Author: Editor

The ability of religious educational bodies to lawfully discriminate on the grounds of sexuality rose to public prominence when sections from the report of the Religious Freedom Review were disclosed in the media. The headlines singled out the possibility of “gay kids” being expelled. The legislation in question deals with discrimination in general terms, rather than specific actions, such as expulsion, and covers attributes including sexual orientation, gender identity (as distinct from sex) and intersex status. Thus, the ability to legally ‘expel’ a child for being ‘gay’ is one small example of a broader right to discriminate on the grounds of sexuality, gender identity and intersex status. 

Media leaks brought the public’s attention to ‘exemptions’ for religious bodies found in federal discrimination law (in this case the Sex Discrimination Act), and which are also available in most states and territories. In the immediate aftermath of the leaks both the government and Opposition committed to repealing exemptions that would permit religious schools to ‘expel’ or turn away “gay students”. 

During the last sitting of Parliament in 2018, the Greens and Labor Parties introduced legislation to remove the ability to discriminate; while the government also tabled a bill. Labor’s Bill can be viewed here. The government’s Bill can be viewed here. 

The Principal’s letter proposes removing religious exemptions only in relation to the attributes of sexual orientation and gender identity. These attributes – and related exemptions – were added to the Sex Discrimination Act (SDA) in 2013. The letter does not address exemptions beyond those added in 2013.  

Religious educational bodies are also covered by various state andterritory anti-discrimination laws, each with their own types of exemptions. A claimant may lodge a complaint under relevant state, territory or federal laws.

Question: Will single-sex schools continue to be able to only enrol students based on sex?

Answer: Yes – under provisions un-related to s38. See SDA s21(3)(a)

Question: Will religious schools be able to hire staff to perform religious duties or functions, such as chaplains and those without ‘religious’ titles, such as a maths teacher expected to lead bible devotions?

Answer: Yes – under ‘the selection or appointment of persons to perform duties or functions for the purposes of or in connectionwith, or otherwise to participate in, any religious observance or practice’.SDA 37(1)(c)

Question: Can Christian schools still expect students to participate in religious activities such as chapel?

Answer: Participation in the normal life of the school, including chapel and so on, is unaffected when generally applied and not involving irrelevant distinctions based on a person’s gender identity or sexuality.

Question: Will a faith-based school be able to require staff to support its faith tradition and not bring its reputation or beliefs into disrepute?

Answer: General employment law contracts give employers potentially extensive scope to require employees to act consistently with, and uphold, the reputation and values of their employer. Employers only need to apply the terms of such contracts without discriminating against the protected attributes.

Question: Does sex education in religious schools have to address same-sex relationships?

Answer: Schools have broad discretion to teach appropriate content in sex education. If the content of such teaching somehow targeted individuals based on sexuality or gender identity – which led to a discrimination complaint – a court would ultimately decide if it was ‘reasonable’, taking into account the religious beliefs of the school and facts of the complaint.

Question: Will schools still be able to enrol students / hire staff from their own faith tradition?

Answer: Yes. ‘Religion’ is not currently a protected attribute under federal discrimination law – so there is no requirement for an exemption.  Most states do list religion as a protected attribute and have exemptions to allow, for instance, a Jewish school to preference Jewish students or staff. Should religion become a protected attribute federally it is extremely likely that the state-based models would be replicated.

Summary: The effect of removing exemptions covering sexuality and gender identity is that schools would not be able to unlawfully discriminate againstthese attributes. Pursuing a school’s faith-based mission, ministries and engagingin faith-based activities remain unaffected.