Following my previous post on this issue, press reports indicated that the Prime Minister is proposing that the Parliament urgently amend the provisions of s 38(3) of the Sex Discrimination Act1984 (Cth) which allow religious schools to expel students on the basis of sexual orientation. If this goes ahead, there is still a need to protect the legitimate interests of such schools in not seeing the religious ethos of the school undermined. In this post I want to suggest some ways that could be achieved.

I will assume readers interested in this area have read the previous post for background. As noted there, a concern that religious schools may have is that the school may want to cultivate and model a religiously based moral framework among students, which will be undermined if a student or students regularly and openly espouse moral values contrary to that religion. To take a far-fetched example to illustrate, a Muslim school may wish to counsel one of its students not to bring pork sandwiches for lunch or encourage other students to eat pork.

Of course, there is no legal prohibition on “food preference discrimination”, so that school would not face problems. But, to come to more realistic example, a Christian school committed to the view that sex should only take place between married persons, and that homosexual activity is contrary to God’s will, may wish to counsel a student not to celebrate a sexual relationship, and in particular a homosexual relationship, while at school. But such counselling may be impacted by s 21 of the SDA.

Section 21 relevantly provides:

           21  (1)  It is unlawful for an educational authority to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)  by refusing or failing to accept the person’s application for admission as a student; or

(b)  in the terms or conditions on which it is prepared to admit the person as a student.

(2)  It is unlawful for an educational authority to discriminate against a student on the ground of the student’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

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

(b)  by expelling the student; or

(c)  by subjecting the student to any other detriment.

(3)  Nothing in this section applies to or in respect of a refusal or failure to accept a person’s application for admission as a student at an educational institution where:

(a)  the educational institution is conducted solely for students of a different sex from the sex of the applicant…

Currently s 38(3) contains an exemption applying to religious schools from the operation of s 21, in its dealings with students.

If s 38(3) were to be simply repealed and not replaced by any other protection, a religious school which counsels a student against open advocacy for homosexuality might find itself accused of subjecting the student to a “detriment” under s 21(2)(c), or otherwise breach s 21. Of course, the Prime Minister’s concerns might be met without such a wholesale change to s 38(3), simply by explicitly clarifying that a student may not be “expelled” on the basis of their sexual orientation. But as the provision is fairly broad, it may be thought wise to redraft it so that it refers, not to inherent orientation as such, but to specific behaviour and conduct which might undermine a school’s ethos.

While it can be argued that, even as it stands, simply counselling someone about their behaviour does not amount to treating someone detrimentally on the basis of their orientation, it would be better to clarify this. If s 38(3) is as it stands is too broad (as noted previously, no Christian or other religious school is arguing for a right to exclude or expel or discipline students simply on the basis of their “orientation” as such), then it might be replaced with a narrower provision that recognises the need to allow a religious school to maintain its religious basis.

One option, for example, would be to make it clear that schools are entitled to set up “reasonable standards of dress, appearance and behaviour for students”. A provision to this effect is already contained in the Victorian Equal Opportunity Act 2010, s 42. This provision also requires the views of the local school community to be considered. The equivalent in the context of the SDA would be allowing the school to operate in accordance with its religious ethos.

So, s 38(3) might be replaced by something like this:

Possible new SDA 38(3) Nothing in s 21 renders it unlawful for an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, in connection with the provision of education or training, to set and enforce standards of dress, appearance and behaviour for students, so long as this is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This would allow a religious school to establish policies about student dress, appearance and behaviour that are consistent with its religious ethos, without being accused of contravening s 21. It would not support actions simply based on orientation alone. As already noted, it can be argued that in any case actions based on specific behaviour and conduct would not be unlawful even at the moment, but “for the avoidance of doubt” and litigation, it may be better to spell this out clearly, in a way which is analogous to that already done in the discrimination area at the State level.

In line with the Ruddock Panel recommendations, it would also be possible to add a requirement that this policy be clearly publicised to existing and prospective students and parents.

This proposal would not deal with any State legislation that currently allows religious school actions to be based on sexual orientation and the other criteria mentioned in s 21. That would be a matter that State legislators would need to consider. But it is suggested that this proposal may appropriately define the scope of s 38(3) of the Commonwealth SDA to allow it to deal more closely with the need to allow religious schools to take sensible actions to maintain their religious ethos.