Sexual orientation discrimination

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Religious school tells parents it will apply its religious beliefs

The above heading doesn’t sound very exciting, does it? Isn’t that what one would expect, that a school set up to educate students in a particular religious view would apply those beliefs in its practices? But the press in Australia sees it differently, apparently. “School rules: Brisbane college expects students to denounce homosexuality” is the way that the Sydney Morning Herald puts it (Jan 31). Citipointe Christian College has sent a letter to parents spelling out its views on a number of issues, letting them know that the College expects students and parents to be aware of these views if students are to be sent there. Here I will comment on whether the College is legally justified in so doing.

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Challenge to “Gay Marriage Cake” decision dismissed

Some years ago now the UK Supreme Court ruled that a Christian bakery company had not been guilty of sexual orientation discrimination when it declined to produce a cake for an activist designed to convey a political slogan in favour of same-sex marriage- see Lee v Ashers Baking Company Ltd [2018] UKSC 49 (10 Oct 2018) and my comment at the time. Now, after a long delay, an challenge to that decision by the customer, Mr Lee, has been finally dismissed by the European Court of Human Rights: see here where a copy of the judgment in Lee v United Kingdom (ECHR 4th section, Application no. 18860/19, 6 Jan 2022) can be downloaded. (A short summary is available on this page.)

(A preliminary comment on the nature of this challenge should be made. The details are spelled out clearly in an excellent comment on the decision by Prof Mark Hill QC, available here. This was not a formal “appeal”- the initial defendants, Ashers, were not parties to the case. Instead it was a claim by Mr Lee that the UK government should be held accountable for the decision of the UK Supreme Court not upholding his rights. Still, a finding against the UK would have cast into doubt the legal validity of the decision of the Supreme Court. This comment has been amended since first posted to take into account these matters.)

The grounds for refusing the challenge can be stated fairly shortly. Under the rules of the European Court of Human Rights, if that court is to hear an case based on a breach of the European Convention on Human Rights, the applicant must have raised specific convention rights in his or her claim at the local level. But unfortunately for Mr Lee, none of his claims explicitly raised Convention arguments; he had made his case entirely based on the domestic UK laws. As they said near the conclusion of their decision:

[77]…In a case such as the present, where the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts…

This was the case even though the defendants in the case, the Ashers, had relied extensively on the Convention rights of freedom of religion and free speech. But the ECHR held that this did not overcome the problem that the applicant himself had not raised those issues.

The result is that the challenge has failed, although the ECHR has avoided making any clear comment on the substantive issues as to whether a business owner should be allowed to decline to make an artistic product which expresses a view which the owner fundamentally disagrees with. They do say at one point however:

[73]…What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing the applicant’s political support for gay marriage.

The decision of the UK Supreme Court in 2018 stands as good law, and in my view this is a good thing for free speech and religious freedom. It should perhaps be stressed that the cake concerned was not a wedding cake, it was simply a cake designed to celebrate and support a view on the political issue of recognition of same sex marriage. Lady Hale in the Supreme Court, as the ECHR noted here, pointed out that :

“ … People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.”

Lady Hale, Ashers (2018) at [25], quoted by the ECHR in Lee v UK at [24].

The ECHR summed up the decision in this way:

36. In summarising the court’s position, Lady Hale noted that the defendants would have refused to supply this particular cake to anyone, whatever their personal characteristics. As such, there had been no discrimination on grounds of sexual orientation.

This remains as true today as when it was stated in 2018.

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Expelling students from religious schools based on sexual orientation?

Current press reports suggest that the Federal Government is contemplating a change to the provisions of the Sex Discrimination Act 1984 which allow religious schools to operate in accordance with their religious commitments, in the area of decisions about students. This is being proposed to allay fears that the recently introduced Religious Discrimination Bill will impact on LGBT students. (See here for my overview of the Bill.) Just to be clear, I think this is a terrible idea- the Australian Law Reform Commission already has a reference on this issue and they should be allowed to complete their work by taking into account all the issues. But I make a few comments on the proposal anyway.

The provision in question is s 38(3) of the SDA, which allows religious schools to make decisions in relation to students in accordance with their religious commitments, and for that not to amount to “sexual orientation” discrimination. Actually religious schools very rarely rely on this provision to expel or discipline students- but there are cases where a religious school may lay down a “code of conduct” or the like which may be seen by some as discriminatory on this basis.

If s 38(3) of the SDA is to be amended so that religious schools may no longer make decisions based on “sexual orientation”, then there still needs to be an explicit protection allowing such schools to require students to conduct themselves in accordance with the religious ethos of the school. It is generally accepted that schools are entitled to set up “reasonable standards of dress, appearance and behaviour for students”. A provision to this effect is already contained, for example, in the Victorian Equal Opportunity Act 2010, s 42. This provision also requires the views of the local school community to be considered. The equivalent in the context of the SDA would be allowing the school to operate in accordance with its religious ethos.

The last time this came up, in 2018, I suggested a possible redraft of s 38(3) which would achieve this outcome: https://lawandreligionaustralia.blog/…/ruddock-report…/. Perhaps it could be called s 38A, and I suggest this is what it might look like:

Possible s 38A Nothing in s 21 renders it unlawful for an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, in connection with the provision of education or training, to set and enforce standards of dress, appearance and behaviour for students, so long as this is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This would make it clear that decision would not be made on the basis of internal self-identification as “gay”, but on the basis of actual behaviour. A school set up to teach and model the principles of Christianity may want to say, for example, that they do not want to act on student’s internal feelings or temptations, but they cannot support public advocacy and activity which is contrary to the teachings of the Bible.

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Victorian Religious Exceptions Amendment Bill introduced

As previously foreshadowed (see my analysis of the proposals when first announced here) the Victorian government has introduced a Bill into the Parliament of that State seriously limiting the religious freedom of religious bodies and individual Victorian citizens. The Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) was introduced into the Legislative Assembly on October 27 and the second reading was moved on October 28. The Bill is a serious attack on the religious freedom of Victorians, especially to send their children to faith-based schools reflecting a religious world-view.

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Victorian proposals to further limit religious freedom rights

The Victorian government has recently announced proposals to further limit important protections for religious freedom currently applicable to religious persons, bodies and schools in that State. The recent proposals have been put forward as dealing with the problem of religious schools sacking gay teachers, or expelling gay students: see this comment from The Age: “Religious schools in Victoria to lose the right to sack LGBTQ staff” (Sept 16, 2021). However, the details of the proposals hinted at in the recent “Fact Sheet” provided by the government go much further than this. In short, if the government pursues these proposals, they will

  • remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school, by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone (and it seems from the way this is worded in the document, to mean that this will apply even to someone hired as a “religious studies” teacher!) This rule will also apply to any organisation “providing services funded by the Victorian Government”.
  • impose on all schools and “religious bodies” (however that is defined) a rule that any staffing decision based on religious beliefs must be justified by demonstrating that the “inherent requirements” of the position require such a criterion; the implication being that a secular Victorian tribunal or court will have to determine whether such requirements are applicable by examining the religious beliefs of the body or school for themselves;
  • remove completely the current right enjoyed by private Victorian citizens under s 84 of the Equal Opportunity Act 2010 not to be sued for discrimination where they can demonstrate that their action was “reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.

I described these as “further” limits on religious freedom because the Victorian Parliament has recently enacted provisions concerned “conversion practices” which will substantially interfere with the rights of religious persons to teach the doctrines of their faith. (These provisions are due to commence in February 2022). Victoria, despite being one of only a few jurisdictions in Australia to have enacted apparently broad protections for religious freedom in its Charter of Human Rights and Responsibilities Act 2006, s 14, continues to treat this right as one which can be downplayed and minimised.

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Fined for declining to make a “transgender cake”

A Colorado District Court has handed down a decision imposing a penalty on a cake-maker for declining to provide a cake designed to celebrate a “gender transition”, in Scardina v Masterpiece Cakeshop Inc (Denver District Ct, Co; 19CV32214, 15 June 2021). If the name of the shop sounds familiar, it will be to those interested in “law and religion” issues in recent years. Jack Phillips and his Masterpiece Cakes business were previously sued, all the way to the US Supreme Court, because he had declined to make a cake designed to celebrate a same-sex wedding (for my comment on the Supreme Court decision, see “Colorado Wedding Cake Baker wins before US Supreme Court” (June 5, 2018). Sadly it seems that Mr Phillips will need to appeal this latest decision as well.

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Collision of laws: the impact of Commonwealth law on the Victorian CSP law

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.

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Child Safety and Religious Freedom

The NSW Government is currently inviting comment on draft legislation entitled the Children’s Guardian Amendment (Child Safe Scheme) Bill 2020. The legislation has been drawn up in response to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse, and as well as governing “secular” agencies caring for children, it will mandate a new scheme for child protection covering “religious bodies” (see cl 8AA definition of “child safe organisation”, para (c)). The Bill is generally a good idea, but I want to suggest one amendment which will be needed for it to properly protect religious freedom.

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Victoria’s Conversion Practices Bill is as bad as they say it is

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.

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Further information about Victorian “Conversion Practices” Bill

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.

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