The Labor Party’s proposed amendments to the Sex Discrimination Act, currently before the Senate, will severely limit the freedom of religious schools and religious adult education institutions which train chaplains, missionaries and in Australia. 

Summary

Contrary to the recommendations of the Ruddock Panel on Religious Freedom, the ALP (Senator Wong) has introduced a Bill into the Senate to amend the Sex Discrimination Act to severely limit the freedoms of:

• religious schools and parents who send their children there
• religious adult colleges and training institutions for missionaries, chaplains and religious workers (including theological colleges); and
• all religious bodies like churches, mosques, synagogues and temples to provide education services to their members and the public through sermons, religious education classes for children, youth or adults and courses on issues like marriage, family and relationships.

The Bill will be debated and decided in Parliament in the week starting 3 December 2018 and concerned persons should contact their federal MPs and Senators as a matter of urgency.

The ALP Bill is intended to stop religious schools from expelling gay and lesbian students because of their sexual orientation. Religious schools actually don’t do this. If that was all the Bill did there would be no issue – it would simply remove a hypothetical risk.

But the Bill goes much further. It restricts the freedom of religious schools, adult colleges and religious bodies to teach and model the values of the religion in any way that can be perceived to be discriminatory against people on the grounds of their gender, sexual orientation, relationship status or gender identity. There is the problem. Many (not all) religious schools, colleges and religious bodies hold and teach and model views about the morality and wisdom of types of sexual behaviour, family structures and the nature of gender which are very different to secular progressive activists.

For example, those religious schools, colleges, mosques, churches and temples teach and set behavioural standards for students or congregations based on the view that human flourishing is promoted by a divine design that sexual relations should be limited to male-female marriage and that there are only two genders male and female. But that teaching and those behavioural polices can be treated as discriminating against gay and lesbian people, heterosexual people who have sex outside marriage and people who identify as gender-fluid. If the Bill is enacted, such teaching and polices will be subject to anti-discrimination complaints and lawsuits.

In a pluralist society different groups hold and teach and live by different views on these issues.  4.8 million Australians (38.4%) voted against same sex marriage. You may or may not agree with them but they have as much right to hold that view, live by it and have their children educated in it as those who voted for same sex marriage. If we do not accommodate a diversity of worldviews and life choices based on them for individuals and voluntary associations of individuals, we are not a pluralist society.

We rightly have anti-discrimination laws to stop governments, supermarkets and insurance companies refusing to supply services to the public on the grounds of their gender or sexual orientation or gender identity. That is about equality of opportunity for all to participate in the economy and the public square.

But anti-discrimination law goes way beyond its proper boundaries when it dictates to voluntary associations of people what to think, what to teach and what behavioural standards to adopt. Religious bodies and religious schools and colleges are one type of voluntary association dedicated to promoting and modelling particular views of human flourishing. No parent is forced to send their child to a religious school or keep them there. No-one is compelled to join or remain in a religious body.

That is why anti-discrimination laws all contain exemptions or balancing provisions to allow religious bodies and religious schools to organise their teaching and behavioural standards in accordance with their religious beliefs and values on human flourishing.

But the proponents of the ALP Bill appear to believe the State knows better and should force its better ways onto religious people, religious schools and religious bodies. The Bill would remove or limit the current exemptions in the Sex Discrimination Act so that religious schools, colleges and religious bodies will be subject to anti-discrimination complaints and lawsuits when they teach or set behavioural standards which are contrary to secular liberal views on sexual relations and gender identity.

Separation of religion and State works both ways. Religion should not interfere in the running of the State and the State should not interfere in the teaching of religious groups and the teaching and modelling of religious values in their schools. On disputed matters such as sexual morality and family structure, the State should not be telling religious bodies or religious schools whether their religious values and their policies to uphold them are “reasonable” in the eyes of the State though an anti-discrimination commission or a court..

The Coalition has proposed some amendments to the ALP Bill which will reduce the Bill’s restrictions on freedoms but will still leave religious schools and colleges exposed.

Professor Neil Foster has an excellent blog on the detail of the amendments and the Bill.

The better course is to release the Ruddock Panel Report on Religious Freedom and have a full public debate and only then develop legislative responses.

1. Religious Schools and adult training colleges are exposed by the proposed removal of s.38(3) of the Sex Discrimination Act

Section 21 of the Sex Discrimination Act prohibits educational authorities from discriminating against staff or students on the grounds of their gender, relationship status, sexual orientation or gender identity.

Section 38(3) is an exemption for religious educational authorities which operate an educational institution in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed. The exemption allows them to discriminate against a student or applicant  on the ground  of that person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy but only if the discrimination is in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. An example would be a school rule that a student should not engage in sexual activity or promote the value of a sexual activity contrary to the teachings of the religion.

The types of discrimination exempted by section 38(3) are:

(a)  refusing to admit a person as a student and

(b) denying the student access, or limiting the student’s access, to any benefit provided by the educational authority;

(c)  expelling the student; or

(d)  subjecting the student to any other detriment

The ALP Bill would remove the exemption in s.38(3) and expose schools to direct and indirect discrimination claims.

The Coalition’s amendments would still remove s.38(3) and expose schools and colleges to direct discrimination claims but would put in place some better “reasonableness” protections for indirect discrimination claims (claims based on the application of a publicly available general school policy) – a point made by the dissenting Coalition Senators in the Legal and Constitutional Committee report tabled on 26 November 2018. The Coalition amendments would also introduce a right of religious schools and colleges to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.

The Coalition amendments are welcome but still leave schools and colleges exposed to discrimination complaints on specific decisions about student behaviour not covered by a published general policy,

As we wrote in our submission to the Committee, these exemptions serve a useful purpose of enabling religious schools and adult education institution to protect their religious values and ethos. But their wording is clunky and could be refined or even replaced by a positive legal right of religious schools to make decisions and set policies which uphold the teachings and values of the religion.

Until a party proposes that positive right, the exemptions will still be needed as the following examples show.

Big issues arise for discipline and values setting in religious schools, not just the hypothetical issue of expelling students purely for sexual orientation.

Taking away the exemption in section 38(3) means that if a religious school, acting on the basis of its religious beliefs:

• refuses permission for a sexually active student (straight or gay) or gender transitioning student to run a club or publish posters or webpages at the school advocating for sex outside marriage (straight or gay) or fluid gender ideology; or
• refuses permission for a same sex oriented student to take a same sex romantic partner to the school formal; or
• requires a male student who wishes to publicly identify as female and whose appearance is male and has not had sex reassignment or cosmetic surgery to use the male change rooms and toilets rather than the female ones, and to be addressed by the male pronoun;

the school is “subjecting the student to a detriment” on the grounds of relationship status or sexual orientation or gender identity and can be sued under s.21 of the Sex Discrimination Act.

The above decisions may present as a case of direct discrimination against the particular student. If the school had developed a general policy about school formals or student posters, some of these cases might present as a case of indirect discrimination but many of them will be direct discrimination cases.

Removing the exemption undermines the authority of the school to operate in accordance with the values of the religion and turns matters of school discipline into a complaint to the Human Rights Commission and lawsuits in the Federal Court.

Readers may or may not agree with any such decisions by a religious school. But the key question is whether, in a pluralist democracy, a religious school should be free to make such decisions in good faith on the basis of its religious beliefs to uphold the values of the religion and the ethos of the school. It is not compulsory to attend or remain at a religious school – that is a voluntary choice for parents and older students and the public school system is open to all. The values and ethos of a religious school are one of the reasons parents (and grandparents) choose religious schools and pay fees on top of their taxes so their children can attend.

Senator Wong states that under the Bill the school can still defend its general policies from claims of indirect discrimination in a tribunal or court on the grounds that the policy is “reasonable” under section 7B . Even if some of these cases are indirect discrimination based on a general school policy rather than direct (and only some of them will be) so that the school could argue that its policy is “reasonable”, that is still a major reduction in religious freedom of religious schools and the parents who pay to send their children there.

Currently the Act, as enacted by both Coalition and ALP governments, allows a religious school that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, to engage in an act or practice which discriminates against another person only if the discrimination is in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. 

The beliefs and teachings of the religion and injury to the religious susceptibilities of adherents are more or less objectively ascertainable and decide the issue – these criteria don’t give Anti-discrimination Commissions and courts much scope to impose their own views about the reasonableness of religious beliefs on religious schools. But the section 7B reasonableness test requires Anti-discrimination Commissions and courts to determine whether in their opinion the disadvantage to a student is proportionate to the result sought by the school which imposes the policy.

In this broad delegation of decision-making discretion to commissions and courts under s.7B the beliefs of the religion and injury to adherents of the religion become just one of many factors. So the religious freedom of religious schools becomes subject to what a secular anti-discrimination commission or court thinks is reasonable and proportionate based on secular reasoning.

See also Professor Neil Foster’s post on this.

2. The exemption in section 38(3) which the ALP Bill removes applies not just to schools but to all educational institutions conducted in accordance with religious beliefs. These include training colleges for missionaries, chaplains, counsellors, youth workers or pastoral care workers and general adult religious education and theological colleges.

“Educational institution” is defined to mean a school, college, university or other institution at which education or training is provided.

Removing section 38(3) means that a religious college or training institution for missionaries, chaplains, counsellors, youth workers or pastoral care workers and general adult religious education will be subject to lawsuits if it positively selects for students whose relationship status and sexual expression (whether straight or gay) model the values of the religion or if it requires students not to advocate for sexual expression (whether straight or gay) which is contrary to the values of the religion.

The only exemption left will be for training of persons to become ordained ministers of religion. But it is perfectly reasonable for religious training institutions which train people who will be ambassadors for the religion (like missionaries, chaplains, youth workers and counsellors) to require those people to conform to the religion’s values on relationship status and sexual expression.

Bodies like theological colleges (e.g. Salvation Army Training College, Islamic Sciences and Research Academy, Church Missionary Society Training College) will all have to comply with the Sex Discrimination Act’s position on relationships, sexual orientation and gender identity even if that it position is completely contrary to the foundational teachings of the religion (the only remaining exception will be for training persons to become ordained ministers of religion).

That would strike at the heart of religious freedom. A religious community should be entitled to train its future educators, youth workers, chaplains and missionaries in accordance with the values of the religion without having to cop lawsuits under the Sex Discrimination Act.

3. Education services provided by churches, mosques, temples and synagogues (not through educational institutions) will become subject to the Sex Discrimination Act under the ALP Bill’s proposed amendment to s.37(1)(d) of the Act

The ALP Bill will constrain religious freedom by removing exemptions in s.37(1)(d) for the acts and practices of any religious body like a church, mosque, synagogue or temple if the acts or practices are connected with the provision by the body of education.

Discrimination in the provision of services including education services (whether paid or unpaid) on the grounds of sex, relationship status, sexual orientation and gender identity is prohibited by s.22. Education services provided by the local church, mosque or synagogue or temple would seem to include instruction for ordinary members of the religion in the religion (e.g. Sunday school or other children’s or youth instruction in the religion, classes on the Koran or the Bible or on marriage or sexual relations). Sermons seem likely to be caught as “an act or practice connected with the provision by the religious body of education” under the proposed amendment to s.37 of the Sex Discrimination Act.

A religious body could discriminate in the provision of such education services (or the facilities through which they are provided) under s.22 of the Act in several ways:

(a) by the manner in which the religious body provides the other person with those services or makes those facilities available to the other person (e.g. the manner of the sermon or teaching is discriminatory because the content of the teaching based on sacred scriptures is critical of same sex marriage or of the behaviour of those having sex outside marriage (straight or gay) but not of other forms of sexual behaviour, or because the teaching criticises the idea and practice of gender transitioning.

(b) by refusing to provide a person with those services or to make those facilities available to the other persons (e.g. the religious body provides separate training on marriage, relationships and sexuality to men only and women only groups, or refuses to provide training on relationships to people known to be actively engaged in extramarital sex);

(c)  in the terms or conditions on which the religious body provides the other person with those services or makes those facilities available (e.g. the religious body requires attendees at the training to affirm that they are living godly lives in accordance with the teachings of the religion including on relationships and sexuality).

Conclusion

The ALP Bill severely limits the freedoms of:

• religious schools and parents who send their children there
• religious adult colleges and training institutions for missionaries, chaplains and religious workers (including theological colleges); and
• all religious bodies like churches, mosques, synagogues and temples to provide education services to their members and the public through sermons, religious education classes for children, youth or adults and courses on issues like marriage, family and relationships.

The Coalition’s proposed amendments improve but do not fix all the problems raised by this Bill. The Bill will be debated and decided in Parliament in the week starting 3 December 2018 and concerned persons should contact their federal MPs and Senators as a matter of urgency.