Gender Identity Laws and Basic Freedoms

I am presenting a paper on Feb 8, 2020 at the NCC National Conference 2020 “Strengthening Family, Faith, Freedom and Sovereignty in an ideologically hostile world”. The paper concerns the interaction between laws on “gender identity discrimination” and other basic freedoms, including freedom of speech and freedom of religion. The paper can be downloaded here:

Submission on Second Draft of Religious Discrimination Bill

As noted previously, the Commonwealth Government released a Second Exposure Draft of their proposed Religious Discrimination Bill in December 2019, inviting public comment by Friday 31st January 2020. I have now provided my submission on this draft, which is linked here for those who would like to consult it:

In short, I think this legisation is an important step in improving protection of religious freedom in Australia, and the second draft is an improvement on the first. But I recommend some clarification or change of approach in the following areas:

  • Defining Religious Belief – I recommend that the way that the courts should determine whether a claim to religious belief is justified should focus on sincerity rather than courts examining “reasonableness” ; I also think that the bar of “unlawfulness” determining what beliefs cannot be protected at all needs to be raised to mainly cover serious criminal offences;
  • Who is protected by the Bill? – I suggest that the Bill ought to protect religious groups as well as individuals; in this context I think that the limits on protection based on the concept of “commercial activity” need to be removed, though I agree that the kind of organisations protected need to be limited in other ways;
  • Who is bound by the Bill? – I agree that, as at present, both individuals and groups should be bound not to religiously discriminate; but I think the exemption given to government bodies from the provisions relating to religious free speech outside working hours should be rolled back;
  • The limits of protection – I argue that cases where religious freedom can be over-ridden should be limited to those where it is “necessary” in protection of important fundamental rights, as spelled out in the ICCPR art 18(3);
  • Protecting religious free speech – I argue that the good initiative protecting statements of religious belief in clause 42 should also be extended to “vilification” claims, so long as they do not contravene the limits set out in the clause itself and defined by the Commonwealth;
  • Conscientious objection by health practitioners  – I argue that the complicated provisions protecting conscientious objection to certain procedures by health practitioners need to be improved;
  • The Religious Freedom Commissioner – I support this new position but argue that the person concerned should be clearly shown to understand the issues facing religious citizens; 
  • A note on charities – I support the current provision ensuring that advocacy of traditional views on the nature of marriage not disqualify a body from being recognised as a charity, and suggest a further change to make this even clearer.

Opposing same-sex marriage is not "vilification"

The recent NSW decision of Passas v Comensoli [2019] NSWCATAP 298 (18 December 2019) provides an example of someone who has been penalised for “homosexual vilification” as a result of comments concerning same-sex marriage. However, it does provide clarification that merely to express disagreement with the introduction of same sex marriage does not amount to such vilification under NSW law.

Continue reading

Losing a job for believing that biological sex is immutable

An astonishing decision from an Employment Tribunal in the UK has ruled that it is acceptable to dismiss an employee because of their view that sex is biological and immutable (unable to be changed). In a preliminary ruling in Forstater v CGD Europe (18 Dec 2019; Case No 2200909/2019, Employment Judge Tayler) this view was found to be “incompatible with human dignity and [the] fundamental rights of others” (para [84]), and hence not a protected “belief” for the purposes of a claim of “belief”-based discrimination under the UK Equality Act 2010. While this case is not based on a religious belief, it brings into sharp focus a number of issues connected with religious beliefs and the workplace.

Continue reading

Second draft of Religious Discrimination Package released

The Commonwealth Government has released a second version of its draft legislation dealing with religious discrimination issues, for further comment before it is formally introduced into the Federal Parliament in the New Year. There are a number of important changes from the previous drafts which in my view make it a much better package of amendments. But there are areas for improvement.

Continue reading