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.
A recent decision of the United Nations Human Rights Committee has ruled that the Australian government is in breach of its human rights obligations, by not providing for a person who has “transitioned” from male to female, to have their birth certificate amended. The reason that this request has been refused is that the person, “G”, was married to a woman, and NSW law does not allow the birth certificate of a married person to be amended. In my view this provision of NSW law is perfectly sensible (given that Australia does not recognise same sex marriage), and I have to say that I think the UNHRC has got this wrong.
It seems a good time of the year to take stock of the current status of some important Law and Religion issues discussed this year, and to flag some upcoming issues for the New Year.
A. Same Sex Marriage
1. Making the change in Australia?
As previously noted, the Government’s foreshadowed plebiscite on whether marriage should be redefined to extend the status to same-sex couples will probably not be going ahead, given the legislation was defeated in the Senate. Someone living under a rock for a year or so, reading that comment, might have supposed that this meant there was a “conservative” majority in the Upper House which was opposed to the change. Of course the opposite is ironically the case; the generally conservative Liberal/National Coalition were putting forward the plebiscite as a way of achieving the change (a change supported by the current Prime Minister and other Cabinet ministers), but the legislation was defeated by an informal coalition of “progressive” parties and independents who would also like to see the change made, but seem to fear that the majority of the Australian people might not agree with them. (To be fair, the stated reason for opposition was the impact of the plebiscite on same sex attracted persons. There is a lot of debate about whether such an impact was likely, given, for example, positive comments about the referendum on the same matter in Ireland.)
Their strategy now is to seek in 2017 to somehow put pressure on the Government to allow a “conscience” vote on the matter in the Parliament. Again, this is full of irony. The major opposition party, the ALP, has in fact formally ruled out a “conscience” vote on the issue for their own members after the next election, one of whom at least has been forced to resign over the matter. But they are in favour of a conscience vote for their political opponents, banking on the fact that enough of them disagree with their party’s current policy to provide a majority in both the lower and upper Houses of Parliament.
The major problem with this strategy is that the current Government were elected, and in particular it seems clear that the current Prime Minister was elected as leader by his party, on the basis that the only way the reform could be made was if it were supported at a plebiscite of the Australian public. Unless some individual MP’s could be persuaded to break with the party and cross the floor, it seems unlikely that the current Government will support a mere Parliamentary vote.
Where this leaves the issue at the next election is still unclear. Will the Government change its platform? Its majority at the moment is wafer-thin, and it might be thought that there are a number of sitting members who are both popular enough in their electorates to win even without party endorsement, and passionately opposed to changing the traditional meaning of marriage, to make any attempt to change policy on the issue very dangerous. Of course it seems that if the ALP wins office the change would be made- but again, the Australian electorate (consciously or not) tends to not give their Governments a Senate majority, and so there could be no guarantees that an ALP government could get same sex marriage legislation through the Senate. All in all, interesting times.
2. Protecting Religious Freedom if there is a change
Should same sex marriage be introduced, one of the major concerns of religious groups and individual believers is whether religious freedom in this area will be protected. I have summarised many of these issues in a paper delivered earlier this year (and you can even watch a video of the presentation should you now be over being “entertained” by Christmas fare!) In short, there are some protections for religious freedom provided in the draft amending legislation which was intended to be presented if the plebiscite had succeeded. But in my view the protections in the draft Bill did not go far enough.
In fact, for those who are interested in this area, the Senate before breaking up this year for Christmas appointed a Select Committee to look into the Bill: the “Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill“. It invites submissions on the Bill by the very tight deadline of 13 January 2017. I encourage folk to have a look and see if there are things they want to draw to the attention of the Committee. (I have made a submission already; the general matters raised were similar to those I mentioned in my previous blog post on the draft legislation.)
One of the areas where there will be continued debate on the issues is the ability of ordinary believers in the “wedding industry” to decline to offer services in support of same sex ceremonies. I mention the current status of a couple of these cases overseas below. While I feel I have said this many times before, since those who distort the motives of believers involved in this case continue to do so, it bears repeating: the people involved in these cases are not arguing for a general right to deny all services to same sex attracted persons! They are simply saying that, when they are asked to engage their creative skills in a specific way, in celebration of a same sex relationship which their religion tells them is contrary to God’s will, they cannot do so. That is an area which will continue to be contested.
3. Wedding Industry cases
On this blog I have previously mentioned a number of cases where believers have been sued and required to pay damages, or undergo “training”, because they have declined to provide services for a same sex ceremony. Three of those cases are still before the courts at a high level and further proceedings are likely in 2017.
(a) The Ashers “Gay Cake” case
I discussed the latest substantive court proceedings (in October) in this case, where Belfast bakers have been penalised for not providing a cake with a motto and picture in support of same sex marriage, previously. After the Northern Ireland Court of Appeal upheld an order for damages imposed on the bakers (and note that no actual wedding was involved, this cake was simply requested for a political event urging that the law be changed!), that court on 21 dec 2016 formally denied an application for leave to appeal to the UK Supreme Court. However, the Ashers still have a right to make their own application for leave to appeal, direct to the Supreme Court, and they have indicated that they will be doing so in the New Year.
My take is that the Supreme Court, if it grants leave to appeal, may well overturn the decisions of the Northern Irish courts. The many press articles, even from normally “progressive” outlets, decrying the decision illustrate that many people feel that this is a case where free speech is being attacked without the justification of it causing specific emotional or other harm to a couple planning to be married. The fact that the decision was even challenged by the Northern Ireland Attorney-General demonstrates this as well. Still, there is always some uncertainty in this area, so it will be very interesting to see the outcome.
(b) The “Hands On Originals” Gay T-shirt case
A decision from the US which was handed down some time ago concerns similar issues. In Hands on Originals, Inc v Lexington-Fayette Urban County Human Rights Commission (Fayette Circuit Court, Civil Branch, 3rd Div, Ky; Civil Action No 14-CI-04474; James D Ishmael Jr, J; 27 April 2015), a T-shirt printer was found to be entitled to decline to support a message of “Gay Pride” (see my previous comment in “Cakes, t-shirts and religious freedom- an update“, April 28, 2015). This was one of the few such cases in the US where the religious freedom of the service provider had been protected; again, like the Ashers case, it did not involve an actual same sex ceremony, so was more clearly a case of free speech being challenged with a failure to support a popular cause.
Despite the length of time since the original decision, an appeal against this decision was heard on Dec 13, 2016 before the Kentucky Court of Appeals- see here for the excellent resource centre on the case supplied by ADF, the attorneys acting for the small business. This local news report suggests that the appeal decision may be handed down within 90 days.
(c) The Masterpiece cake case
In Craig v Masterpiece Cakeshop, Inc., ___ P3d ___, ___, 2015 WL 4760453, *6, 2015 Colo App LEXIS 1217, *15-18  the Colorado Court of Appeals upheld the decision of a lower tribunal to impose a penalty on Jack Phillips, owner of Masterpiece Cakeshop, for declining to produce a cake for a same sex commitment ceremony. To quote the ADF summary:
That decision ordered Jack Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex celebrations. The decision also ordered Phillips to comply with Colorado’s Anti-Discrimination Act by re-educating his staff and filing quarterly “compliance” reports for two years.
After the Colorado Supreme Court by majority refused to accept an application for leave to appeal, a petition for a “writ of certiorari” (request for leave to appeal) was filed with the US Supreme Court on 22 July 2016. The petition has not yet been heard, and this may mean that it will need to be dealt with by the Supreme Court after the next appointment is made by the incoming Trump administration. The latest information from a key Supreme Court tracking blog indicates that the case might be discussed at a “conference” considering pending petitions on Jan 6, 2017, but it seems very unlikely that it will be disposed of before the new administration takes over. Who will be the 9th Justice appointed to replace Scalia J, of course, is unknown, but it seems likely that it will be a “conservative”, and hence there may be a majority on the Court to at least give the appeal a hearing.
B. Religious Freedom generally
Protection of religious freedom, of course, is a much broader issue than what may flow from recognition of same sex marriage. Here I just mention briefly some updates on previous matters, and another Parliamentary inquiry.
1. Updates on transgender rights issues
In my earlier blog, “Bathrooms and discrimination” (April 24, 2016) I mentioned that the State of North Carolina had generated controversy by passing legislation, generally called “HB2” (officially the Public Facilities Privacy & Security Act (“PFPSA”)), specifying that in multiple occupancy public bathrooms only those whose birth certificated indicated they were male, could use male bathrooms, and only those whose birth certificates indicated they were female, could use female bathrooms. This legislation was in response to an ordinance passed by the city council of Charlotte, the capital, which required all bathrooms to be available, apparently, to all genders. In particular it was seen as allowing those who “identify” as a gender opposite to their biological sex to use the bathroom set apart for that gender, regardless of whether they had undergone surgical or other treatments to allow their birth certificate to be changed. (While many may object to these laws, in particular these sort of laws raise long-term religious freedom issues for believers in religious traditions such as Christianity, which clearly states that male and female are exclusive categories and should not be confused.)
In recent days, after an election which saw a Democrat Governor take office in North Carolina, there were negotiations between the city council and the State legislature after which a deal seems to have been reached that the city would repeal the relevant changes to its ordinance, and the State would repeal HB2. However, recent press reports suggest that while the city has repealed its ordinance, the legislature in a special session leading up to Christmas could not agree to repeal the Act: see “HB2 Stays: North Carolina Lawmakers Decline to Repeal Controversial Anti-LGBTQ ‘Bathroom’ Bill” (Dec 21, 2016). Clearly the debates will continue- there seems to be some indication that the repeal of the city ordinance was conditional on the legislation being repealed by Dec 31, so the whole debate may be re-ignited in the New Year.
In that earlier blog post I also mentioned litigation, G G v Gloucester County School Board, in which an injunction had been granted to require a local school to allow a student born biologically female, who now identified as male, to use the boy’s bathroom (see this decision of the United States Court of Appeal for the Fourth Circuit, handed down on April 19, 2016). However, on August 3, 2016 the US Supreme Court issued a “stay” order halting the implementation of the lower court’s injunction while a petition for certiorari (application for leave to appeal) is being considered. This slightly unusual step suggests that at least four of the current 8 Justices consider the appeal to have merit. The current schedule for hearings means, as noted at the Supreme Court monitor “SCOTUSblog”, that the application for certiorari may not now be heard until March or April ( “increasing the chances that a ninth justice may have taken the bench by the time the case is argued.”) In addition, since the case revolves around an interpretation of a statute provided by an Obama administration official, the arrival of the new administration on January 20 may see that interpretation changed, and the matter may then need to be referred back to the lower courts to account for the change.
Clearly the question of transgender rights is going to continue to be a major issue in the coming year, in the US, the UK and in Australia. For those who are interested in some resources which outline the issues and present important scientific information challenging some of the common popular assumptions about this area, I recommend the following for further reading:
- for Australia, where the so-called “safe schools” program continues to generate controversy, an important paper by Professor Patrick Parkinson from Sydney Law School reviews the literature: see “The Controversy over the Safe Schools Program – Finding the Sensible Centre” (September 14, 2016). Sydney Law School Research Paper No. 16/83. Available at SSRN: https://ssrn.com/abstract=2839084 or http://dx.doi.org/10.2139/ssrn.2839084.
- from the UK, a recent paper from the Christian Institute helpfully outlines many of the issues: see “Transsexualism” (2016), with a link at the end to supporting literature;
- released earlier in the year, this lengthy study from the journal New Atlantis (Fall, 2016) “Sexuality and Gender: Findings from the Biological, Psychological and Social Sciences“, by Dr Lawrence S Meyer and Dr Paul R McHugh, is a goldmine of a literature review on the area. From the summary: “this report shows that some of the most frequently heard claims about sexuality and gender are not supported by scientific evidence. The report has a special focus on the higher rates of mental health problems among LGBT populations, and it questions the scientific basis of trends in the treatment of children who do not identify with their biological sex. More effort is called for to provide these people with the understanding, care, and support they need to lead healthy, flourishing lives.”
- and from Australia again, an important paper by Professor John Whitehall from Western Sydney University: “Gender Dysphoria and Surgical Abuse” Quadrant (Dec 2016).
2. Another important Parliamentary Inquiry
Finally, worth noting that the Federal Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade is conducting a summer inquiry, “Inquiry into the status of the human right to freedom of religion or belief“. The terms of reference are very broad:
The Committee shall examine the status of the freedom of religion or belief (as recognised in Article 18 of the International Covenant on Civil and Political Rights) around the world, including in Australia. The Committee shall have particular regard to:
- The enjoyment of freedom of religion or belief globally, the nature and extent of violations and abuses of this right and the causes of those violations or abuses;
- Action taken by governments, international organisations, national human rights institutions, and non-government organisations to protect the freedom of religion or belief, promote religious tolerance, and prevent violations or abuses of this right;
- The relationship between the freedom of religion or belief and other human rights, and the implications of constraints on the freedom of religion or belief for the enjoyment of other universal human rights;
- Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.
The inquiry should have regard to developments since the Committee last reported on Australia’s efforts to promote and protect freedom of religion or belief in November 2000.
The nature of the Committee, and aspects of the terms of reference, suggest that overseas developments are its main focus. However, it also includes Australia as part of its remit. These are important topics, and again there is a tight deadline for submissions to close, on Friday, 10 February 2017. I will be aiming to put in a submission, and I encourage others to do so as well.
Well, this “brief” review has already been too long, so I will finish there and wish all those who read all the best for the New Year, when it looks like there will continue to be lots of material on Law and Religion to talk about!
A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law.
The Victorian Government has introduced a Bill, the Births Deaths and Marriages Registration Amendment Bill 2016, to amend its law on birth certificates to allow changing the gender on the certificate to be made easier. (The Bill was approved by the Lower House on 15 Sept 2016 and is awaiting consideration by the Legislative Council.) There are many problems with the policy represented by this legislation (see a good summary from Murray Campbell, “Victorian Government and Birth Certificates” Oct 26, 2016)). But what I want to focus on here is the interaction of the new law with the law on marriage. In my view the law will create a host of legal uncertainties at best, and is quite likely to be unable to achieve its apparent aim of allowing Victorians born in one sex to live for all purposes as if they were of the other sex.
Australia is in the midst of a Federal election campaign at the moment (thankfully, one which will end on July 2, unlike the one being endured by our friends in the United States, which seems to stretch on interminably!) But law and religion has now emerged as one of the election issues.
This time the question is not about same-sex marriage (SSM), although the various parties’ views on that topic are well-known (at the moment, the Australian Labour Party (ALP) has promised to introduce SSM within 100 days if elected, and the Liberal-National Party Coalition, currently in power, has promised to put the matter to a plebiscite after the election if they are returned.) But the latest question has been raised by a minority, but increasingly influential, Greens Party, which has included as part of its election platform a promise to remove “religious exemptions to federal anti-discrimination law“.
At the moment the Opposition ALP (which is fairly closely aligned to the left-wing Greens on many points) has not made a similar promise, but has noted that it will
review the carve-outs in Australia’s anti-discrimination laws, with [Opposition Leader] Bill Shorten leaving open the door to removing further exemptions for religious institutions.
The official ALP electoral platform contains the following promise (in Chapter 9, on p 139):
196. Labor believes that no faith, no religion, no set of beliefs should ever be used as an instrument of division or exclusion, and condemning anyone, discriminating against anyone, vilifying anyone is a violation of the values we all share, a violation which can never be justified by anyone’s faith or belief. Accordingly, Labor will review national anti-discrimination laws to ensure that exemptions do not place Australians in a position where they cannot access essential social services.
In this post I want to briefly review what “exemptions” are being mentioned here, and argue that watering down or removing this provisions (these “balancing clauses”) would be unnecessary to achieve the ALP’s stated aims, and in general a bad idea.
Balancing Clauses in Discrimination Law
Since the current issue has arisen in a Federal election, I will mainly focus on Federal law (although the issues and their resolution are similar in most States and Territories.) In fact, the primary “exemptions” that the Greens and the ALP are referring to are those contained in one Act, the Sex Discrimination Act 1984 (Cth) (SDA). (Interestingly, there are few if any religious balancing clauses in the other Federal discrimination legislation, prohibiting discrimination on the basis of race, disability, and age. These have not been areas where mainstream religions have usually sought exemptions.)
First, a question of terminology. What their opponents tend to call “exemptions” to discrimination law are, in my opinion, best described another way. To explain this I would like to quote some extracts from a paper I presented at a conference in Oxford in 2015:
[R]eligious freedom is recognised in the International Covenant on Civil and Political Rights (art 18):
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his [or her] choice, and freedom, either individually or in community with others and in public or private, to manifest his [or her] religion or belief in worship, observance, practice and teaching.
While it is clear that the “internal dimension” of religious freedom is absolutely protected, it is equally clear that the “external dimension” of the freedom, that is, the freedom to manifest one’s religion and act on one’s religious beliefs, may be subject to limitations in certain circumstances. A fundamental feature of “rights” of any sort, of course, is that, where they are given to more than one person, there is the potential for conflict. Any “freedom” given to a person to do something, will usually involve a “duty” on another person’s part to allow them to do it, even if it interferes with some other freedom or right of that person. Whether it is appropriate for one person’s right to be protected over and above another person’s right or interest requires a consideration of how competing rights and interests are to be appropriately balanced. The need for limitations in certain circumstances on the right to externally manifest one’s religious belief and the need for freedom of religious freedom rights to be balanced with the rights and interests of others is reflected in the ICCPR (art 18(3)):
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The nature of any human rights system, then, is that it must allow the appropriate “balancing” of rights which may occasionally come into conflict. But there is under international law no “hierarchy” of the fundamental rights protected in the ICCPR, all are equal, including both the right to free exercise of religion, and the right not to be unlawfully discriminated against. So it is not helpful to speak of provisions designed to balance these rights as “exemptions” or “exceptions”. As I go on to say in the paper I mentioned above:
Rather than seeing these “defences” as concessions “wrung out” of a reluctant legislature by some powerful lobby group, as they are sometimes painted in the press, it seems to be a better analysis to see the limits drawn around discrimination laws as an integral part of a structure designed to reflect the relevant human rights as a whole.
Balancing provisions in the SDA
What, then, are the “balancing provisions” contained in the SDA? There is a good summary of these in the report of the Australian Law Reform Commission on “Traditional Rights and Freedoms”. In Chapter 5 the Commission sums up the relevant provisions in the SDA as follows:
5.80 Commonwealth anti-discrimination laws contain exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example, in the SDA, the exemptions include the following:
- s 23(3)(b), which allows discrimination in the provision of accommodation by religious bodies;
- s 37, which allows discrimination in the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’; and
- s 38, which allows discrimination by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.
These balancing clauses will operate to delimit the area of unlawful discrimination under the SDA, so that behaviour which falls within those provisions will not be unlawful.
The purpose of the various provisions is not spelled out in the legislation, but seems to be as follows:
- The s 23(3)(b) provision for accommodation recognises the fact that certain religious bodies have a tradition of running single-sex colleges and residential institutions. They do so partly because they have a conviction, based on their religious beliefs, that sex between men and women outside the bond of marriage is wrong, and hence they provide single-sex accommodation to reduce the temptations to engage in wrongful sexual conduct.
- (It is worth noting in passing that since amendments in 2013, s 23(3A) provides that the exemption of religious organisations in para 23(3)(b) “does not apply to accommodation provided by a religious body in connection with the provision, by the body, of Commonwealth-funded aged care”. Hence a religious aged care institution cannot choose to offer single sex residential accommodation, nor can they choose to decline to accept a couple who are living together but not married, or a same sex couple. It is fairly clear that these changes represented an attempt to undermine the general balancing clause provisions by focussing on a purported problem which, to be frank, does not seem to have actually been causing any issues. Still, this “exemption to balancing” provision is now there.)
- The s 37 provision has mainly been seen as allowing the Roman Catholic Church, and those branches of other churches who read the Bible’s teaching on the point in this way, to decline to appoint women as priests or pastors over congregations. It would also have allowed a religious organisation to decline to appoint to a position of spiritual leadership an unmarried person in a “de facto” relationship (an action otherwise forbidden as “marital status” discrimination), again on the basis of the Bible’s prohibition of sex outside marriage. Since amendment of the SDA in 2013 to add “sexual orientation” and “gender identity” as protected grounds, it will allow a church to decline to appoint to such a position a person in a same sex sexual relationship (based on the Biblical teaching that homosexual activity is sinful), or someone who is of one biological identity but “identifies” as of another gender. (For a recent overview of why many Christians regard transgender identification as theologically problematic, see this piece by Russell Moore from the Ethics & Religious Liberty Commission of the US Southern Baptist Convention.)
- (Note again that s 37(2) now qualifies this balancing clause in relation to “acts or practices” where the “act or practice is connected with the provision, by the body, of Commonwealth-funded aged care”. Since most of the examples given in the debate on this issue revolved around the provision of accommodation in aged care institutions, it is hard to know whether s 37(2) adds anything above s 23(3A).)
- The s 38 provision specifically applies to religiously based private schools, and would allow such schools to decline to engage teachers or staff (either as employees or contractors) where doing so would cause injury to injury to “the religious susceptibilities of adherents of that religion or creed.” Putting aside the somewhat patronising reference to “susceptibilities”, which one may assume is intended to refer to religiously based conscientious objection, this would seem to allow a Roman Catholic school to decline to hire (or to fire) a teacher who was in a de facto relationship, a same sex relationship, or was actively pursuing a gender transition. Under s 38(3) the school would also be allowed to decline to accept an application for enrolment from a student in one of these situations. It would also, presumably, be entitled to insist that students conduct themselves in accordance with Roman Catholic moral standards in behaviour at the school.
Are these provisions justified?
Some will immediately say that the examples provided above show why these provisions should not be allowed to operate. Refusing to employ, or sacking, a teacher because of their private moral choices sounds discriminatory. So does allowing a church to decline to ordain women, or sexually active same sex attracted persons, or transgender persons.
But it seems to me that the provisions are justified on the basis of the strong religious freedom rights recognised in international law mentioned above. If we are concerned about “human rights”, we cannot pick and choose only the ones that make us feel comfortable. Indeed, it is the human rights that have become unpopular and applicable to minorities, which will require all the more careful protection.
Religious persons seek to live their whole lives, not just their time in religious meetings, in service to their God. Those who disagree with those religious views are not required to be a part of the religious community. But for those who are, expression of their commitment to their beliefs will involve decisions about moral issues and the way that they wish to model their religious beliefs to each other and, for schools, to their children.
As Paul Kelly has commented in The Australian (May 18, 2016)
The exemption from anti-discrimination law for religious institutions and schools allows them to retain their religious character. It is a cornerstone for religious freedom in this country.
The fact is that Christian schools, and other religious schools, are aiming to model the life of a whole community with shared religious beliefs (and hence moral values). That is why the commitment of the Maths teacher, or the gardener, or the receptionist, may be just as important as that of the religious studies teacher.
Indeed, the strong moral stance of religious schools is sometimes seen as a reason for those schools to be preferred as educational choices, even by those who don’t share their religious commitments. If we believe in true choice and diversity, then we should be supporting different communities reflecting their values in the way that they provide such things as education, or other social services.
Implications for the political platforms
From what I have said above, I clearly do not support the draconian demands of the Greens to remove all balancing clauses reflecting religious belief from sex discrimination legislation. Religious organisations ought to be able to choose who they appoint as leaders, and who will teach at schools they set up to pass on their religious world view to those who attend. As others have pointed out, the Greens should not be required to appoint someone who is a climate change sceptic as a research assistant or indeed a front desk receptionist. In this area they need to accept that religious beliefs can be just as strongly held, and passionately followed, as political beliefs.
The only area of plausibility that is lent to these claims is where the Government may have chosen to provide some essential social service to members of the public through a religious group, which may then decide to not make that available to a member of the public on the basis of a religious belief. But while this would present many problems, it has to be said that it seems to be a classic “straw man” argument. No homeless person has even been turned away from a religiously run shelter because they are homosexual. No transgender person caught in a natural disaster has ever been refused assistance by the Salvation Army on the basis of their “gender identity”. While religious organisations will naturally seek to employ staff that share the ethos of the group, they are not in the business of denying help to needy people.
For this reason, it seems that the ALP policy is already satisfied, and no change to the law is needed to meet their concerns about “essential social services” being provided.
Religious groups, motivated precisely by their deep commitment to transcendent values, regularly engage in service to the vulnerable members of the community. They establish schools to pass on their deeply held values and moral commitments to the next generation. They run hostels and accommodation designed to reflect the moral values of their members and supporters.
If our society makes it impossible for believers to undertake these activities, by demanding that they conform to the majority views on gender equality and the new sexual identity politics which requires “affirming” sexual choices that their religion says is wrong, then we run the risk of driving believers out of the public square altogether. In doing so we will be denying the fundamental human right of religious freedom, and also losing the value added to our community by believers who serve the needy.
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:
- Being not allowed to use the male toilets is “less favourable” treatment;
- 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;
- B has a “different gender identity” to T;
- It is on the “ground of” T’s gender identity that this decision has been made;
- 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).
- 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.
- 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.
- 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.
- 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.
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)  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.