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Law Centre has been working with Equality Australia and LGBTIQ+ community organisations to advocate for the removal of outdated exemptions from anti-discrimination laws which allow religious schools to expel LGBTQ students and fire LGBTQ teachers.

Can religious schools discriminate against LGBTQ students and teachers?

It depends on where you live in Australia.

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 LGBTQ students.

  • The Australian Capital Territory and Western Australia allow religious schools to discriminate against LGBTQ 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 LGBTQ 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 LGBTQ students (not just religious schools).

Can religious schools that receive taxpayer funding discriminate against LGBTQ students and teachers?

Yes, religious schools that receive government funding can still discriminate against LGBTQ students and teachers.

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

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 or employees?

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

What did the Religious Freedom Review report recommend?

The Religious Freedom Review report recommends that schools should retain the ability to discriminate against LGBTQ students, teachers and staff. However, the report recommended that religious schools who seek to discriminate against LGBTQ students and staff must set out their position in a publicly available policy which is provided to current and prospective students and their parents, and staff.

What is the current status of reforms?

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.

In November 2018, the majority report of the Senate Legal and Constitutional Affairs References Committee recommended that relevant federal laws be amended to prohibit discrimination against students on the grounds of the protected attributes in the Act.

In December 2018, the Australian Government committed to refer consideration of religious exemptions in existing federal, state and territory anti-discrimination laws to an Australian Law Reform Commission inquiry.

In February 2019, the majority report of the Senate Legal and Constitutional Affairs Legislation Committee also recommended that the issue of religious exemptions in schools be referred to the Australian Law Reform Commission for full and proper consideration.

The Australian Law Reform Commission’s Review into the Framework of Religious Exemptions in Anti discrimination Legislation has released its Terms of Reference and a background paper. The ALRC will release a Discussion Paper on 2 September 2019, and submissions will be due by 15 October 2019.

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