The view that biological sex is immutable and that a man cannot become a woman is, of course, controversial today. But in a very welcome decision, the UK Employment Appeal Tribunal in Forstater v CGD Europe  UKEAT 0105_20_1006 (10 June 2021) has now overturned a previous single judge decision, and ruled that such a belief is “worthy of protection” as a “philosophical belief” under UK discrimination law. The decision, while not based on religious belief, will have important implications for protection of religious freedom in the UK, and hopefully in other parts of the world as well.
The recently released NSW Parliamentary Report of the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (handed down on 31 March 2021) has recommended that the NSW government introduce amendments to make it unlawful in NSW to discriminate on irrelevant grounds relating to religious belief or activity. The proposals supported by the Committee are a good idea and I think their recommendations (with a couple of minor reservations noted below) should be implemented.
The Victorian Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic) (which I will call the “CSP” law for short) passed the Upper House on 4 Feb, 2021. As I write it seems not to have yet received the Royal Assent and become an “Act” but that will no doubt happen soon. The government has signalled that the legislation will not come into operation for another 12 months (see the final sentence in this article.)
My previous posts (see here for the most recent) have expressed grave concerns about the effect of the law on religious freedom and specifically on the freedom of parents and others to encourage children to live in accordance with Biblical standards of sexual behaviour. It is astonishing that the Bill was rushed through Parliament in the face of concerns also being expressed by the Law Institute of Victoria, the Australian Medical Association (AMA) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP). (See this excellent post from Murray Campbell noting these issues.)
There are, it seems, very few legal avenues available to challenge the many problems created by this law. But in this post I want to suggest one which may be available- where the CSP Law purports to take away rights of religious freedom granted by the Commonwealth Parliament.
Many commentators concerned with free speech and religious freedom have expressed serious concerns about the Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic), now awaiting its second reading debate in the Victorian Legislative Council (which could resume on February 2, having swiftly passed all stages in the Legislative Assembly on 10 December 2020). Others who are sympathetic to the aims of the Bill have suggested that these concerns are over-stated- that the relevant criminal offences created by the Act are only applicable where “harm” or “serious harm” can be shown to a criminal standard, and hence that there will be few such cases. For example, an editorial from The Age which supports the Bill says:
It is important to note the government’s assurance that only in cases where such practices could be shown beyond a reasonable doubt to have caused injury or serious injury would they be considered offences under this legislation.The Age, Editorial, Dec 8, 2020
But the scope of this legislation goes well beyond the specific “injury” offences that are created (while these are problematic enough.) The Bill creates a powerful set of bureaucratic mechanisms by which religious groups presenting the classic teachings of their faith may be subject to investigation and “re-education” by human rights officers. It arguably makes the presentation of some aspects of Biblical teaching unlawful if the aim of that teaching is to encourage someone to follow that teaching in their own life. Despite the appearance of addressing horrific and oppressive quasi-psychological procedures inflicted on young people, the Bill goes well beyond this laudable goal, and will make it unlawful to provide assistance in obeying the Bible to those who explicitly and with full understanding request such help. Enactment of this legislation would be a serious mistake.
This is just a brief update to my last post about the recently released Change or Suppression (Conversion) Practices Prohibition Bill 2020. I have since had an opportunity to read some other documents released to the Victorian Parliament when the Bill was introduced, which give some more insight into what the Victorian Government views as the impact of the Bill on churches and other religious groups.
A bill dealing with the topic of what elsewhere has been called “conversion therapy” has been introduced into the Victorian Legislative Assembly: the Change or Suppression (Conversion) Practices Prohibition Bill 2020. Along with the Bill, there is an important Explanatory Memorandum which gives insight into what the Victorian Government thinks the Bill means.
The Bill is lengthy and complex and will warrant a great deal of careful study. But in this initial post I want to highlight some seriously concerning features. It seems at least arguable that the Bill will make it unlawful for some churches and other religious bodies to openly teach and proclaim the doctrines of their faith in Victoria.
Those who follow public matters in Australia will remember the controversy in 2019 surrounding controversial comments made by celebrity rugby player Israel Folau. See here and here for my discussion of the legal issues around Mr Folau’s claim that he had been dismissed partly on account of his religious beliefs. That claim was later settled before proceeding to trial, in December 2019 .
In an interesting sequel, Mr Folau was then sued by Mr Gary Burns for “homosexual vilification” under the NSW Anti-Discrimination Act 1977. Mr Burns’ claim was rejected by the President of the Anti-Discrimination Board in April this year. Now his appeal against this decision to the NSW Civil and Administrative Tribunal has been dismissed, and the claim will go no further- see Burns v Folau  NSWCATAD 287 (18 November 2020).
Australia now has two local Acts banning so-called “gay conversion therapy”, in Queensland and the ACT. An article on the ABC website on November 8, 2020 reports: “Gay conversion practices to be outlawed by the Victorian Government“. But this latest article demonstrates that some activists calling for these laws want to go well beyond outlawing horrible practices like shock therapy or “aversion” therapy. Those quoted in the article want to ban “conversations with religious leaders” on topics of sexuality. Such a law would be a gross violation of free speech and religious freedom rights, as well as an attack on those experiencing same-sex attraction who may want to be helped to live in accordance with religious teachings on these issues. Laws like this ought not to be passed.
In a controversial decision, the United States Supreme Court has held by 6-3, in Bostock v Clayton County, Georgia (No. 17–1618; June 15, 2020), that the prohibition of “sex discrimination” in the workplace in Title VII of the federal Civil Rights Act of 1964 means that an employer cannot discriminate on the basis of “sexual orientation” or “gender identity”. Both majority and minority focus strongly on the issues of how statutes should be interpreted. In my view the concerns expressed by the minority about the “literal” approach of the majority judgment are well-justified, as are the possible detrimental implications for religious freedom in the USA. I will also comment briefly on how similar issues would be resolved in Australia.