(1)–(3).

[46] Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Exceptions and Exemptions to the Equal Opportunity Act 1995 – Options Paper (2009) 128. Note the failure of the Committee to affirm that the right to equality protects the ground of religion and that the protections could be justified on the basis that they are necessary to protect equality rather than being ‘exceptions from equality rights’.

[47] Margaret Thornton, ‘Balancing religion and rights: the case against discrimination’, The Sydney Morning Herald (Sydney), 4 October 2009 <http://www.smh.com.au/opinion/society-and-culture/balancing-religion-and-rights-the-case-against-discrimination-20091003-gh9y.html>.

[48] Reid Mortensen, ‘A Reconstruction of Religious Freedom and Equality: Gay, Lesbian and De Facto Rights and the Religious School in Queensland’ (2003) 3(2) Queensland University of Technology Law and Justice Journal 320, 331 (citations omitted). For a general discussion of the significance of government financial support in determining how anti-discrimination legislation should regulate religious organisations see Jeff Spinner-Halev, ‘Discrimination within Religious Schools’ (2012) 1(1) Journal of Law, Religion & State 45.

[49] Productivity Commission Steering Committee for the Review of Government Service Provision, ‘Report on Government Services 2013’ (2013) <http://www.pc.gov.au/__data/assets/pdf_file/0005/121784/government-services-2013-volume1.pdf> 4.5.

[50] Marilyn Harrington, ‘Australian Government Funding for Schools Explained’ (Background Note, Parliamentary Library, Parliament of Australia, 2013) <http://apo.org.au/sites/default/files/docs/ParliamentaryLibrary_AusGovFundingforSchools_March2013.pdf> 33.

[51] The 2011 Census found that 61% of the population identify as Christian, 2.5% as Buddhist, 2.2% as Muslim, and 1.3% as Hindu with the remainder of the population identifying with another religion, no religion or declining to answer the question in the Census: Australian Bureau of Statistics, 2011 Census reveals Hinduism as the fastest growing religion in Australia (21 June 2012) <http://www.abs.gov.au/websitedbs/censushome.nsf/home/CO-61>.

[52] Anglican Diocese of Sydney, Submission No 178 to the Commonwealth Attorney-General’s Department, Inquiry Into The Consolidation of Commonwealth Anti-Discrimination Laws, 2 February 2012, 15.