Just before Christmas, a significant religious discrimination decision was handed down in the Western Australian State Administrative Tribunal. In HORDYK and WANSLEA FAMILY SERVICES INC [2022] WASAT 117 (23 December 2022), the Tribunal held that Mr and Mrs Hordyk had been indirectly discriminated against on the ground of their religious beliefs, when told by Wanslea Family Services that they were not suitable to be appointed as foster carers for children between 0 and 5 years. Their rejection came after they told Wanslea that as Christians who took the Bible seriously, “in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted” (from para [4]). Wanslea then terminated the process for assessment, and marked their application “assessed to not meet competencies”. The Tribunal found that these actions amounted to unlawful discrimination, and ordered payment of a modest award of damages ($3000 each) and removal of the annotation on the file. The decision is an important affirmation of rights of religious freedom.
The Facts
The Hordyks are evangelical Christians attending the Free Reformed Church of Australia (FRCA). They (and their church generally) are committed to the truth of the Bible, including its teaching that homosexual activity is contrary to God’s will for humanity. They have three young children of their own, and offered to provide short term foster care for children between birth and 5 years of age, as a service to the community.
Wanslea are a community group contracted to the State government to provide foster carers. Part of their role is to assess applications from those who volunteer for the role. In the assessment process they became aware of the Hordyk’s views about homosexual activity being sinful. The Tribunal commented:
During the assessment process, the Hordyks revealed, in answer to specific questions asked of them, that they held the view that the Seventh Commandment in the Old Testament of the Bible requires sexual relationships to take place only between a man and woman who are married and that other expressions of human sexuality are sinful. The Hordyks believe that same-sex relationships are sinful and that people who feel same-sex attraction must fight the sin in order to live in conformity with the Commandments. They informed Wanslea that, as a result of their beliefs, in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted. The Hordyks said they would have to end the placement of a foster child who continued to behave in that way. They qualified that statement by saying that they would not terminate the placement immediately but could not foster that child in the long term
Para [4]
These comments led to Wanslea refusing their application and, as noted, marking their file to say that they did not meet the “competencies” needed for foster parents. It was not suggested that there were any other matters of concern- the views about homosexual activity clearly formed the reason for the refusal. It is also worth noting that the Hordyks had specially asked that they only be allocated children up to the age of five (the age of their oldest child.) They conceded that in light of the policies of Wanslea they would not be suitable foster parents for older children who had clearly formed their views on sexual orientation issue.
In defending their decision, Wanslea asserted that it could not limit the age of children allocated to foster parents- that for an application to be successful a couple must be able to meet the relevant competencies for children of all ages. But the Tribunal concluded that in fact this assertion was false; that there were a number of examples of foster parents being approved who would only be allocated children of certain age:
We do not accept the evidence given by Wanslea’s witnesses that they approve only foster care applicants who they consider are capable of providing both a physically and emotionally safe environment for children of any age, and for every type of care. That evidence is not borne out of an examination of Wanslea’s List, the Department’s Foster Carer Directory itself and other evidence given by Wanslea’s staff
Para [128].
Sadly this was not the only example the Tribunal referred to where officers of Wanslea had given evidence which could not be believed. (See, for example, at [50]: “Ms Murray’s evidence was avoidant, defensive and crafted to cast events and decisions in the most favourable light for Wanslea.”)
For example, officers continued to assert that their decision not to approve the application was not based on the Hordyk’s religious beliefs, when it was apparent that in fact this was the case- see eg [156]. At one stage it was even asserted that Wanslea had “no views” on LBTGQI issues; the Tribunal rejected this claim:
Ms Murray’s evidence that Wanslea had no views on SOGI or LGBTQI+ issues was at odds, with the evidence to which we have referred above, which we find clearly established that Wanslea had a very clear view about the validity of all sexual orientations and gender identities.
Para [318]
Legal Issues
Western Australian law has detailed guidelines for decision-making in relation to children at risk, which are reviewed by the Tribunal. It also has legislation, the Equal Opportunity Act 1984 (WA) (“EOA 1984”), section 62 of which forbids discrimination in the provision of goods and services on the basis of (among other things) “religious conviction”:
Equal Opportunity Act 1984 (WA) s 6262 . Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s religious or political conviction —
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person
Discrimination is defined in the legislation (section 53) to include both “direct” religious discrimination (where religion is clearly a ground for decision-making), and also “indirect” discrimination (where a condition or requirement is imposed which, on its face, seems not to be based on religion, but which will have a significantly more serious detrimental impact on religious believers than on other members of the community).
The Hordyks alleged that they had been discriminated against on the basis of their religious convictions, when Wanslea refused to provide the service of approving them for appointment as foster parents, or by adding a “term or condition” to the assessment process which required them not to hold their religious views about homosexual activity. This involved the Tribunal needing to decide (1) whether the act of approving applicants as foster parents was provision of a “service”; (2) whether the denial of approval for the Hordyks was directly or indirectly based on their religious convictions; (3) if this was “indirect” discrimination, whether this decision was “reasonable”. (There were some other issues in the case, which I have not noted here; they were also resolved in favour of the Hordyks.)
(1) Was foster parent approval a “service”?
The Tribunal had to decide this as a preliminary question. The High Court has previously ruled that not every approval provided by a government body is a “service”: see IW v City of Perth [1997] HCA 30; 191 CLR 1.
In this case, however, the Tribunal ruled that Wanslea were providing a “service”. The definition of that term in the EOA 1984, included the following:
(e) services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child’s adoption, under the Adoption Act 1994 ), a government or public authority or a local government body
EOA 1984, s 4(1), definition of “services”
Approval of foster parents was pretty clearly the sort of service provided by government (though here it had been “out-sourced” to a community agency). In addition, though the Tribunal did not place a lot of weight on this, the explicit exclusion of decisions relating to formal adoptions, seemed to imply that these decisions might, if not excluded, be regarded as “services”; and this was consistent with the view that similar (though not identical) decisions about child placement with foster carers would also be “services”. Perhaps most importantly, a decision of the NSW Supreme Court some years ago, Director General, Department of Community Services v MM [2003] NSWSC 1241 , had reached the conclusion in very similar circumstances that foster parent decisions by a government body were “services” (see the Tribunal’s discussion in the Hordyk case at [209]-[216]).
(2) Was the refusal based on religious convictions?
Had the refusal to appoint the Hordyks been based on their religious views? The Tribunal held that it had been. They gave a brief comment on the nature of “religion” under Australian law (see [246]-[249], citing the key decision of the High Court in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120), although there was no real doubt that the church the Hordyks belonged to was a part of the Christian religion. They also cited an important UK decision, R (Williamson and Ors) v Secretary of State for Education and Employment [2005] UKHL 15 (“Williamson“), where Lord Bingham had made the important points that:
First, the genuineness of a claimant’s professed belief is a question of fact. A claim of a religious conviction must be made in good faith and not be capricious or fictitious. Second, it is not the role of the court to judge the ‘validity’ of an asserted belief against the orthodox teachings of the religion in question or the extent to which it conforms with others who share the religion. Third, religious beliefs are intensely personal and can vary between individuals. Finally, objective factors, such as source material, can be used, at most, to assist in determining whether a professed belief is genuinely held.
Williamson, at [22], as summarised at [251] in Hordyk.
There was an attempt by Wanslea here to argue that, as not all Christian churches took the view that homosexual activity was sinful, then the views held by the Hordyks were not relevantly “religious”. Following the Williamson approach, the Tribunal rejected this. The evidence that was led established that these views were held by church the Hordyks belonged to, and were genuinely held by them personally. They concluded at [296]-[297]:
[296] We, therefore, find that the Hordyks’ belief in relation to the sinfulness of homosexuality is a genuinely held religious conviction.
[297] Even if their religious conviction in relation to homosexuality was not in conformity with the teaching of the FRCA… we would find that the Hordyks’ view as to the meaning of the Seventh Commandment is a religious conviction. In doing so, we respectfully adopt the reasoning expressed in Williamson as set out to the effect that the Hordyks do not have to establish that their views conform to orthodox teachings accepted by adherents to the FRCA in order for them to amount to religious convictions
Wanslea tried to mount an argument (which to be frank is hard to follow) that the Hordyks’ views on homosexual activity were not actually based on their religious convictions but on a “rigidity” of thinking. The Tribunal concluded:
[304] As we have noted, an individual’s religious belief need not accord with the orthodox views of their religion or of others who profess to be of the same religion. We conclude that the Hordyks’ foreshadowed response to a school-aged foster child acting on same-sex attraction, as expressed in their answer to the Case Study, was a manifestation of their religious conviction.
[305] Furthermore, we reject Wanslea’s submission for the following additional reasons. First, it was never put to the Hordyks in cross-examination that their ‘rigidity’ was the result of something other than their religious beliefs. Second, the documentary evidence established that Wanslea’s witnesses accepted that the response the Hordyks gave to the Case Study reflected their religious beliefs. In our view, it was disingenuous of Wanslea to try to cast a different light upon the conduct of its staff by describing the Hordyks’ response as evidence of ‘rigidity’. As we have already found, it was also disingenuous of Wanslea to try to discredit the Hordyks’ reasons for their response by pointing to their pre-marital sexual activities as demonstrating flexibility in their adherence to their religious convictions.
This last point unfortunately should be noted. In the course of the trial it emerged that the Hordyks’ first child was born before they were married. At [113] the Tribunal notes that they both regarded their sex before marriage as sinful, they had repented, and been accepted into the church. Wanslea seems to have brought this fact out in an attempt to somehow argue that the Hordyks were “flexible” in their views on sexual matters, and hence were not able to teach any foster child about sexual sin:
Wanslea endeavoured to characterise this evidence as demonstrating that Mr and Mrs Hordyk do not adhere to the teachings of the FRCA in all situations and are willing to adapt their practices to suit their circumstances when it suits them. We reject that characterisation of the evidence. On the contrary, we accept Mrs Hordyk’s explanation that she has been taught, and genuinely believes, that all people are inherently sinful and have sinful desires and must fight against sin and that she regards [the pre-]marital sexual relationship she had with her husband as sinful. She believes that she has repented of that sin and ‘learned to move forward in a life that is pleasing to God’.
Para [114]
I regard this litigation tactic as tasteless and inappropriate. But I mention it because it seems to capture a feature of the secular discourse in this area. The idea that one could sin, and come to realise that sin, repent, and receive forgiveness, seeking thereafter to reject that sin, seemed hard for Wanslea to accept. That the Hordyks had previously sinned, does not mean that they cannot now teach their children (and those in their care) to avoid that sin. It is good to see that the Tribunal saw this clearly.
(3) Was the refusal “reasonable”?
An important feature of a claim for “indirect religious discrimination” is that a condition is imposed which is detrimental to believers, and in the circumstances the imposition of that condition is not “reasonable”. Here the Tribunal found that there was a:
requirement or condition imposed by Wanslea on the Hordyks to the effect that in order for their application to progress to assessment, they would be required to accept that if approved as foster carers, they would affirm all sexual orientations and gender identities of any foster child
Para [319]
After careful examination of expert evidence, the Tribunal accepted that this condition could not be complied with by the Hordyks due to their religious commitments (see [333]), and also that this condition was one that “substantially more people who do not share the same religion as the
Hordyks can comply with… than those who do share the Hordyks’ religious conviction” ([377]).
The final element which needed to be addressed was the “reasonableness” of the condition. The Hordyks argued that a less restrictive condition could have been imposed, such as allowing them to foster children up to an age at which the children would realistically be aware of sexual issues. Evidence accepted by the Tribunal from Dr Diana Kenny, formerly Professor of Psychology at Sydney University, expert on infant and child development, was that:
the proportion of children in the age range 0 – 5 years for whom issues of sexual orientation would arise would be a fraction very close to 0
Para [404].
The Tribunal ruled that
it was not reasonable to assess the Hordyks’ competency to provide care for children from newborn to 18 years of age, and thus to impose the requirement or condition that they be willing to affirm the sexual orientation and identity of all children under 18 years of age.
Para [428].
The Tribunal concluded that as a result there had been unlawful discrimination, in that some accomodation could have been made:
We find that Wanslea could reasonably have accommodated the Hordyks’ religious convictions by assessing their suitability to be foster carers for children under the age of two years, on an emergency, respite or short-term basis
Para [451]
Outcome
The final orders made were that there had been unlawful religious discrimination, and that a modest award of $3000 each should be made to each of the Hordyks, along with an order that the records be changed to show that their application was withdrawn, rather than being denied due to a lack of competence.
In my view these are very least orders that should have been made. At this point I find myself in the unusual position of disagreeing with someone whose comments on religious freedom issues I have always found invaluable. Stephen McAlpine commented on this decision on 26 December, and while I agree with most of what he says, I do not agree with his attack on the damages award as one for “hurt feelings”. I think this is probably because, as someone who teaches Torts to law students, I regularly come across awards for “non-economic loss” which are very similar to sort of award being made here. While the common law does not give a separate “head of damages” for upset or hurt feelings, it does recognise that if a distinct wrong of some sort has been committed (for example bodily injury or serious economic loss), then an award for “non-economic loss” encompassing these other matters is appropriate.
It seems to me arguable that the “distinct wrong” here is the act of discrimination. If no amount of money were awarded, the signal that might be sent is that it does not really matter. It would probably be preferable if the discrimination law allowed a compensation award based on the mere fact of discrimination, but since it does not, then an award recognising the harm to feelings and reputation seems the next best thing.
In discussing this issue, the Tribunal quoted a previous decision of the Western Australian Court of Appeal, Airflite Pty Ltd v Goyal [2003] WASCA 45, where Pullin J said at [44]:
Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the anti-discrimination legislation gave effect. Compensable loss would include injury to feelings or humiliation.
My own view is that this is a very modest award, and one that at least gives some “bite” to the other orders. It will hopefully be a salutary warning to government agencies that religious convictions really matter, and need to be accommodated in decision-making.
Law and Religion Australia 