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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Belief that sex is immutable can be a protected belief

The view that biological sex is immutable and that a man cannot become a woman is, of course, controversial today. But in a very welcome decision, the UK Employment Appeal Tribunal in Forstater v CGD Europe [2021] UKEAT 0105_20_1006 (10 June 2021) has now overturned a previous single judge decision, and ruled that such a belief is “worthy of protection” as a “philosophical belief” under UK discrimination law. The decision, while not based on religious belief, will have important implications for protection of religious freedom in the UK, and hopefully in other parts of the world as well.

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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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The “ordinary meaning” of sex

In a controversial decision, the United States Supreme Court has held by 6-3, in Bostock v Clayton County, Georgia (No. 17–1618; June 15, 2020), that the prohibition of “sex discrimination” in the workplace in Title VII of the federal Civil Rights Act of 1964 means that an employer cannot discriminate on the basis of “sexual orientation” or “gender identity”. Both majority and minority focus strongly on the issues of how statutes should be interpreted. In my view the concerns expressed by the minority about the “literal” approach of the majority judgment are well-justified, as are the possible detrimental implications for religious freedom in the USA. I will also comment briefly on how similar issues would be resolved in Australia.

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Transgender discrimination law in Australia- uncertainties

It is not uncommon to find popular assertions , in relation to the legal treatment of transgender persons, that the law requires that a person who asserts they are of a different gender to their biological sex, be allowed to use bathrooms set aside for their chosen gender, or that they have a “right” to be addressed by the pronoun corresponding to that gender. In this post I want to point out that it seems quite arguable that the law in most of Australia does not have this effect. (I will comment briefly on recent changes in Tasmania which may have, though even there, the question is debatable.)

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Sperm donor recognised as father

This week the High Court of Australia handed down a fascinating decision on the question as to whether a sperm donor can be recognised as the legal parent of a child born through artificial insemination. In Masson v Parsons [2019] HCA 21 (19 June 2019) the court ruled that the answer was “Yes”. While the case doesn’t directly involve “law and religion” issues, the question of parental status in assisted reproduction methods is one of great interest in religious communities, so it seems worthwhile to set out the reasoning of the court. And as I will aim to show, there is an interesting possible sideline to the court’s decision which may impact other “status” questions which arise under Australian law, which may be significant for religious views on matters such as marriage and sexual identity.

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Religious Freedom amendments introduced in NSW

Today the Rev the Hon Fred Nile, for the Christian Democrat Party, introduced a Bill to add “religious beliefs or religious activities” into NSW legislation as a prohibited ground of discrimination. The proposed Anti-Discrimination Amendment (Religious Freedoms) Bill 2018 will add new Parts 3B and 5A into the Anti-Discrimination Act 1977 (NSW) (“ADA”), making it unlawful in various areas to discriminate on the grounds of religion, or to subject religious bodies to a detriment. The proposals will also make it unlawful to penalise someone for holding views on marriage as the union of a man or a woman, or for holding the view that there are only two genders.

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Australia adopts same sex marriage: law and religion implications

Legislation re-defining marriage to include same sex couples passed its final third reading stage in the Commonwealth House of Representatives this evening Australian time, December 7. The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will soon become law when it receives the Royal Assent. In this post I want to start exploring some immediate implications for religious freedom and other “law and religion” issues.

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