Explainer: Religious discrimination in schools

Explainer: Religious discrimination in schools

Kids in schools should be focusing on classes, homework and building friendships, not living in fear of mistreatment because of who they or their families are.

The Human Rights Law Centre has been working with the Equality Campaign and LGBTI community organisations to advocate for the removal of outdated exemptions from anti-discrimination laws which allow religious schools to expel LGBT students and fire LGBT teachers.

STUDENTS

Can religious schools expel lesbian, gay, bi or trans students?

It’s complicated.

Federal anti-discrimination laws are different from state and territory anti-discrimination laws. When a person is discriminated against, they can choose to use the state and territory laws or the federal laws.

Under federal laws, religious schools can legally turn away a student or discriminate against students on the basis of their sexual orientation or gender identity provided that:

  1. the school is conducted in accordance with religious doctrines, tenets, beliefs or teachings, and

  2. the discrimination is in good faith to avoid injury to religious sensitivities of their religious followers.

There are different rules in different states and territories:

  • Queensland and Tasmania do not allow religious schools to discriminate against LGBT students.

  • The Australian Capital Territory and Western Australia allow religious schools to discriminate against LGBT students provided the discrimination conforms to religious doctrines, tenets, beliefs or teachings and is in good faith to avoid injury to religious sensitivities of followers. However, Western Australia does not allow discrimination in a manner that discriminates against a particular class or group of people who are not followers of the school’s religion.

  • Victoria allows religious schools to discriminate against LGBT students provided the discrimination conforms to religious doctrines, beliefs or principles or is reasonably necessary to avoid injury to religious sensitivities of followers.

  • South Australia allows religious schools to discriminate against lesbian, gay, bi, trans and intersex students provided the practice conforms to religious precepts or is necessary to avoid injury to religious sensitivities of followers.

  • The Northern Territory allows religious schools to discriminate against trans students in all circumstances, but only against same-sex attracted students for acts done “as part of any religious observance or practice”.

  • New South Wales allows private schools to discriminate against LGBT students (not just religious schools).

Can religious schools that receive taxpayer funding discriminate against LGBT students?

Yes, religious schools that receive government funding can still discriminate against LGBT students

Can religious schools discriminate against students because their parents are LGBT?

Under federal law, religious schools can also discriminate against students because of their parents’ sexual orientation or gender identity. For example, religious schools can expel a student because their parents are in a same-sex relationship.

Can religious schools discriminate against other students?

Under federal law, religious schools can also discriminate against students on the basis of sex, relationship status or pregnancy.

What did the Religious Freedom Review report recommend?

In October 2018, sections of the Religious Freedom Review report were leaked by various media outlets.

The 20 recommendations leaked by the Sydney Morning Herald indicate that the report recommends that schools should retain the ability to discriminate against LGBT students.

However, the report recommended that religious schools who seek to discriminate against LGBT students must set out their position in a publicly available policy which is provided to current and prospective students and their parents.

The full report is not available, but the wording of the recommendations and comments made by the review’s chair former Attorney-General Phillip Ruddock, indicate that this recommendation was intended to increase transparency to ensure that students and parents were aware of any policies which would seek to discriminate against LGBT students.

What commitments have politicians made so far?

On 12 October 2018, Federal Opposition Leader Bill Shorten proposed to work with the Australian Government towards a bipartisan commitment to ensuring religious schools will not be able to expel students on the basis of their sexuality.

On 13 October 2018, Prime Minister Scott Morrison made a public commitment for the Australian Government to table a bill within weeks to remove the ability of religious schools to expel gay students on the basis of their sexuality.

On 17 October 2018, Greens Senator Richard di Natale tabled the Discrimination Free Schools Bill 2018 (Cth) in the Senate to remove exemptions for religious schools to discriminate against students on the basis of their sex, sexual orientation, gender identity, relationship status or pregnancy.

What will the leaked Government bill do?

On 25 October 2018, a copy of the Sex Discrimination Amendment (Protecting students) Bill 2018 was published in the media. The bill would remove all direct discrimination against students currently permitted under federal law (e.g. expelling a student because they are gay).

Anti-discrimination law also prohibits indirect discrimination. Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute (e.g. requiring all students to pass a strength test would tend to disadvantage girls).

The bill would introduce to two further ‘matters’ to be taken into account when assessing whether conduct is reasonable.

(a) whether the condition, requirement, or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed; and

(b) whether, in imposing, or proposing to impose, the condition, requirement or practice, the educational institution has regard to the best interests of the student.

The burden of proof will be on the school to provide evidence to satisfy the Court that the conduct was ‘reasonable’ in the circumstances.  

The Religious Freedom Review report recommended that the best interests of the student be the ‘primary consideration’ but the Government bill only requires the educational institution to ‘have regard to’ the best interests of the child.

The Religious Freedom Review report also recommended that schools be required to publish policies in relation to the matter in question. This requirement is absent from the bill.

The bill does not clarify that religious schools will not be able to continue to take advantage of the broad exemption available to ‘bodies established for religious purposes’ in section 37.  

 What do LGBTI organisations want?

LGBTI community organisations have called for all discrimination by religious schools against LGBTI students to be banned federally and in different states and territories.

On 24 October 2018, a group of advocates from Parents of Gender Diverse Children, Rainbow Families Victoria, the Equality Campaign and the Human Rights Law Centre met with politicians in Canberra to highlight the importance of protecting trans and gender diverse children from discrimination in schools.

TEACHERS

Can religious schools fire lesbian, gay, bi or trans teachers?

Religious schools can discriminate against LGBT teachers in hiring and firing decisions in every state and territory except Tasmania.

What did the Religious Freedom Review report recommend?

The Religious Freedom Review report recommended that religious schools who seek to discriminate against LGBT staff must set out their position in a publicly available policy which is provided to current and prospective employees.

The full report is not available, but the wording of the recommendations and comments made by the review’s chair former Attorney-General Phillip Ruddock, indicate that this recommendation was intended to increase transparency to ensure that teachers and other staff members were aware of any policies which would seek to discriminate against them.

What commitments have politicians made so far?

On 17 October 2018, Greens Senator Richard di Natale tabled the Discrimination Free Schools Bill 2018 (Cth) in the Senate to remove exemptions for religious schools to discriminate against staff members on the basis of their sex, sexual orientation, gender identity, relationship status or pregnancy under the Sex Discrimination Act 1984 (Cth). The Bill also contains amendments to remove discrimination by religious educational institutions under the Fair Work Act 2009 (Cth) on the basis of sexual orientation (the Fair Work Act does not currently prohibit employment related discrimination based on gender identity or sex characteristics).

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