Author: neilfoster

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Bathrooms and discrimination

The use of public bathrooms has become a topic of fierce debate in recent days, in connection with the rights of transgender persons. I want to mention a few of the issues raised in the United States before discussing the situation in Australia. These matters connect with “law and religion” because, as I noted in my recent post on Transgender Issues, many committed to a religious world view will see it as not possible for a person to change the sexual identity they have been given at birth, and will have conscience problems in recognising a gender identity change.

Issues in the US

1. North Carolina

One of the most high profile debates raising these issues in the United States is around the enactment of legislation in the State of North Carolina usually referred to as “HB2” (“House Bill 2” of 2016, presumably), although its formal short title is the Public Facilities Privacy & Security Act (“PFPSA”). The enactment of this legislation has led to high-profile protests from big businesses saying that they will stop doing business in the State, to entertainers cancelling concerts and plays.

The background to the legislation is summed up helpfully in this Public Discourse piece, “North Carolina’s Bathroom Bill and the Constitution” (April 13, 2016):

The controversy began in Charlotte where the city council repealed an existing ordinance that specifically excepted restrooms, showers, and similar facilities from the prohibition on sex discrimination. At the same time, the city council added sexual orientation and gender identity (SOGI) as protected classes under the city’s public accommodations ordinance. Repeal of the restroom exception combined with the new SOGI protections made clear that Charlotte businesses and other places open to the public could no longer separate men and women in such facilities on the basis of sex or gender identity.

These two changes, then, were a radical departure from the previous law, that allowed those who administer bathrooms and changing facilities to exclude males from female facilities, and vice versa. In response the PFPSA restored the longstanding situation that bathrooms would be reserved for those who were biologically of the relevant gender. The legislation, applying to schools and to public facilities, spells this principle out in the amended GS 115C-521.2(b):

Local boards of education shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex.

A later provision (new s 143-760(b) makes identical provision for “public agencies”. “Biological sex” is defined as

The physical condition of being male or female, which is stated on a person’s birth certificate. (s 115C-521.2(a)(1), s 143-760(a)(1))

This definition is important, because it recognises that where a person’s birth certificate indicates that they are of a particular sex, that will be the sex recognised by the law. Like many other jurisdictions, North Carolina allows a “post-operative” transgender person to have their birth certificate amended.

The restriction imposed by this law, then, only applies to those who may feel or believe they are of a gender other than that which corresponds to their biological reality, but have not yet gone through the complex processes which require a change of their outward genital and other appearance and general legal status.

It should also be noted that the legislation specifically says that it does not prevent schools or public agencies from setting up “single occupancy” bathrooms which may be designated for use by either sex. It is only “multiple occupancy” facilities which are required to be limited to access by persons of the same biological sex.

There are other aspects to the PFPSA which go beyond the issue of bathrooms. In response to the Charlotte council’s enactment of discrimination laws covering “sexual orientation and gender identity”, the legislature makes it clear that such laws should be uniform over the whole State, and limits the grounds on which discrimination laws can be enacted to “race, religion, colour, national origin, age, biological sex or handicap” (see new s 143-422.2(a).) These grounds are said to be prohibited grounds of discrimination for the purposes of employment or access to “public accommodation”. Unlike Australia, the various jurisdictions of the United States do not have a general prohibition of discrimination on the grounds of sexual orientation or gender identity/transgender status. While debate about whether there should be such general laws continues in the US, it seems worth noting that North Carolina did not have such laws (except in local areas such as Charlotte where councils had acted under local powers). So the action of the State legislature here was aimed at achieving a uniformity of approach across the State.

Still, I do not propose to defend or discuss this aspect of the PFPSA. What I want to note is that the law concerning use of bathrooms represents simply a consensus that has been present across most Western societies since the introduction of shared indoor bathroom facilities: that men and women are different, and where possible reasons of modesty and respect for others are best served by separating the sexes into different public bathrooms and changing areas. The laws that this move over-ruled proposed to allow open access to bathrooms to persons whose outward physical characteristics were the opposite to those who usually used the bathroom.

Indeed, recognition that modesty may call for differential treatment in “discrimination” laws is still embedded in Australian sex discrimination legislation. Under the Sex Discrimination Act 1984, there is a general principle that men and women should have access to public facilities (meeting rooms, etc) on an equal basis. But s 30 of the Act created some exceptions to these rules, and among those exceptions are the following:

Certain discrimination on ground of sex not unlawful

            30 (1)  Nothing in paragraph 14(1)(a) or (b), 15(1)(a) or (b) or 16(b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with a position as an employee, commission agent or contract worker, being a position in relation to which it is a genuine occupational qualification to be a person of a different sex from the sex of the other person.

             (2)  Without limiting the generality of subsection (1), it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex (in this subsection referred to as the relevant sex ) if:…

                  (c)  the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex;

                     (d)  the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex;

                     (e)  the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex;…

                  (g)  the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress

It is clearly recognised that in relation to “sex discrimination” (that is, differentiating between men and women), it may be a “genuine occupational qualification” to be of one sex or the other because access to bathrooms or changing areas is required. There is a genuine difference between men and women, and that difference manifests itself in a desire for modesty and not exposing one’s body to members of the opposite sex.

This would have all been reasonably straightforward and the subject of general agreement until very recently. However, there are now cases emerging which suggest that drawing the perfectly rational distinction between the bodies of men and the bodies of women is somehow “discriminatory”. The next case to be mentioned is such a case.

2. G G v Gloucester County School Board

In this decision of the United States Court of Appeal for the Fourth Circuit, handed down on April 19, 2016, a transgender boy, GG, born female, sought an injunction to require the local School Board to allow him to use the male rest rooms. GG dressed as a boy and had started “transitioning” to male, but had not had “sex reassignment surgery” (see p 7 of the transcript). Having been initially allowed to use a rest room in the school’s clinic area, he then started using the boy’s rest room, until the Board, following complaints from students and parents, ruled that students should only use the rest rooms corresponding with their biological sex. They did, however, provide three “unisex” stalls that could be used by GG or any other student of either sex. But GG complained that he felt “stigmatised” by being expected to use these separate stalls.

The legal basis for the injunction was said to be Title IX of the Federal Education Amendments Act of 1972 (there was a claim also filed under the “Equal Protection Clause” of the Constitution, but the court did not reach that issue.) Title IX provides relevantly that:

[n]o person… shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

The question was: was exclusion of a transgender person from a male bathroom, on the basis that he was biologically female, differential treatment “on the basis of sex”? The Act itself allowed separate living facilities for “the different sexes” (20 USC 1686) and regulations made under the Act permitted “separate toilet, locker room, and shower facilities on the basis of sex” (34 CFR 106.33). Since the School was allowing all persons who were biologically male to use the boy’s rest rooms, it seems that it was not discriminating “on the basis of sex”.

The majority of the Court (Floyd CJ and Davis SCJ) disagreed. Their primary reason for doing so was that the Federal Department of Education had provided its own interpretation of the law, and said in a letter of Jan 7, 2015, that:

“When a school elects to separate or treat students differently on the basis of sex… a school generally must treat transgender students consistent with their gender identity”.

To an Australian lawyer this part of the decision is particularly hard to accept. In our legal system the Department administering a law has no preferred standing as an interpreter of that law. It is the job of a court to interpret what the law says in accordance with well-established canons of statutory interpretation. But in the US the decision of the US Supreme Court in Auer v Robbins, 519 US 452 (1997), establishes that courts should usually “defer” to the interpretation of legislation provided by the agency responsible for its implementation, “unless the interpretation is plainly erroneous or inconsistent with the regulation or statute”.

So there is something of a presumption in the US that the bureaucracy administering a scheme knows best how to interpret the legislation setting up the scheme. But of course this still leaves some room for a court to rule that the Department has it wrong. Here the majority of the court upheld the Department’s interpretation, ruling that the law was “ambiguous” as to how the sex of students who claimed to be transgender should be treated- see p 20. So they deferred to the Department’s interpretation as a “reasonable” reading of the law- see p 21.

I have to say I find the dissenting judgment of Niemeyer CJ much more convincing. His Honour concludes that the Act and the Regulations use the word “sex” to refer to biological sex when allowing rules to discriminate between bathrooms and locker rooms on the basis of sex. There is no ambiguity which requires resolution by the Department. He also notes that GG’s argument, if accepted, would not only affect rest-rooms (toilets) but would have to be extended to other facilities the law allows to be sex-segregated, including living facilities, locker rooms and shower facilities- at p 56.

In the end, as Niemeyer CJ notes, the courts have in the past recognised “privacy rights” which arise in situations of nudity or partial nudity, and the policy supported by the Department would undermine the rights of students not to be exposed to the gaze of students of a different biological sex, or expose themselves to such persons (see the cases cited at pp 57-59).

There seems little doubt that the decision will be appealed, as it represents the first time a court (as opposed to an administrative body) has tried to mandate that students asserting they are transgender must be allowed to use bathrooms normally set aside on the basis of biological sex. It is particularly disturbing to see the majority’s use of “scare quotes” in the following passage near the beginning of their decision, at p 6:

GG’s birth-assigned sex, or so-called “biological sex”, is female, but GG’s gender identity is male.

The language really needs to be challenged. No person “assigned” GG a sex identity at birth; the very cells of GG’s body proclaimed what this was, presumably along with GG’s genitalia. And to refer to “so-called” biological sex seems like the worst sort of triumph of ideology over scientifically measurable reality.

The Australian situation

So far there seem to have been no court decisions on this issue in Australia. So the scenario sketched out here is hypothetical. But it seems to be worth considering whether a claim of unlawful discrimination could be made by a school student who claimed, without surgical intervention, to be of a “gender identity” opposite to that of their biological identity, but who was not allowed to use the bathroom corresponding to their assumed gender identity.

At the Commonwealth level, s 5B of the Sex Discrimination Act 1984 (“SDA”) prohibits discrimination on the basis of “gender identity”:

Discrimination on the ground of gender identity

             (1)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person’s gender identity if, by reason of:

                     (a)  the aggrieved person’s gender identity; or

                     (b)  a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

                     (c)  a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

“Gender identity” is defined in s 4(1) of the Act as

the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

One of the areas where gender identity discrimination is unlawful is access to facilities: see s 22 (extracted below on the relevant points).

Goods, services and facilities

             (1)  It is unlawful for a person who.. makes facilities available, to discriminate against another person on the ground of the other person’s … gender identity:

                     (a)  by refusing… to make those facilities available to the other person;

                     (b)  in the terms or conditions on which the first-mentioned person… makes those facilities available to the other person; or

                     (c)  in the manner in which the first-mentioned person… makes those facilities available to the other person.

If School S denied transgender student T, who identified as male, access to male toilets, presumably the argument would be made along the following lines:

  1. Being not allowed to use the male toilets is “less favourable” treatment;
  2. In the circumstances (which are said not to be “materially” different) B, a biological male who identifies as male, would be allowed to use the male toilets;
  3. B has a “different gender identity” to T;
  4. It is on the “ground of” T’s gender identity that this decision has been made;
  5. This under s 22 would be a detail of “facilities.”

Interestingly, however, almost every one of the steps in this argument seem open to challenge (apart from step 5, which seems applicable).

  1. Is it really “less favourable” treatment to not be allowed to use the male toilets? In general terms where toilets of an equivalent standard are supplied, it might not be. But presumably it would be argued that the way to describe the treatment is “being allowed to use a bathroom that correspond to one’s apparent sex”, and the benefit being denied here is represented by the probability of being made fun of by other students for seeming to use the wrong bathroom.
  2. An important issue here is whether or not the circumstances are “materially different” when considering the question of discrimination. S may argue that there is a key material difference here: the physical genitalia and other sexual identity markers of T are not those of B, and these are “material” to the question of access to a shared bathroom.
  3. Is it indeed the case that B has a different “gender identity” to T? After all, both of them seem to present as male. However, the argument may be made that a “gender related characteristic” of T is the lack of male genitalia.
  4. Has the decision to exclude been made on the basis of T’s gender identity? It could be argued that it has been made on the basis of T’s biological sex, not T’s male gender identity. Here is difficult to know what to make of the phrase at the end of the definition of “gender identity”: “with or without regard to the person’s designated sex at birth”. Is one allowed to have regard to T’s biological sex (the apparent intended meaning of the inaccurate word “designated”)? Or not?

It seems there will be much work needed to sort out these complexities. It may not be irrelevant, however, that as noted above s 30 of the SDA allows recognition of the general public policy which allows segregated bathrooms on the basis of sex. Perhaps the interpretation of the transgender discrimination provisions in s 5B ought to take this into account. Of course it ought to be wrong for a transgender person to be denied a job in the general marketplace, or access to public facilities like a shopping centre or a university, on the basis of that characteristic. That is because on the whole the question of whether a person believes that their gender identity is not the same as their biological identity is irrelevant to those situations. But it seems to be highly relevant, where bathrooms and change rooms are involved, what a person’s biological identity is. And so arguably s 5B ought not to be satisfied in these cases.

If, contrary to the above view, there is a prima facie case for breach of s 5B, would there be any applicable defences? The defences under s 30 noted above apply only to the question of  discrimination on the basis of “sex”, not “gender identity”. However, there is a broader defence provision which may be applicable: s 32.

Services for members of one sex

                   Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.

S may well argue that the nature of the “service” of providing a bathroom is such that they must be segregated on biological sex lines. The proposition that “men’s toilets” are only available to men would not seem to be very controversial. However, this argument may possibly not succeed- “services” are not quite the same as “facilities”, and there is no specific exemption of this sort for “facilities” as such.

There is also an exemption in relation to matters dealt with by other legislation, under s 40:

 (2B)  Nothing in Division 1 or 2, as applying by reference to section 5A, 5B or 5C, affects anything done by a person in direct compliance with a law of the Commonwealth, or of a State or Territory, that is prescribed by the regulations for the purpose of this subsection.

I am, to be frank, not sure whether access to male and female bathrooms is governed by laws or simply has been regarded as a matter of custom. If, however, there is a law that deals with the matter, then s 5B may not over-ride it.

This exemption only applies to “prescribed” laws. At the moment such provision is made, for State and Territory laws, by reg 5 of the Sex Discrimination Regulations 1984:

Exemption for things done in direct compliance with prescribed laws

             (1)  For subsection 40(2B) of the Act, all laws of the States and the Territories, as in force on 1 August 2013, are prescribed…

             (2)  This regulation ceases to have effect at the end of 31 July 2016 as if it had been repealed by another regulation.

If a State law currently over-rides s 5B, then it will cease to do so on 31 July 2016. After that point the debates noted above over the extent and meaning of s 5B will have to be resolved.

Conclusion

The question whether a person who identifies as transgender, but has not yet made a “surgical” transition, ought to be allowed to use bathrooms of their preferred gender, is under debate around the Western world. While there are general laws prohibiting discrimination which may provide an answer, they are not always clear. Arguably these are the sort of issues where Parliaments ought to provide clear guidance, rather than leaving it up to the courts to have to wrestle with legislation that may have not been designed for this purpose.

Politically and in the realms of public debate, it ought to be more clearly recognised than it is, that opposition to changes allowing “bathroom access” in the preferred gender is not simply based on irrational hatred or “transphobia”. There are genuinely difficult issues to be resolved. Who gets to decide whether someone has sufficiently indicated an intention to live as the opposite sex to be so regarded for bathroom purposes? It would seem to be ludicrous to accept this on the mere unsupported word of a person, with no outward or historical evidence that this is indeed a long term desire rather than a passing fantasy. There may be good reasons to distinguish between different types of rooms, to treat toilets with separate stalls differently to change rooms or shower rooms. The rights to privacy of persons using the bathrooms corresponding to their biological sex cannot simply be ignored by allegation of a new “right to feel comfortable about gender identity”.

In this connection it is interesting to note the decision of the Victorian Civil and Administrative Tribunal in Hanover Welfare Services Ltd (Anti Discrimination Exemption) [2007] VCAT 640 (20 April 2007). There a women’s shelter received a general exemption under the relevant Victorian legislation allowing them not to accept male-to-female transgender persons as “women” for the purposes of providing shelter. DP McKenzie, in issuing the exemption, noted:

9 The incident which led to this exemption application was an incident where a male who identified as a male-female transsexual was accommodated in a women’s only accommodation service. The person behaved inappropriately and walked naked within the accommodation facility displaying male genitalia. The women accommodated in the facility felt great trauma and distress and because of this, resulting from their past experiences and fear.

(See, for a critique of this decision, this article.)

Finally, the debate on these questions cannot avoid raising serious issues as to whether supporting a person’s desire to appear as a member of the opposite sex is always a wise idea, especially when the person is a minor, whose feelings and desires may change rapidly during adolescence. All these matters are the subject of serious debate which ought to be conducted in a respectful way, not demonising or insulting either side.

neilfoster

Transgender issues under Australian Law- an overview

The question of legal and social recognition of the rights of transgender persons is becoming a very hot topic of discussion. The recent debate in Australia on the content of the material provided for schools by the “Safe Schools Coalition” is one example. The question whether persons who believe they are of a different gender to their biological sex, should be able to use public bathrooms corresponding to their gender preference, is also fiercely debated. A law on the topic introduced recently in North Carolina in the United States has led to outrage from a number of quarters, and the announcement of “boycotts” and withdrawal of business by large firms and entertainers.

There are many issues in this area which intersect with religious freedom questions, especially as the majority view within Christian and other “Abrahamic” faiths seems to be that a person’s gender should usually correspond with their biological sex, except in the very rare cases of true “intersex” conditions where biological markers point in different directions.

This post cannot deal with all the current issues. But I thought as a preliminary exercise it would be helpful to briefly review the current Australian law around the topic, to set the scene for future discussions. I will also offer a few comments on recent proposals for change to the criteria adopted for changing a person’s legal gender identity.

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Insulting religion and legal consequences

Two recent news items raised interesting issues of free speech about religion and its legal consequences. One was a comment by Mr Peter FitzSimons; the other a report about an “anti-Muslim” banner being flown at a football game.

1. Peter FitzSimons

Peter FitzSimons, sports and general social commentator, is well known in Australia for his opposition to religion generally. In two articles this week he commented on the decision of a Mormon rugby league footballer, Will Hopoate, not to play or train on Sundays on the basis of his religious convictions about observing the Sabbath: see “Join me on a walk through the minefield of Will Hopoate’s decision not to play NRL on Sundays” (Sydney Morning Herald, 30 March 2016); and “The questions thrown up by Will Hopoate’s decision not to play in the NRL on Sundays” (SMH, 2 April 2016).

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Religious Ethos and Open Membership at Sydney University

A report in the student newspaper from the University of Sydney (Honi Soit, March 13, 2016) records that

The University of Sydney Union (USU) has threatened to deregister the Sydney University Evangelical Union (EU) from the Clubs & Societies program over the latter’s requirement that all members must make a declaration of faith in Jesus Christ.

In other words, a student religious group is being told that they may no longer be registered to use University facilities or receive the financial support other groups receive, because they make it a requirement of membership that someone support that religion. This is a very disturbing development for religious freedom at the University of Sydney, and especially if it presages similar developments around Australia. What is going on here? And is this move lawful, or not? 

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Islam, women’s seating and discrimination

In a very interesting recent decision, Bevege v Hizb ut-Tahrir Australia [2016] NSWCATAD 44 (4 March 2016), the NSW Civil and Administrative Tribunal has found that an Islamic group unlawfully discriminated against a female member of the audience for a seminar they were running, by requiring her to sit in a “women only” area.

In my view the decision is somewhat disturbing, and has the potential, if followed in the future, to undermine the appropriate recognition of religious freedom in NSW. The implications may extend beyond Muslim groups to a range of religious groups. 

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ALRC Freedoms Inquiry on Religious Freedom- Part 1

Today the Australian Law Reform Commission released its final report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129). I am planning on providing some comments myself, but in the meantime I am grateful to my friend Mark Fowler, from Brisbane law firm Neumann & Turnour, who has agreed to provide a very speedy overview of chapter 5 (on “Freedom of Religion”) by way of a “guest post” on the blog. Over to Mark:

General Summary

This update focusses on the findings at Chapter 5 – Freedom of Religion, which concern the extent to which Commonwealth law encroaches upon religious freedom within Australia.

Whilst various submissions to the Inquiry argued for the limiting or total removal of existing exemptions from the operation of anti-discrimination law granted to religious institutions, at paragraph 5.123 of the Final Report, the Inquiry impliedly refuted such submissions. It did this by linking a finding of no significant encroachment upon religious freedom to the ongoing presence of exemptions:

[T]here is no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, especially given the existing exemptions for religious organisations.

The conclusion that there is no significant encroachment upon religious freedoms had been contested by various of the submissions made. However, the Report did note that there was a degree of community concern as to that encroachment and recommend that religious freedom protections be considered in any future reform efforts aimed at anti-discrimination laws (at paragraph 5.154):

[C]oncerns about freedom of religion should be considered in future initiatives directed towards the consolidation of Commonwealth anti-discrimination laws, or harmonisation of Commonwealth, state and territory anti-discrimination laws. In particular, further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions.

General Limitations Clause

The ‘general limitations clause’ approach is summarised by the Commission in the following statement:

A broader concern of stakeholders is that freedom of religion may be vulnerable to erosion by anti-discrimination law if religious practice or observance is respected only through exemptions to general prohibitions on discrimination. An alternative approach would involve the enactment of general limitations clauses, under which legislative definitions of discrimination would recognise religious practice or observance as lawful discrimination, where the conduct is a proportionate means of achieving legitimate religious objectives.

Whether such a clause would operate as an effective protection of religious freedom (including as a means to effect the applicable international instruments to which Australia is a signatory, including Article 18 of the International Covenant on Civil and Political Rights) will of course turn on its precise terms. The Inquiry’s Final Report provides at paragraph 5.111 an example of a general limitations clause, as proposed by Professors Nicholas Aroney and Patrick Parkinson:

  1. A distinction, exclusion, restriction or condition does not constitute discrimination if:
    • it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or
    • it is made because of the inherent requirements of the particular position concerned; or
    • it is not unlawful under any anti-discrimination law of any state or territory in the place where it occurs; or
    • it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons.
  1. The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 2(a).

Harmonisation of Commonwealth, State and Territory Laws to Protect Religious Freedom

Making reference to the potential for harmonisation across Commonwealth, State and Territory anti-discrimination laws, the Report notes that at ‘present all states, except New South Wales and South Australia, and both territories, have legislation making it unlawful to discriminate on the grounds of religious belief. The definitions of religious discrimination and the scope of exemptions differ. Commonwealth law does not make discrimination on the basis of religion unlawful’. We agree that this is an area warranting further consideration in reform efforts into the future.

Further Information and Next Steps

We continue to analyse the report, but thought this brief summary would be helpful. Further details of the Inquiry’s Final Report can be found online and general links are provided below:

The Inquiry’s Final Report does not represent a Government commitment to reform the law, however, many of the Commission’s past reports have been influential in driving law reform. The Australian Government has not a set a time frame in which to respond to the Inquiry’s Final Report or implement the recommendations.

Mark Fowler | Director, Neumann & Turnour Lawyers

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Free speech and the plebiscite (part 2)

An article in today’s press, “Call to suspend hate laws ‘disgraceful’: Gillian Triggs” reports comments of the Australian Human Rights Commission President Gillian Triggs on proposals to protect free speech in the same sex marriage plebiscite, which I commented on yesterday. As a number of the points made in today’s article were not dealt with in yesterday’s blog, I thought it might be helpful to provide a response. Readers should of course read the previous post first, to get the proper context.

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Protecting free speech in the Same Sex Marriage Plebiscite debate

An article in the The Guardian today, “Override hate speech laws to allow marriage equality debate, urges Christian lobby” reports that Lyle Shelton, managing director of the Australian Christian Lobby, has made proposals urging greater protection of free speech for those opposed to the introduction of same sex marriage in the forthcoming Australian plebiscite on the topic.

Of course, the reader will see that the Guardian headline and my summary of the proposals seem quite different. In its support for same sex marriage, the Guardian and those it quotes describe the ACL proposals as follows: the ACL wants to “permanently override anti-discrimination laws”; the ACL is said to need to justify why it wants to “breach anti-hate laws”; the laws in question are designed to “protect Australians from acts of hatred, vilification and incitement”; the ACL has an “intention to run an ugly and discriminatory campaign against marriage equality”.

I think the Guardian has slanted the ACL views unfairly. (Even more unfairly, the Sydney Morning Herald report on the story features a cartoon of an ACL representative complaining that they can’t be expected to make their case “without expressing hatred and bigotry”.) Let me suggest reasons why the ACL proposal, so far as can be ascertained from these press reports, sounds limited, moderate and sensible. 

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Churches offering sanctuary to asylum seekers

In a high-profile decision of the High Court of Australia yesterday, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1 (3 February 2016), a 6-1 majority ruled that the Australian government is entitled to continue its policy of detaining certain asylum seekers off-shore in the Pacific nation of Nauru. In recent days there has been a lot of publicity on this issue, especially in relation to a group of mothers and their babies and young children who have been receiving medical treatment in Australia, and will now have to be returned to the dreadful conditions in Nauru. Today a number of Christian churches went public with an offer of “sanctuary” for those who are supposed to be returned.

From one of the press reports, “Churches become potential flashpoint after offering sanctuary to asylum seekers in wake of High Court verdict” (A Gartrell, Sydney Morning Herald, Feb 4, 2016):

Ten Anglican churches and cathedrals have invoked the ancient Christian tradition to offer protection to the 267 people – including 37 babies – facing imminent transfer to Nauru after the court on Wednesday upheld the legality of the government’s offshore processing regime.

The movement is being led by the Anglican Dean of Brisbane, Dr Peter Catt, who has declared his St John’s Anglican Cathedral a place of sanctuary.

Dr Catt said if any asylum seekers sought sanctuary in his church he would do his best to keep the authorities out. He said he fully accepts that he and other clergy could be charged with obstruction and potentially even face possible jail time.

It seems worthwhile to comment briefly on the legal issues around “sanctuary” in Australia.

Background to the Law of “Sanctuary”

Most people are aware that church buildings in the past were a place of refuge, where some wrongdoers could seek sanctuary from arrest. As a number have noted, this idea no doubt had its roots in the Bible, where in the Old Testament there are some recorded references to people seeking sanctuary at the altar of the Temple (see 1 Kings 1:49-53, Adonijah, and 1 Kings 2:28-34, Joab; one was allowed to avoid punishment and the other, seen as a deliberate murderer, was not). The law of Moses also saw a system of “cities of refuge” (Joshua 20:1-6) where those who had committed what today would be called “involuntary manslaughter” could seek to flee from revenge at the hands of the family of the deceased. (For a careful discussion of these passages, and other material relating to Old Testament views of “asylum”, see Jonathan Burnside, God, Justice and Society (Oxford, 2011) at 265-270.)

In the early days of the common law of England, this was implemented by a system of sanctuary which applied in local churches in different ways. (For an overview of the history of legal sanctuary in Europe and elsewhere see L Rabben, Give Refuge to the Stranger (Left Coast, 2011), ch 3; for an analysis of the issue at common law see J H Baker “The English Law of Sanctuary” (1990) 2/6 Ecclesiastical Law Jnl 8-13.) With the growing power of the secular monarchy, areas where wrongdoers could escape the King’s justice were increasingly reduced, and in 1624 sanctuary as a common law doctrine was abolished by statute (21 Jam I, c 28, s 7).

Any legal operation of the doctrine, then, was well and truly removed from the common law before the European settlement of Australia, and not part of that law which was “received” into our system. In any event, the continuation of a law which gave special recognition to the status of church buildings was unlikely to have survived the process of Federation, where at least for the purposes of the Commonwealth, no “establishment” of religion was possible under s 116 of the Constitution.

Churches and Civil Disobedience

It seems likely, then, that members of a church who shelter someone who is supposed to be returned to Nauru may be guilty of an offence under s 233E of the Migration Act 1958 (Cth), subsection (3) of which provides:

 (3)  A person (the first person ) commits an offence if:

                     (a)  the first person harbours another person (the second person ); and

                     (b)  the second person is an unlawful non-citizen, a removee or a deportee.

Penalty:  Imprisonment for 10 years or 1,000 penalty units, or both.

 While I am not aware of other Australian cases dealing with the meaning of this provision, or of “harbouring”, the general sense seems to be that of providing accommodation and support for someone who is breaking the law. In the United States a decision of the 9th Circuit US Court of Appeals, United States v Aguilar, 883 F 2d 662 (1989) found that a church which had engaged in support for illegal migrants was guilty of “harbouring” under a broadly equivalent provision of US law, 8 USC 1324. (For an article discussing the case, and others, while critical of the decisions, see E Breslin,

“THE ROAD TO LIABILITY IS PAVED WITH HUMANITARIAN INTENTIONS: CRIMINAL LIABILITY FOR HOUSING UNDOCUMENTED PEOPLE UNDER 8 U.S.C. § 1324(A)(1)(A)(III)” (2009) 11 Rutgers Jnl of Law and Religion 214-242.)

While churches usually acknowledge the importance of keeping the law (in line with the Biblical injunction in Romans 13:1), Christian history and the Biblical witness record occasions where their higher loyalty to God has to take precedence over obedience to civil authority. See for example Acts 4:18-21:

18 So they called them and charged them not to speak or teach at all in the name of Jesus. 19 But Peter and John answered them, “Whether it is right in the sight of God to listen to you rather than to God, you must judge, 20 for we cannot but speak of what we have seen and heard.”21 And when they had further threatened them, they let them go, finding no way to punish them, because of the people, for all were praising God for what had happened.

The reluctance of the authorities to punish the apostles, because of their popularity with the general public, is interesting, but the US examples noted above reveal that churches cannot always rely on the Government declining to prosecute!

The relevance of religious freedom

It might be argued, however, that a church determined to provide sanctuary was not necessarily breaking the law, if doing so was necessary to live out the commitments of their religious faith. Section 116 of the Commonwealth Constitution not only forbids the “establishment” of religion, but it also prohibits the Commonwealth Parliament from enacting a law “for prohibiting the free exercise of any religion”. I have discussed the protection of religious freedom on a number of other occasions on this blog previously: see here and here for material and links to a general overview. But this provision, while it has not been fully explored yet, might offer some protection for conscientious action by churches in this area. (I stress that this blog cannot provide formal “legal advice”, and so of course anyone wanting to act in this area should seek such advice from their own lawyer. But I offer here a possible scenario.)

It seems best to deal with what may be two immediate objections to this suggestion.

One would be to say that religious freedom protects a person’s right to believe, and perhaps their right to go to church, or a mosque, or a synagogue; but cannot over-ride a generally applicable law like the migration law. The short answer is that this is not the way a right to “free exercise of religion” operates. It is generally recognised in international law, and in other countries where religious freedom is protected, that it not only protects the area of belief and worship, but also provides at least some protection for action involved in living out one’s faith. In the main Australian case on the issue so far, Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, handed down at the height of World War 2 where it was thought that the Jehovah’s Witnesses organisation were undermining the war effort and so should be banned, the High Court of Australia stressed that religious freedom was a key human right recognised by the Constitution, and involved not simply internal belief but also everyday action. As Latham CJ said:

The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. (at 124)

 Now of course any human right must be balanced in the context of other human rights. The way that Latham CJ put it was that Commonwealth laws must not “unduly” interfere with religious freedom (at 128). In the context of that decision, the court deferred to the Commonwealth Government’s views on what was necessary for national security in the midst of the war, and would have upheld the relevant provisions if they had otherwise been valid. But the case stands squarely for the proposition that this sort of balancing process is necessary.
Another objection to seeing the offering of sanctuary to refugees as a part of an exercise of religion might be that not all churches agree that this is an appropriate response to the situation. It might be said that offering sanctuary is not “required” by the Christian faith. Again, the short answer to this is that protection of religious freedom does not simply extend to parts of a faith that are universally agreed on by all members of the religion. Cases from around the world demonstrate that so long as a belief is genuinely motivated by a sincere religious faith (and the religion itself is not a “sham” or a “hoax”), then it can be taken into account and the balancing process needs to be undertaken.
This can be illustrated from the 2013 decision of the European Court of Human Rights in the case of Eweida v United Kingdom [2013] ECHR 37, where the Court held that Ms Eweida’s religious freedom had been unduly impaired by a directive from her employer, British Airways, that she not wear a cross at work. It was conceded that not all Christians saw the wearing of a cross as “mandated”, but Ms Eweida’s belief that she should do so was sincere and a part of a tradition in Christianity that would be protected. No doubt churches offering sanctuary could point to strong arguments from the Bible, including the command to love one’s neighbour, as supporting their offers, especially given the emerging evidence of the serious harm to which asylum seeker children in particular are exposed on Nauru, both in terms of the risk of physical and sexual assault, and the danger to long term psychological well-being.
So, these two objections do not mean that an argument based on religious freedom could not succeed. But of course there are still a number of hurdles to be overcome. A court asked to decide the matter would need to address the question whether a prosecution of a congregation for its religiously motivated decision to provide sanctuary to an asylum seeker was an “undue” infringement of its religious freedom (or, which is probably the same question here, the religious freedom of its members.) My previous papers noted above discuss the relatively few cases where this issue has been addressed in the past in Australia, not always satisfactorily.
There is one suggestion that may point to a way forward. In a previous post I noted that the High Court, in the decision of McCloy v New South Wales [2015] HCA 34 (7 October 2015), set out a detailed scheme for addressing the question of whether there had been a breach of the “implied freedom of political communication” found under the Constitution.  In a later post on another case, I suggested that the “McCloy schema” could be adapted to this question of undue infringement of religious freedom. There I suggested:
now that the High Court in McCloy has set up a careful scheme for balancing the implied freedom of political speech with other important social values, it may well be open to applying the McCloy tests, and in particular the questions of “proportionality”, to consideration of what is, after all, an explicit constitutional freedom in s 116. In fact my colleague Dr David Tomkins, in a helpful overview of the McCloy decision (“Developers, Election Funding and the Implied Freedom of Political Communication: the HCA weighs in” (Dec 2015) Law Society Journal 88-89), has suggested that indeed this is one direction that might be taken in the future. Such a balancing process, which gives weight to the importance of religious freedom and the need to only over-ride it in very limited circumstances, would in my view be a positive development.
This would involve a Court considering not only whether the aim to be achieved by the particular provision was a legitimate aim, but also whether the over-riding of any religious freedom considerations was a “proportionate” method of achieving such an aim. It would at least be a matter worth considering.

Conclusion

It is not known yet whether the offer of the various churches to provide sanctuary will be taken up, and if so the attitude of the Commonwealth Government. It is worth noting that, while there does not seem to have been a strong tradition of this in Australia previously, other countries have experienced the phenomenon and dealt with it in different ways. A very useful article by Canadian Sean Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law” (2009) 26/1 Refuge 43-56 discusses the Canadian experience and some of the issues that subsequently arose. One interesting issue he raises is that, when offering sanctuary became a well-established practice, churches had to develop a “screening process” to decide who, among the many candidates, would be offered sanctuary. In doing so, as he points out, they often replicated the sort of process adopted by the Canadian government in deciding who should be granted refugee status. These sort of issues will need to be considered by Australian churches as well, should it become necessary to proceed in this direction. (For those who are interested, there is a Canadian website at http://sanctuarycanada.ca with a lot of interesting material based on the experience of Canadian churches.)

The churches have been warned, both by legal experts and by the Immigration Minister, that they may face criminal sanctions if they go ahead with their proposals. They may respond that the law recognises their right to free exercise of religion, and that as a result they are not disobeying the law. They may accept that they are in breach of the law but choose to go ahead in obedience to a higher law. Complex issues may arise as to who is to be offered sanctuary, and for how long, and whether this will undermine an overall policy which some see as more humane in the long term. But in any event their willingness to stand up and risk their own comfort and safety for the rights of “little ones” who are loved by their Lord Jesus (see Matthew 19:13-14) seems thoroughly commendable.

Update: I have prepared a slightly updated version of these comments in a paper I presented on March 4, 2016 to the Newcastle Lawyers’ Christian Fellowship. The paper contains more details on the background to the law of sanctuary and some more recent comments on the issue from churches. It can be downloaded here.

neilfoster

Heartbreak, Humiliation and a Death Certificate

“Heartbreak and humiliation” were the opening words of the current affairs show “The 7:30 Report” on the national public broadcaster, the ABC, on Thursday Friday 21, 2016. The story? The tragic accidental death of David Bulmer-Rizzi, one member of a UK same sex couple who were visiting the country.The tragedy was compounded, the report said, by the fact that the South Australian authorities were proposing to issue a death certificate which stated that the deceased was “never married”. But the couple had entered into a same sex marriage under UK law.

The grief of the survivor, Marco Bulmer-Rizzi, and the father of the deceased man, were evident in the show. To lose a loved one in such circumstances is a terrible thing. But as there has already been substantial press coverage of the case, being used for the purpose of supporting legal change in Australia, it seems worthwhile to clarify the purely legal situation. 

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