Schools and Religious Freedom

neilfoster

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The controversy began in Charlotte where the city council repealed an existing ordinance that specifically excepted restrooms, showers, and similar facilities from the prohibition on sex discrimination.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

Prayer groups, schools and “radicalisation”

The NSW Government is understandably concerned at what appear to be revelations of violent Islamic-State inspired teaching in public schools. The October 2 shooting of police employee Curtis Cheng at the hands of a 15-year-old schoolboy, Farad Jabar, while shouting Islamic slogans and having just visited the Parramatta mosque, has shocked the public. Other pupils from the same school, Arthur Phillip High School, are under suspicion. Another former pupil of the same school is in custody, apparently suspected of encouraging the act.

These events have sadly seemed to confirm the concerns that were raised earlier this year when a student from another school, Epping Boys High, was being investigated for preaching violent extremism.

There can be no doubt that the Government needs to be rightly concerned about student groups where violence is being preached and encouraged. But there are serious dangers to religious freedom emerging in some of the suggested solutions being offered.

A number of recent opinion pieces suggest that “prayer groups” in general need greater monitoring. Some, such as an article by Greens member of Parliament John Kaye, are urging the Government in effect to ban all religious groups meeting in public schools:

Dr Kaye said: “If radicalisation of Moslem students is occurring in NSW public schools, it is because proselytising Christian groups have protected their right to run lunchtime religious meetings.

“The real blame lies with successive NSW governments that have failed to stand up to the push to turn public schools into recruiting grounds for aggressive religions of all types.

In short, opponents of Christian involvement in schools are exploiting the opportunities presented by violent Islamist preaching to further their agenda to attack all religions.

Hopefully the Government will be able to resist the simplistic equation presented in the form: 1. This violence is inspired by Islam. 2. Islam is a religion. 3. We should deal with the violence by banning all religion. In other words, to spell out more clearly the obvious non sequitur:

  1. A (Islam) has led to B (violence.)
  2. A is a member of the class R (religions.)
  3. Therefore all members of the class R lead to B and should be banned.

Or, to give another example:

  1. A (a music group) performs B (disco music.)
  2. A is a member of the class M, music groups.
  3. Therefore all music groups, M, perform disco music and should be banned.

As much as one might agree with proposition 3 as applied to disco groups, it clearly is not true as applied to all music groups!

Of course distinguishing between music groups requires something of a knowledge of the principles of music, and a willingness to say that some music is good, and some is bad. That may take courage in a world which is theoretically committed to the proposition that all music is the same! But we know in practice that this is just not the real world.

An article making the same point, though thankfully with no reference to disco music, was published recently by Michael Jensen. He puts it this way:

[I]n its rush to look tolerant and even-handed, the liberal commentariat has worked itself into a lather of confusion. It cannot name the thing right in front of its face. The truth is this: in contemporary Australia, it is Islam, and only Islam, that has the problem with radicalisation. Not the Sikhs, not the Jews, not the Buddhists, not the Christians, not the Greenpeace youth group that meets down the road.

That is not to say that these groups have never had a problem with radical extremism, historically. But the problem presenting us today is quite a specific one.

Of course, the numbers even within the Islamic community that are radicalised are still tiny. Picking on or vilifying Islamic Australians in retaliation for the violence committed by a small group within it is totally out of order, and likely to be counter-productive.

But by speaking in vague terms about “extremism” and “radicalisation” and introducing laws and processes to which all religious and ideological groups have to submit, we are risking the very freedoms that we are trying to preserve.

To say that any limitations must now be imposed on “Christian, Buddhist or Jedi”, as one recent opinion piece suggests, just makes no sense at all. There is a problem within the Islamic community, a problem which is now being clearly acknowledged by leaders of the community. But this problem will not be solved by forbidding all prayer by students at schools.

Such a move would be a completely disproportionate over-reaction to a problem within a specific community. Australia is a party to, and supporter of, international instruments which provide clear protection for the religious freedom of its citizens. The International Covenant on Civil and Political Rights, article 18, declares that the right to religious freedom is a fundamental human right. Religious freedom, if it means anything, means the ability to gather together with others and practice one’s religion. Of course there are sensible limits that need to be placed on this freedom where a religious gathering is suspected of encouraging religiously-inspired violence. But to introduce a blanket ban on groups of students getting together at lunchtime to discuss their faith, especially where there is no evidence except in the Islamic community that such is happening, would be a serious interference with religious faith for no good reason.

Indeed, it may in fact be doubted that even in relation to Islamic groups, a complete ban is sensible. One article reports:

the Friday prayers that were being held at Arthur Phillip High School, which Jabar had attended, had been suspended in September, a move that possibly influenced Jabar to go to the Parramatta mosque to pray.

In other words, perhaps the fact that the group was not operating meant that religious counsel was sought from other sources where worse advice was received. This is speculation, of course; but it seems reasonable to suppose that a group which is meeting at a school, perhaps with the assistance of a trusted member of the religious community and under occasional surveillance by teachers, may serve to curb some of the more violent teaching that can be found elsewhere.

Further, it seems likely that the guidelines being promulgated in NSW schools at the moment may already go further than is necessary to deal with the problems. It has been reported that schools have been told that prayer groups can only be allowed to operate under these conditions:

parental permission must be obtained, activities must be monitored, and no proselytising.

While the first two conditions are not ideal, they may be necessary in the present circumstances. But the final is odd. The word “proselytising” needs detailed discussion on its own, but what is odd is that there has been no suggestion in the concerns about “radicalisation” that the Islamic prayer groups are trying to persuade Baptists or Hindus to become Muslims, which seems to be one of the popular senses of the word. This ban seems more closely linked to a general “secularist” agenda, than to problems of possibly violent Islamic prayer groups.

On general religious freedom grounds, it is clear that in international law the right to manifest one’s religion includes a right to respectfully encourage others to agree with one’s religious beliefs. Justice Kirby put in this way in NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1; (2005) 79 ALJR 1142 (26 May 2005), citing a decision of the European Court of Human Rights:

[121]…In Kokkinakis v Greece[1], that Court affirmed that religious freedom includes the freedom:

“[T]o manifest one’s religion … not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour … through ‘teaching’, failing which … ‘freedom to change [one’s] religion or belief’ … would be likely to remain a dead-letter.”

[1]      (1993) 17 EHRR 397 at 418.

The right to respectfully persuade, of course, is not a right to “ram one’s views down another’s throat”. But the danger in a prohibition on “proselytising” is that banning the second may be thought to imply banning the first. When we are addressing the question of what one school student may say to another, in discussion of their religious views, it surely is far too intrusive to suggest that there can never be a conversation which politely commends the truth of one’s views to another person.

In conclusion, there are justified concerns about the preaching of violence against non-believers among some Islamic groups (not all such groups, of course) at high schools. Energies should be directed towards those sort of groups where such discussions have led to actual violence. But nothing would be surer to generate an “underground” group, attractive because of its very “banned” nature and hence unable to be monitored or guided, than a blanket ban on prayer groups at schools. Support for religious freedom at schools, and the free and open discussion of religious issues, will send the signal to students of support for religious freedom in the community at large, and will itself be another way of undermining an ideology which seeks to impose its will by threats of violence on religious grounds.

neilfoster

Religious Freedom in the Newcastle Herald

Today I had an opinion piece in the Newcastle Herald entitled “Free to live by one’s beliefs“. The issues raised here are among those to be discussed at the Religious Freedom in a Multicultural World conference to be held at Newcastle University this Friday September 25. If you would like to come, see the website here for details and a link to register. (By the way, if you are a pensioner or in receipt of Government assistance generally, you can register at the Student rate of $25 rather than the full rate!)

After the conference I will be posting the paper I am presenting on this blog, and I hope that the other talks will be recorded so we can share them more generally.

neilfoster

Schools, same sex politics and religion in NSW

The Minister for Education has asked that a controversial documentary, “Gayby Baby”, be shown outside school hours, rather than as part of the school day, at Burwood Girls High School, in Sydney’s inner West. As the ABC correctly reports:

Burwood Girls High School sent parents a flyer last week informing them that all students would attend a screening of the film Gayby Baby during class hours on Friday, as part of Wear It Purple Day — an initiative designed to promote acceptance and tolerance of diversity.

The PG-rated film follows the lives of four children — Gus, Ebony, Matt and Graham —growing up with gay parents.

No-one can deny that the film deals with an important issue being debated in Australian society today. Indeed, the trailer shows at one point some of the participants watching a television show where the merits of same-sex marriage are being debated. As pointed out in one media comment:

A review highlighted on the Gayby Baby website describes it as an “intrinsically political” documentary and says children of “queer” parents are being used to counter opponents of so-called marriage equality.

So there is no doubt the film is “political”, as dealing with a matter of highly charged debate in the Federal Parliament and in the public sphere. Yet the school was proposing to cancel classes and direct all students to attend, while also encouraging (if not directing) all of them to wear the colour purple as a mark of support for homosexuality. The original notice from the school to parents was very clear: “All students will attend a special screening….followed by purple cupcakes and fashion parade at lunchtime under the rainbow flag. Please wear purple.” A letter from the Principal enthused: “I look forward to seeing a sea of purple.” There seems to have even been a suggestion of a prize for the “most purple” outfit.

The Department of Education and Communities policy on “Controversial Issues in Schools” provides that:
1.1  Schools are neutral grounds for rational discourse and objective study. They are not arenas for opposing political views or ideologies…
3.1 Schools are places where students are preparing for informed and reasoned involvement in community life, including its politics, by calm and co-operative study of social issues. Schools are not places for recruiting into partisan groups…
4.1 The Principal is responsible for ensuring a balanced and reasonable consideration of various viewpoints is contained within curriculum content delivered by teachers, within presentations to students at schools by visiting speakers and while undertaking school excursions…
4.8 It is the responsibility of the Principal to ensure that staff are familiar with the substance of this policy, that parents are made aware of its implications and, where appropriate, are consulted with regard to the participation of their children in programs dealing with controversial issues. (emphasis added)
In light of these policies it seems fairly clear that this documentary would either be unsuitable for showing during class time, or parents ought to have been consulted as to whether they wished their children to attend. At the very least parents should have been provided with an opportunity to view the material beforehand, and to make their own judgment about its balance, and whether it presents a reasoned perspective on the issues. Yet the initial contact with parents made no such offer.
Subsequently, after it became apparent that a number of parents were concerned, and a local Presbyterian minister had made representations on their behalf, a belated letter from the school offered an option for children to be withdrawn from the activity and offered other activities in the library. (The letter appears in this press comment.)
By this time, however, the Minister for Education had become involved.

Education Minister Adrian Piccoli confirmed he had intervened.

“I have directed the Department of Education to ensure the film is not shown during school hours,” he said.

(The NSW Premier) Mr Baird said he supported schools screening the film, but not during class.

“I understand the intent of that is to provide an example of tolerance and that’s something I absolutely support,” he said.

“Should it be in class time? No, I don’t think so. Should it be optional? Yes, I do think so.”

Naturally there has now been strong criticism of the decision of the Minister not to allow the movie to be shown as part of formal school teaching time.
Some might suggest a similarity between this incident and a previous episode where the Department had attempted to exclude certain books from being used in Special Religious Education classes in high school, in part because those books taught the Biblical view that sex is only intended for the context of marriage between a man and a woman. I commented on that episode previously here and here. The Department’s decision was subsequently reversed.
But drawing those connections would, in my view, be wrong. SRE is provided in NSW Schools as an openly “confessional” program, teaching the beliefs of a particular religion from that religion’s perspective. It is explicitly authorised by legislation, and all parents have the right to withdraw their children from the classes at any time. By contrast, the mainstream teaching time in State schools is intended, as the Department’s legally binding policy quoted above makes clear, not to push a specific “political” agenda. And here, the school as it originally communicated to parents did not suggest that it was giving parents an option to withdraw their children from a film which would clearly, from viewing the trailer, be presenting a clear view in favour of homosexuality. Parents who hold a view that, in accordance with their religious commitments, such behaviour is wrong, should be entitled to not have that view undermined by powerful propaganda to the contrary, when that material is not part of the school curriculum.
It is obviously a good idea that a calm and reasoned debate be allowed to happen on same sex marriage and other issues to do with same sex attraction. There is no doubt that children of same sex parents have particular issues that they wrestle with, and that their situation needs to be understood. However, evenhanded discussion of these important issues cannot happen where there is an “official” assumption that anyone who holds to a traditional religious view on the morality of homosexuality is a “bigot” whose views can be ignored or marginalised in public life. The school’s apparently automatic assumption that a particular view on these matters could be presented in school hours alongside maths and chemistry, as a matter of established consensus, sends that signal.
The Departmental policy noted above seems a sensible one- where matters of this highly controversial nature are involved, they should and will be discussed within families and in other venues. They can be discussed in contexts that are set aside for presentation of religious perspectives, such as SRE classes, or among students themselves. But it does seem inappropriate that a school officially present one side of the debate as if all the issues were settled, without regard to deeply held views of parents and children.
(In the interests of full disclosure, I should mention that I have a relative attending the school in question. But all that means is that I saw some of the correspondence before it came into the public domain. I would be equally concerned about this sequence of events at any public school.)
neilfoster

“Extremism” in schools and religious freedom

The NSW Government is rightly concerned about reports from Epping High School, in Sydney, that a student at a “prayer group” meeting at the school was preaching Islamic State ideology to fellow students. It seems that an “audit” is being conducted of “prayer groups” generally to see if others are involved in spreading “extremist” ideology.

While there is no doubt some good reason to be concerned here, there are a number of potential problems flowing from this situation for religious freedom. One of the first issues to be cleared up is this: what is “extremist”? The press report linked above notes, thankfully, that some attempt is being made to give it a confined meaning:

[D]eputy police commissioner Catherine Burn… explained that police defined extremism as “willingness to use violence or support the use of violence by others to promote a political, ideological or religious goal”.

This seems like a reasonable approach. While students, like their parents, should be able to enjoy religious freedom to meet for prayer and discussion in their lunchtimes, it is clear that the limits of religious freedom are reached when this freedom is used for the purposes of generating violence. (I discussed religious freedom in Australia generally in a previous post, and there I noted that one of the earliest Australian decisions on the topic, the Jehovah’s Witness case from 1943, gave strong support to religious freedom as a value, but noted that it had to give way when questions of national security were at stake.)

However, it would be easy to slide from a justified concern about the preaching of religiously motivated violence, into a more “expansive” definition of “extremism” which really would challenge religious freedom in unjustified ways. We can see this danger emerging already in an article in the Newcastle Herald, “Preaching in playground: DET ‘ignored’ repeated warnings” (July 28, 2015). There a lobbyist previously associated with attacks on Special Religious Education in schools (see my previous posts here and here for reports of former attacks on SRE) jumps on the “extremism” bandwagon to claim that his previous “warnings” on the topic should have been heeded. But those warnings, so far as the article claims, seem mainly to have been about “religious groups trying to convert students in public schools”, not about the preaching of violence. Indeed, it seems highly unlikely that the student in Epping was speaking to non-Muslims; one would imagine his words were directed to other Muslim students.

But the difference between the two is elided in an article which seeks to tar any religious group which presents its teachings seriously, as being “extremist”. And, of course:

you can’t cherry pick which religions with extremist views you allow in, and which ones you don’t.

Well, with respect, you can distinguish between different “religious” groups, and have to, precisely on the grounds of what they teach. Some religious views are “extremist” and others are not. This means, of course, that schools are quite justified to generally monitor the content of what is being taught in school religious groups, so long as this is not done in such a heavy-handed way as to stifle all expressions of religious faith by students. And it will be perfectly rational to be more careful with religious groups where high-profile representatives of the religion concerned have been known to make clear public pronouncements about inflicting physical violence on non-believers.

Unfortunately the developing issues here in NSW reflect to a large extent developments on a far more serious scale in the United Kingdom. There, in a scandal in 2014 that engulfed a number of government-run schools which came to be known as the “Trojan Horse” incident:

An investigation ordered by the government.. found a “sustained, coordinated agenda to impose segregationist attitudes and practices of a hardline, politicised strain of Sunni Islam” on children in a number of Birmingham schools.

The investigation of this incident, of course, led to a Government determination not to allow hard-line Islamic views to dominate in government schools. Unfortunately, it seems that the lazy “all religions are the same” attitude of some bureaucrats has led to proposals to severely restrict all religious groups, not just those advocating religious violence, from presenting their views in schools. Indeed, in more recent times the UK Government has proposed a system of “Extremism Disruption Orders” which are seen as raising important challenges to freedom of speech and religious freedom. In an attempt to deal with the very real threats of religiously inspired violence, the danger of sweeping up religious views generally, especially those which do not conform to the current “sexual orthodoxy”, is a very real one. In an important article, Extremism and Censorship, the Gatestone Insitute notes that the definition of “extremism” that the UK Government seems to have adopted is:

vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs.

What, then, are “fundamental British values”? Again this is unclear, but one commentator has noted:

Those engaged in passionate debates — such as Christians objecting to gay marriage — could find themselves slapped down. Monarchists or communists could be swept up for peacefully expressing their political views.

Indeed, the Christian Concern group in the UK reports that recent comments of the Education Minister there seem to suggest that

the Christian teaching about marriage and sexual ethics would now be labelled as an “extremist view that needs to be monitored and punished.”

In short, we need to be discerning about the sort of views which are targeted when we start using the label “extremist”. The Gatestone Institute, in the post linked above, notes that governments will need to be discerning in deciding which religious groups receive funding and support, and which don’t. It will be necessary to “cherry-pick”- to listen to the views that are being presented by different groups, and where viewpoints are to be opposed, to only do so in the most serious cases of physical violence against others being advocated and supported. Differences of opinion on other matters, on sexuality, on abortion, on forms of government, on asylum seekers and climate change, need to be tolerated and debates allowed to continue. There will be no substitute for careful and thoughtful work with religious groups and their leaders, and on occasions the drawing of clear lines. But suppression of religious freedom can only be justified by the most serious forms of direct harm, and should never be engaged in merely to avoid “offence” or “annoyance”.