The issue of discrimination by religious institutions can appear complex. Ensuring we protect religious freedom while upholding the right to non-discrimination requires balance and nuance.
But some things are clear. The treatment of LGBT students in religious schools is one of them. The overwhelming majority of Australians (74% according to a recent poll) do not support discrimination against students on the grounds of their sexual orientation, gender identity or relationship status.We know where we draw the line: discrimination has no place in our schools.
Have our politicians heard the message? There is now broad cross-party agreement that LGBT students in religious schools should be protected against discrimination: the Morrison government, Shorten opposition, the Greens and the Centre Alliance have all committed to doing so.
But there remains disagreement about how this should be done. Aswe enter the final days of parliamentary sittings for the year, it is still unclear whether this much-needed reform will pass and, if so, whether any change will be undermined by further unnecessary amendments.
There is a simple way through this: one rule for every school.
We have heard a lot in debate about the need for religious schools to be able to uphold their ‘values’ and ‘ethos’. This is fair enough, but it doesn’t require special rules for religious schools.
Reasonable conditions imposed on students, such as conditions to uphold the ethos and values of a school, are perfectly lawful under the law as it stands and would remain lawful even if the exemptions for religious schools are removed.
What religious schools would be unable to do, along with all schools, is impose unreasonable conditions, requirements or practices that have, or are likely to have, the effect of disadvantaging LGBT students. Such conduct would amount toindirect discrimination.
As it stands, the primary bill that is up for debate is the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, introduced by Penny Wong in the Senate on 29 November.
This Bill does what needs to be done with simplicity and clarity. It removes both the specific exception which allows religious schools to discriminate against LGBT students (section 38(3) of the Sex Discrimination Act 1984(Cth)) as well as ensuring the general exception in section 37(1)(d) doesn’t apply to religious education.
Unfortunately, the Government’s proposed amendmentsto this Bill add complexity and confusion. Most troublingly, they seek to carve out an exemption for ‘teaching activity’. This would allow discrimination – both direct and indirect – by teachers in classrooms of religious schools where they are acting ‘in good faith in accordance with the doctrines, tenets, beliefs or teachings’ of the religion.
This is not the discrimination-free zone that Australians are demanding or to which children should be entitled.
The Government is also proposing changes to the test for ‘indirect discrimination’ that would create more problems than they purport to solve. The changes would alter the test of ‘reasonableness’ as it applies to religious schools.
A group of legal experts, including leading academics, the Public Interest Advocacy Centre and Human Rights Law Centre, wrote to the Attorney-GeneralChristian Porter in November to counsel against changes of this type and emphasise that the existing test for indirect discrimination already allows all schools to impose reasonable conditions or requirements on their students.
Adopting these amendments would undermine the existing test for indirect discrimination, create uncertainty and allow religious schools to treat LGBT students unfairly despite the removal of exemptions elsewhere in the Sex Discrimination Act.
All students have the right to grow, and to learn, in a supportive environment.
Commonwealth Parliament has an unprecedented opportunity to pass laws this week to make inclusive classrooms a reality for the start of the 2019 school year.
There is no need for this legislation to be deferred, or referred to yet another Committee.
It’s clear what the public wants. The Government, Opposition, Greens, Centre Alliance and most cross-benchers have said that they are on board. The next two days will reveal whether they are up to the task.