Religious Discrimination Legislation

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The meaning of “sex” – in the UK and Australia

A high profile decision from the UK Supreme Court this week, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025) (“FWS“), holds that the word “sex” as used in the UK anti-discrimination legislation the Equality Act 2010 (UK) (“the EA 2010”), means biological sex, and that the term does not change its meaning in relation to those who have obtained a gender recognition certificate (“GRC”) under the Gender Recognition Act 2004 (UK) (“the GRA 2004”). In the circumstances of this case, this meant that where a “quota” had been established for certain governance roles requiring 50% of non-executive members to be women, that quota could not be met by including those with an “acquired gender” of female due to their holding a GRC.

But the ramifications of the decision go far beyond the specific quota legislation. The question that the court had to address was whether references to “sex”, “women” and “men” in the EA 2010 included those who held GRC’s and had an “acquired” or “certificated” sex. After an extensive review of the general provisions of the discrimination law, the court unanimously concluded that a GRC did not have the effect of deeming someone to have changed their sex for the purposes of the EA 2010.

As they sum up near the end of the decision, at [265] item (xviii):

The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate. 

As they point out, this does not remove other protections provided by the EA 2010 to transgender persons, whether or not they hold a GRC. But the ruling will have the effect that it will be possible to establish rules requiring that single-sex spaces such as changing rooms, bathrooms, and other areas designed for the use of one sex, can be reserved for those who have that biological sex and will not have to be made available to those who have the relevant sex through a GRC or claim to be of that sex on some other ground (see references to those issues in para [265] items (xiv) and (xv).)

While the decision itself does not refer to religious belief issues, the case will have important implications for religious groups whose conviction is that a person’s sex is that given at conception biologically, and cannot be later changed by other processes. (For a recent careful and scholarly analysis of the Christian perspective on these issues, see Robert S Smith, The Body God Gives (Lexham Academic, 2025), esp Part 3.) In the UK, those groups will be able to apply this view in the way that they provide services for men or women, or for girls or boys, in accordance with their faith commitments.

Of course the decision is not directly relevant to the law of Australia. But in this post I want to briefly compare the reasoning of the UK Supreme Court in its consideration of the EA 2010, with how a court in Australia might approach similar issues under Australian law, in particular in relation to the federal Sex Discrimination Act 1984 (Cth) (“SDA 1984”). Readers of this blog may recall that we have had a decision of a single judge commenting on some of these issues in the Tickle v Giggle litigation, which I previously suggested was wrongly decided. The reasoning of the Supreme Court of the UK here strongly supports my view that comments about the meaning of the category of “sex” made by the judge in that case were incorrect and should not be supported on appeal. (For an excellent overview of the FWS decision by a UK legal scholar cited by the court, see Michael Foran, “Sex has always meant biological sex“.)

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Challenges to Religious Freedom: Conversion Practices law passed, ALRC report released

A brief update on two significant challenges to religious freedom which have emerged over the last few days.

First, in NSW, the Conversion Practices Ban Bill 2024 has been rushed through both Houses of Parliament, receiving final approval on Friday March 22 after an all-night debate in the Legislative Council, and is now awaiting the Royal Assent. I posted about this Bill recently. There I said:

Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children, whether or not from a religious perspective.

In that more detailed post I outlined the problems with the Bill. I noted that it is at least better than some others which have passed, especially the bad Victorian law. But none of the suggested amendments put forward by faith groups and the Opposition and other members were accepted by the government, which had the numbers with the Greens to push it through unchanged.

So churches and other religious groups will need to consider carefully where the line can be drawn between counselling which urges someone to live in accordance with God’s will (by not engaging in sex outside a man/woman marriage, or by living in line with one’s biological reality), and counselling which “suppresses” a person’s “sexual orientation” or “gender identity”. The Bill (soon to be an Act) will also put a thumb on the scales of advice to those wrestling with gender confusion, in favour of “affirming” treatment, when the scientific evidence is becoming increasingly clear that for young people, puberty blockers and other such treatments are not shown to be of help, and lead to massive bodily change which can usually not be reversed.

The Act, once given assent, is due to come into operation in one year.

The second concerning development is that on Wednesday 21 March the Australian Law Reform Commission released its report Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws (ALRC Report 142). Far from “maximising” human rights, the report (as expected by those who spoke to some of its researchers) would have the effect, if adopted, of seriously impairing the operation of faith-based schools around Australia. In brief, it recommends removal of all of “balancing clauses” in the federal Sex Discrimination Act 1984 which currently recognise the need to balance the religious freedom of faith-based schools with rights of teachers and students not to be detrimentally treated on the basis of sexual activity or “gender identity”. In particular, this would remove (among other provisions) section 38 of that Act, which allows faith schools to operate in accordance with their religious ethos when making staffing and educational decisions.

The Prime Minister has noted that the government has not made a decision to formally accept these recommendations. He has indicated, however, that since the report was made available to the government in December, two draft pieces of legislation have been prepared (though not made publicly available). He has indicated he would like bi-partisan support from the federal Opposition. It has to be said that views on these issues seem so strongly held that this seems unlikely. But it will all depend on the wording of any proposed laws.

Australia needs to decide if it wants to offer parents the option of having their children educated in faith-based schools, or not. Many parents have signalled they want this option, by sending their children to such schools. But if those schools find that their very reason for existence, operating in accordance with a religious world-view, is taken away, it seems likely that many will decide it is not worth continuing operations. The federal government needs to listen very carefully to all sides of this debate.

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More issues with the Queensland Anti-Discrimination Bill 2024

I am happy to present a guest post today from Associate Professor Mark Fowler, raising more issues of concern from a religious freedom perspective with the recently released proposed Anti-Discrimination Bill 2024 . Dr Mark Fowler is Principal, Fowler Charity Law, Adjunct Associate Professor, University of Notre Dame, School of Law, Sydney and an External Fellow at the Centre for Public, International and Comparative Law, University of Queensland.

The concerns can be broadly grouped as follows:

  1. The Bill’s exception for employment by religious institutions would enact the most restrictive regime in Australia;
  2. The Bill will require religious institutions to provide services against their religious beliefs;
  3. The imposed ‘duty to eliminate discrimination’ will require religious institutions to proactively engage in activities that do not conform to their religious beliefs; and
  4. The Bill fails to protect religious individuals from discrimination when they engage in collaborative effort with fellow believers. 

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Queensland – new proposed discrimination law

The Queensland government has released a draft of a proposed new discrimination law for public comment. The proposed Anti-Discrimination Bill 2024 will make some radical changes to Queensland law, and of interest here is that it will seriously impact religious freedom in that State. One of the ways that religious freedom is protected in Australia is through the inclusion in discrimination laws of “balancing clauses” (provisions that balance the right not to be discriminated against, with the important right of religious freedom). But the new Bill will dramatically narrow those clauses.

I am pleased to present a guest blog post commenting on some religious freedom impacts of the draft Bill, from Dr Alex Deagon, an Associate Professor in the School of Law at QUT, and an internationally recognised researcher in religious freedom.

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Law and Religion in the Commonwealth- paperback version

I previously posted about the publication of an edited collection of papers on Law and Religion issues around the Commonwealth, of which I am one of the editors. The book was available in hardcover and in an ebook version, but is now about to be released as a paperback in December. (The only difference is the reduced price!)

The publication date in Australia and New Zealand is 28 December 2023 and the webpage can be found here: https://www.bloomsbury.com/au/law-and-religion-in-the-commonwealth-9781509950188/. 

Readers of this blog can use the discount code GLR AQ7 , which entitles you to a 20% discount off a purchase of the book made on the Bloomsbury website. 

Just as a reminder:

Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.  

The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria. 

The cases are divided into four sections covering:
– Foundational Questions in Law and Religion
– Freedom of Religion around the Commonwealth
– Religion and state relations around the Commonwealth
– Rights, Relationships and Religion around the Commonwealth.

Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include: 
– Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia
– The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia 
– Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights 
– R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.  

The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.

My chapter is an analysis of the key Australian case, Christian Youth Camps Limited v Cobaw Community Health Services Limited and is sub-titled “Balancing Discrimination Rights with Religious Freedom of Organisations”.

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Freedom for Faith conference- Nov 6, 2023

I am pleased to share details of the Freedom for Faith annual conference- this should be a great day to consider religious freedom issues in Australia. (I am on the board of Freedom for Faith, and would encourage anyone interested in this area to support the organisation as it seeks to advocate for religious freedom for all!)

Freedom for Faith invites you to its annual conference, FREEDOM23, on November 6th at Village Church Annandale (Sydney) and live streamed.

FREEDOM23 will inform you about the current threats to religious freedom and their effects on families, churches and faith organisations, equip you to be ready for what lies ahead, and to advocate for religious freedom now, and encourage you in the knowledge that together, our voices can be heard.

The day will be particularly helpful for church and other religious leaders, those working in faith organisations, and anyone concerned about threats to religious freedom.

FREEDOM23 speakers include:

  • Max Jeganathan – Senior Research Fellow at the Centre for Public Christianity (CPX), former lawyer and policy advisor.
  • Mike Southon – Executive Director of Freedom for Faith
  • Dr Alex Deagon – Associate Professor of Law, QUT
  • Nick Jensen – Political liaison for the Australian Christian Higher Education Alliance (ACHEA)
  • Peter Fowler – CEO of The Anglican Schools Corporation

For in-person and streaming tickets: https://fff.org.au/f23.

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The Ethics of Freedom: Religious Freedom in the Workplace

I am presenting a paper at the annual City Legal conference on August 25 on The Ethics of Freedom: Religious Freedom in the Workplace. It considers issues around religious freedom of employees and also touches on issues arising for Christian lawyers in particular. It can be downloaded here.

the-ethics-of-freedomDownload
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A Human Rights Charter for Australia? A Guest Blog Post.

Recently the Australian Human Rights Commission has issued a Position Paper entitled A Human Rights Act for Australia . I have often commented here on the gaps in protection for religious freedom under Australian federal law, and one suggestion that has sometimes been made is that Australia should implement internationally recognised rights such as those contained in art 18 of the International Covenant on Civil and Political Rights. But is doing this by way of a federal Human Rights Charter the right way to go?

I asked one of Australia’s leading commentators on international human rights issues, Dr Paul Taylor, to offer some preliminary comments on the proposals that have been put forward. Dr Taylor is an Honorary Senior Lecturer in the T.C. Beirne School of Law, a Fellow of the Centre for Public, International and Comparative Law, and an Adjunct Professor at the School of Law, The University of Notre Dame Australia. His principal academic interests are international human rights law and conflict of laws (private international law). He has held Visiting Fellowships at Wolfson College, Cambridge and at the Centre for International and Public Law, College of Law, Australian National University. He is the author of A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights’ Committee’s Monitoring of ICCPR Rights (Cambridge University Press, 2020); and Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005).

Dr Taylor has provided the following comments as a guest blogger. The comments are of course written in a personal capacity, and do not reflect any views of any institution to which he is or has been affiliated.

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Removing fences: the ALRC Consultation Paper on Religious Educational Institutions and Discrimination Laws

The Australian Law Reform Commission has now released a Consultation Paper for its current reference on “Religious Educational Institutions and Anti-Discrimination Laws”. The paper, while formally acknowledging the importance of religious freedom and parental rights, will be a serious disappointment to those involved in religious schools and colleges. It effectively recommends the removal of protections enjoyed by religious educational institutions which have been designed to safeguard the ability of these organisations to operate in accordance with their religious beliefs. The “fences” protecting these bodies from being forced to conform to majority views on sexual behaviour and identity (and hence losing their distinctiveness as religious bodies) are to be knocked down, the ALRC says. But the paper offers no convincing reasons for this wholesale demolition of a structure which has served the diversity and plurality of the Australian community for many years. Rather than supporting “Diversity, Equity and Inclusion”, the paper’s recommendations would require a compulsory uniformity which would undermine the reasons for the existence of faith-based educational institutions.

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Successful religious discrimination claim in foster-carer case

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.

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