Sexual orientation discrimination

neilfoster

Volume 2 of Australian Journal of Law and Religion available

The second issue of the Australian Journal of Law and Religion is now available online here. There are a number of important issues covered. The Table of Contents gives an idea:

 Editorial i 

Articles 

May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster Nicholas Butler 1 

Reconciling Freedom and Equality for Peaceful Coexistence: On the Need to Reframe the Religious Exemptions in the Sex Discrimination Act Alex Deagon 20 

The Position of Religious Schools Under International Human Rights Law Mark Fowler 36 

Legislating Gender Prejudice: Religion and the Overturning of Roe v Wade Rena MacLeod 56 

Conversion Practices Legislation in Victoria – A Potential Crisis for Church Authority? Rhett Martin 70 

Statements of Belief as Political Communication Timothy Nugent 81 

Book Reviews 

Law and Religion in the Commonwealth: The Evolution of Case Law edited by Renae Barker, Paul T. Babie, and Neil Foster Barry W. Bussey 90 

The Transgender Issue: An Argument for Justice by Shon Faye Jeremy Patrick 93 

Special Topic Forum: Religious Freedom, Sexuality, and Gender Identity 

Cherry Picking Human Rights Nicholas Aroney 95 

What Does Gender Identity Mean in the Sex Discrimination Act 1984? Patrick Byrne 101 

The Politics of Indonesia’s New Criminal Code Robert W. Hefner 104 

Of course each reader will have their own specific areas of interest. I was obviously very interested to see that one of the articles is a rejoinder to an article I had published in volume 1, dealing with the impact of differing discrimination laws applying to faith based schools (and other institutions) in Commonwealth and State laws (see Butler, from p 1.) Readers will have to make up their own minds as to whether Mr Butler’s critique of my position is valid or not. I was also pleased to see an encouraging review of the edited volume Law and Religion in the Commonwealth , of which I was a co-editor (see Bussey, from p 90).

I look forward to reading the other articles in due course! I very much commend the editors for their decision to make all the articles freely available for download.

neilfoster

Is declining to print a Pride poster unlawful?

Press reports today record that a local franchisee of company “Kwik Kopy” declined a request to print posters for an event associated with the “World Pride” events happening in Sydney at the moment- see this report from Nine News. The World Pride events are in effect an extension of the Sydney “Gay and Lesbian Mardi Gras” parade which has been running for many years, although extended over 17 days. Their website refers to it as “a glittering celebration for the global LGBTQIA+ community”. 

But, of course, not everyone is on board with an event celebrating sexual activity outside heterosexual marriage. Mr Wing Khong, a Christian man who runs the Sydney CBD franchise of Kwik Kopy, declined to accept an order from Skater Leo Bunch, who emailed to ask for a quote to print “roller derby” flyers with a World Pride theme. Mr Khong commented:

“There was no offence meant. Everyone is entitled is to their own position. I don’t believe it was discrimination, rather I was just obeying the Word of God.” 

The news report linked above contains video comments from the reporter and also Anna Brown, from Equality Australia, that Mr Khong’s action was “clearly unlawful”. With respect, I beg to differ, and would like to explain why.

Continue reading

neilfoster

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.

Continue reading

neilfoster

ALRC inquiry into Religious Educational Institutions and Anti-Discrimination Laws

The Commonwealth Attorney-General has announced that the Australian Law Reform Commission will be conducting an inquiry into the general area of “Religious Educational Institutions and Anti-Discrimination Laws”. Detailed information about the inquiry can be seen at their home page.

Readers may recall that the ALRC had previously been given a wider inquiry by the former government: the web-page notes that

The Terms of Reference replace a previous Inquiry into religious exemptions in anti-discrimination legislation that has been on hold since March 2020.

This new inquiry, while narrower in terms of being limited to religious educational institutions, comes with a number of assumptions that some may find problematic:

The Terms of Reference describe the Government’s commitments as ensuring ‘that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

  • must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
  • must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
  • can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff’.

The Commission has indicated that it will have regard to submissions made to the previous inquiry, but that it also “will undertake further consultations”. Organisations and individuals who are interested in making submissions to the inquiry (when public submissions are called for) can “subscribe” to email updates from the ALRC here. Given that the inquiry has quite a tight timeline (it is due to report on 21 April 2023) I suspect that submissions may need to be put together fairly quickly over the Christmas/New Year period.

Update

The ALRC has now released a consultation timetable (which can be seen here) which indicates that they will be releasing a discussion paper for general comments on 27 January 2023, to which responses need to be provided by 24 February 2023.

neilfoster

ACT Discrimination Law “Reforms” Narrow Religious Freedom

The Australian Capital Territory government has released an Exposure Draft of a Bill to amend that jurisdiction’s Discrimination Act 1991 (“DA”). They have invited public comment by 1 July 2022. As key protections for religious freedom in Australia are often found in “balancing clauses” in discrimination legislation, it is always worth keeping an eye on reforms to these laws. Sadly, these proposed reforms will significantly narrow religious freedom protections in the ACT.

Continue reading

neilfoster

Religious Freedom Challenges for Theological Colleges in Australia

I am presenting a paper to a seminar for senior leaders in Australian theological colleges, dealing with religious freedom challenges. I comment briefly on some of the current protections provided, but also how those protection have been eroded recently, especially in Victoria (where amendments to the Equal Opportunity Act 2010 (Vic) which I previously commented on have now commenced.) A copy of the paper can be downloaded here:

religious-freedom-challenges-for-theological-colleges-in-australiaDownload
neilfoster

Blessing same sex marriages in the Anglican Church in Australia

The question as to whether same sex marriages entered into under Australian civil law can be blessed in an Anglican Church service is one that has generated much disagreement within the church. An important Opinion of the Appellate Tribunal of the Anglican Church of Australia in relation to a question posed by the Diocese of Wangaratta (Primate’s References re Wangaratta Blessing Service, 11 Nov 2020) held that it is lawful for a diocese to approve such a formal blessing. I have now contributed a chapter to a book of essays prepared for the consideration of the forthcoming General Synod discussing the issue, analysing the Majority Opinion and its implications. The chapter is available for download here, for those who are interested. I conclude, in brief, that as a matter of internal Anglican doctrine, the decision is contrary to the “doctrine of the Church”, which finds its ultimate source in the Bible. The Majority Opinion takes a too narrow view of the word “doctrine”, in my view. I suggest that this may have consequences outside the church:

unfortunately the narrow view taken by the Majority Opinion of the Appellate Tribunal may encourage a narrow view of the word to be taken by [secular] courts in the future, with the result that clauses protecting religious freedom may be unduly read down.

At p 47.

From the perspective of the general law of Australia, a church which declined to bless a same sex marriage might be accused of “sexual orientation” discrimination if they would offer such a blessing to a heterosexual couple. But balancing clauses under discrimination law would seem to have the effect that such a decision would not amount to unlawful discrimination, if the decision was:

(d) [an] act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

Section 56, Anti-Discrimination Act 1977 (NSW)

(See also the similar provision in s 37 of the Sex Discrimination Act 1984 (Cth).)

It seems to me to be fairly clear that the “doctrines” of the Anglican Church would prevent the blessing of a same sex marriage. Indeed, the General Synod of the church said as much in a 2017 resolution:

the doctrine of our church, in line with traditional Christian teaching, is that marriage is an exclusive and lifelong union of a man and a woman (emphasis added)

See ‘MARRIAGE, SAME-SEX MARRIAGE AND THE BLESSING OF SAME-SEX RELATIONSHIPS’, adopted 7 Sept, 2017, at https://anglican.org.au/the-general-synod/search-resolutions-of-gs-sessions/?sid=2827  

But the Majority Opinion of the Appellate Tribunal might cast some doubt on that proposition, and as a result needs urgent consideration by the next General Synod.

neilfoster

Religious Discrimination Bill passes lower house along with SDA amendment

This morning Australia woke up to the news that at an all-night sitting which concluded around 5 am, the House of Representatives has passed the Religious Discrimination Bill 2022. (The link there will take you to official Parliamentary site for the Bill; as I write the updated version given a third reading has not been published but should be later in the day.) The government amendments which I noted in a previous post were apparently all accepted.

There was an amendment moved by the Opposition which came very close to being accepted, but which in the end did not pass. (It can be seen here in the Opposition amendments document.) It would have introduced a prohibition on “religious vilification”. I do not think Australia needs more such laws; in the time available now let me link a paper I produced a few years ago on the dangers of limiting free speech in this way.

However, the package of bills also includes the Human Rights Legislation Amendment Bill 2022, which saw an Opposition amendment accepted when 5 members of the government crossed the floor. The third reading text of that Bill, which will now go to the Senate with the other bills in the package, is available here. In effect, as had been foreshadowed, the Opposition amendment will repeal s 38(3) of the Sex Discrimination Act 1984 (Cth) (“SDS”). It will also amend s 37 of that Act to ensure that the general balancing clause in that Act cannot be used by religious schools to avoid the effect of the repeal of s 38(3).

Sub-section 38(3) is part of s 38 of the SDA, which allows educational institutions “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to act in accordance with those beliefs even if such actions would otherwise amount to unlawful discrimination under the SDA. Sub-section (3) allows such actions “in connection with the provision of education or training”, despite the general prohibition on discrimination in those circumstances set out in s 21 of the Act.

The “presenting problem” was seen to be the possibility that a faith-based school would expel a student on the grounds of their sexual orientation or gender identity. Leave aside the fact that as far as I am aware no religious school in Australia has ever done this. What s 38(3) provides is a statement that a religious school can operate in teaching and caring for students in accordance with its faith commitments, which is the very reason for its existence! To simply repeal it is, in my view, a bad move.

To give an example: a student group wants to set up a “Pride” club supporting homosexual activity. This is contrary to the teachings of the religion. The school says the club cannot be advertised in the school newsletter or use school premises at lunchtime. Will the school be discriminating under s 21(2)(a) by  (a)  by “denying the student access, or limiting the student’s access, to any benefit provided by the [school]”? The answer is not clear. The decision is arguably not made “on the ground of” sexual orientation- the school can say it would deny such a request even if made by a group of heterosexual students. The school may be able to rely on the difference between decisions based on orientation, and decisions based on viewpoints about orientation, which lay behind the successful defence by Christian bakers in the UK who had declined to prepare a “Gay cake” (a decision recently affirmed in the European Court of Human Rights). But to do so it may require expensive and time-consuming litigation.

Other examples can be offered. A senior female prefect becomes pregnant, and is removed from the leadership group because her actions (while unmarried) contradict the school’s religious stance on sexual activity outside marriage. A male student identifies as female and demands to be allowed to use the girl’s change rooms, and is not allowed to. Many people in the community would object to these decisions taken by a school. But others, especially parents who have entrusted their children to these schools so that they can learn in an environment which support their own faith commitments, will support them. In a pluralistic society it seems clear that we should have room for religious communities to operate schools in accordance with their faith, especially when they are prepared to make financial sacrifices to pay for them.

These issues should not be resolved on the run by emotional appeals. The Australian Law Reform Commission is set up to conduct detailed inquiry into the matters, and should be allowed to move ahead with that inquiry to ensure that all relevant interests are heard and properly balanced.

Meanwhile, the package of Bills will now go to the Senate for further debate.