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Some upcoming Law & Religion events

A short post plugging some forthcoming Law & Religion events here in Australia which look to be excellent.

Last year I was honoured to help host the Freedom for Faith 2015 conference. This year there are two conferences sponsored by this excellent organisation, both of which look terrific. “Freedom for Faith”, to quote their website, is “a Christian legal think tank that exists to see religious freedom protected and promised in Australia.”

The first one-day conference, on Friday August 12 in Sydney, is aimed particularly at Christian leaders. Speakers include Dr Michael Ovey (Oak Hill College London), Professor Iain Benson (Notre Dame Law School), Rev Kanishka Raffel (Anglican Dean of Sydney), Dr Megan Best – ethicist, Dr Sam Chan – Evangelist City Bible Forum, Archbishop Julian Porteous – Catholic Archbishop of Hobart, Lyle Shelton – Australian Christian Lobby & more.

The second, on Friday September 23 in Melbourne, features a range of academics and other policy makers.  The theme for this one is ‘Religious freedom in an age of equality’. The keynote speaker is Father Frank Brennan. Other speakers include: Anne Robinson (Founding Partner ProLegis Sydney), Prof. Iain Benson (Notre Dame Law School Sydney), Mark Sneddon (Melbourne Bar), Prof. Patrick Parkinson (Sydney University Law School), Asssociate Prof. Patrick Quirk (Australian Catholic University Law School).

As I say, both look to be great events and would be good value for anyone interested in Law and Religion issues in Australia.

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Establishing Religion and Islamic schools in NSW

The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.

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Religious schools and discrimination in Victoria

Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.

The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed. 

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Sexual orthodoxy and admitting lawyers

The decision of the Ontario Court of Appeal in Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 (29 June 2016) is an interesting illustration of the strength of the current orthodoxy in society on sexual behaviour, and how those who dissent are increasingly being cast in the role of “heretics” and unfit for civilised society. (While this blog is mostly about Australian issues, those raised by this case are likely to be replicated here and elsewhere in the West, so I think it is worthy of note.) 

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Homosexuality and “hate speech”

Simply expressing opposition to homosexuality from a religious perspective, not accompanied by incitement to violence, should not be classified as unlawful “hate speech”.

The terrible events at the Pulse gay nightclub in Orlando, Florida, where 49 people were killed by a man claiming to act in the name of the so-called “Islamic State” group, have naturally generated much heated comment online and in the news media. As others have noted, this was almost a “perfect storm” of hot-button controversies in the world today: Islam, homosexuality and gun control being some of the main ones.

In this comment I want to narrow the focus to the issues surrounding speech, and to consider how in the light of these events the law ought to deal with public comments about homosexuality. One of the reasons for this is that it has been suggested that part of the background to these events were previous comments made by Farrokh Sekaleshfar, a senior Shi’ite Muslim scholar who had visited Orlando in March, to the effect that homosexuality was a moral offence which warranted the death penalty. (It should be noted that while Mr Sekaleshfar had indeed made these comments, the recording in question dated back to 2013 on a different occasion, and there seems no suggestion that he actually said anything on the topic in his Orlando visit.)

And oddly enough there was then a direct connection with Australia- Mr Sekaleshfar was at the time of the Orlando events giving lectures at an Islamic centre in Australia. The Sydney Morning Herald reported:

Mr Sekaleshfar said in a lecture in Michigan in 2013 that in an Islamic society, the death penalty should be carried out for homosexuals who engaged in sodomy.

There was then some suggestion that Mr Sekaleshfar’s visa would be revoked on account of his comments, a course that in the end proved unnecessary when he voluntarily returned to the UK. It should be noted that the report also mentions that:

Mr Sekaleshfar told Reuters on Monday he condemned the Orlando shooting as a “barbaric act of terror that was in no way justified”.

The question of Muslim views on homosexuality hit the headlines in Australia again shortly afterwards. The Prime Minister, Malcolm Turnbull, hosted an “iftar” dinner (a traditional event held at the end of a day of fasting in Ramadan) for a number of leaders of the Muslim community at Kirribilli House, the official Prime Ministerial residence in Sydney. As reported by The Australian (June 17, 2016):

Four days after 49 people were shot dead in a gay nightclub in Orlando by Islamic State supporter Omar Mateen, Sheik Shady Alsuleiman was among dozens of Muslim leaders invited to the first ever Iftar — the evening meal at which Muslims end their daily fast during the holy month of Ramadan — to be staged by an Australian prime minister.

Sheik Alsuleiman, who was elected president of the Australian National Imams Council last year, arrived at Mr Turnbull’s Iftar dinner alongside Grand Mufti Ibrahim Abu Mohammad.

“What’s the most common disease these days?” he said in a sermon uploaded in YouTube in 2013. “HIV, Aids, that’s so common and there’s no cure to it. And when did it exist? Just decades ago, and more diseases are coming.”

He said it was “homosexuality that’s spreading all these diseases”.

The article goes on to note that other Muslim leaders present at the meal said that homosexuality was a sin under Islam, “but it does not mean go kill them”.

In a more recent report in The Australian (June 18, 2016) other Muslim leaders re-affirmed that the death penalty was appropriate for homosexuality under Islam.

Imam Yusuf Peer, the chairman of the Council of Imams Queensland, who is a member of the national peak body, told The Weekend Australian yesterday that it was “not permissible” to be gay and Muslim.

“But we do not have a problem with the people themselves, just the act and ideology,” Imam Peer said. “But this is what the sharia law says and we have to follow that. There is no way around that. When we are talking about gays, we have to be confident (they are gay) and there must be a lot of ­investigating.”

When asked if sharia ­required death, Imam Peer said: “Yes.”

Imam Peer said because a “proper process” involving “committees” applied, it prevented the “random bashing and killing” of homosexuals: “Nobody can implement Islam­ic sharia on their own. There is a procedure, there is arbitration, there is a committee.”

Building on these events, the Opposition Leader Bill Shorten was reported in an online debate as using these comments as an example of “hate speech” likely to be encouraged by the plebiscite on same sex marriage promised by the Coalition Government to happen after the next election.

Opposition Leader Bill Shorten has linked the planned plebiscite on same-sex marriage to the Orlando massacre and the murder of British MP Jo Cox, suggesting the campaign could “give haters the chance to come out from under the rock”.

In the midst of this hyperbole, it might be worth reminding ourselves of some facts about homosexuality, religious perspectives, and the idea of “hate speech”. I’d like to offer five propositions, and comment on them briefly:

1. Homosexual behaviour is seen as immoral by some religions

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

4. There is “hate speech” which ought to be made illegal

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

1. Homosexual behaviour is seen as immoral by some religions

Mainstream religions around the world have long regarded same sex intercourse as contrary to their religious beliefs. In Islam, the primary source, the Qur’an, Sura 7:81 explicitly condemns homosexual behaviour. This article and this one link to other more detailed comment in the Hadith and other sources which make this quite clear.

In Christianity the prohibition on homosexuality is found in the Old Testament in Leviticus 20:13 (and 18:22), and is repeated in the New Testament in Romans 1:26-27, 1 Corinthians 6:9, and 1 Timothy 1:10. In the Lev 20 verse, the death penalty is laid down for those who engage in same sex relations.

2. Believing behaviour is immoral does not always mean “hate” for those who engage in the behaviour

However, modern believers in both Christianity and Islam do not intend to say that they “hate” someone when they report that the person’s behaviour is immoral. Indeed, as far as Christianity is concerned, the fact that someone has rebelled against God and is hence a “sinner”, is a fact that is said to be true of all human beings (see e.g. Romans 6:23). Christians are urged to do good to all, including sinners (since all fall into that category!) And the best known verse in the Bible, John 3:16, reports that God “so loved the world” that he sent his Son Jesus to die for its salvation.

So a judgement, on the basis of revealed truth, that behaviour is wrong does not on its own imply “hatred” for someone else.

3. Islam does find it harder to distinguish the immoral from the illegal than does Christianity

However, it does have to be said that Islam as a religion finds it more problematic to speak of behaviour which is immoral, and not at the same time illegal.

Christianity has a long history of recognising that wrongful behaviour may not need to be punished as such by the State. Indeed, there is a crucial truth about the relationship between Christianity and the laws of the Old Testament that must not be forgotten in these debates.

The simple fact that there is an “Old” Testament (comprised of the Hebrew Bible) and a “New” Testament signals something very important about Christianity. Without exploring the complexities of the debates here, broadly speaking Christians believe that the arrival of Jesus Christ as the promised Messiah of Israel saw a radical change in the way that God related to humanity. In the Old Testament the people of Israel were designed to live both as a political entity and a religious entity, a body politic with laws and punishments and authority structures mostly centred on the area of land known as Canaan or Palestine. With the arrival of Jesus, however, it became clear that the laws which had governed the political State of Israel were no longer applicable to the new people of God, who were now defined as those who had put their faith in Jesus as Lord.

This apparently arcane religious debate has massive ramifications for the way that the Old Testament laws are treated today by Christians. While there have been debates and alternative views taken over the centuries, the mainstream Christian view has been that the laws of a modern political entity do not need to replicate the laws applicable to Old Testament Israel. Jesus, for example, in a startling passage of teaching, told his disciples that all foods were clean (see Mark 7:19), overturning all the OT teaching on clean and unclean foods. He told his disciples that there were certain matters that were the province of “Caesar” (the secular government) and where their rules should be respected- see Matthew 22:21. The apostle Paul taught that Christians were not “under the law” (Galatians 5:18).

Hence no mainstream modern Christians believe that the death penalty ought to be applied by the State for all sinful behaviour prohibited in the Bible, even if that penalty had been imposed by the Old Testament. All Christians believe that some OT ceremonial laws are not applicable at all today; most believe that the moral principles spelled out in OT laws are still applicable but the legal penalties are not. This is not simply a “let’s pick the ones we like and ignore the others” policy, it is a result of detailed unpacking over many centuries of the clear teaching of the New Testament. (See also this recent comment refuting the suggestion that Paul’s letter to the Romans calls for the civil death penalty for homosexuals.) So while the famous episode in the “West Wing” where President Bartlett attacks a “conservative” for opposing homosexual behaviour but not executing children for disobedience may have made amusing TV, it bears no connection to the reality of arguments made on this point by religious conservatives.

Islam, however, tends to have a strong mainstream strand which sees it as a religious duty to work towards the application of Islamic religious (sharia) law to the whole community. Christian philosopher Richard Shumack, in an important work discussing fundamental differences between Christianity and Islam, The Wisdom of Islam and the Foolishness of Christianity (2014) quotes an influential Muslim thinker, Abul Ala Maududi, who says:

The chief characteristic of Islam is that it makes no distinction between the spiritual and the secular in life. Its aim is to shape both individual lives as well as society as a whole in ways that will ensure that the Kingdom of Allah may really be established on earth and that peace, contentment and well-being may fill the world. (from Shumack, p 197, quoting Maududi, “The Islamic Concept of Life.”)

This explains why serious Muslim speakers will continue to argue that the death penalty is an appropriate penalty for homosexuality in certain circumstances- in particular, in a society which has committed itself to full implementation of sharia law. In an ABC TV interview with Farrokh Sekaleshfar before leaving Australia, he explains the remarks for which he has been attacked as being made in an academic discussion of this sort, about a theoretical society where sharia law is implemented, and in relation to a “public” act of homosexual sex.

However, even in the case of Islam is just not true to say that mainstream Islamic teaching requires the death of homosexuals in a Western country. The view that homosexuality is wrong, even the view that in an Islamic society it ought to be punished, may be, and indeed is, offensive to many. But should someone who holds such a view be punished for saying so?

4. There is “hate speech” which ought to be made illegal

There has been a long debate about the validity of laws which forbid so-called “hate speech”. But before we discuss this issue it seems a good idea to define this term. What is it?

Perhaps in popular terms it means “speech which is motivated by the speaker’s hate”. But this is not the way that the term is usually used in legal contexts. The appropriate definition of “hate speech” has to do with its effect on the hearer, not the subjective motivation of the speaker. “Hate speech”, in broad terms, means speech that incites the listeners to “hate” a person or group of people who are the topic of the speech.

One example can be seen in the NSW Anti-Discrimination Act 1977, s 49ZT, which makes it unlawful to “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons” on the grounds of homosexuality. There are various defences that apply to this provision in the interests of free speech. Under s 49ZTA, however, where this incitement is accompanied by a threat of physical violence, or by incitement of others to such violence, then it is a criminal offence and those defences do not apply. These seem to be appropriate laws.

In a previous post discussing the related (though not identical) issues of “religious vilification laws”, I commented as follows:

I have written a longish academic paper where I discuss issues about religious “hate speech”, and there I conclude that, while the law should neither penalise the mere causing of “offence”, nor the expression of opposition to ideas or beliefs, it is sensible for the law to penalise the incitement of hatred against people on the basis of their religion. I cite Jeremy Waldron, who in his excellent book The Harm in Hate Speech (Cambridge, Mass; Harvard UP, 2012)  makes a careful but impassioned case for the desirability of  such “hate speech” laws. Waldron correctly points out that real harm can be experienced by those who are part of a minority group which is confronted on a regular basis by written and visual reminders that some would exclude them from civil society

So, I think there is a legitimate place for laws prohibiting the incitement of violence against same sex attracted persons.

5. But simply conveying views about immorality alone should not amount to illegal “hate speech”

But- not all comments conveying disapproval of homosexual behaviour fall into this category. I have posted before about the unwise nature of laws that prohibit mere “offence”, and supported a proposal to make it clear that open debate on the merits of same sex marriage should never of itself be grounds for legal complaints about “hate speech”. (See “Protecting free speech in the Same Sex Marriage Plebiscite debate” and a follow-up post here.)

In short, the value of free speech as both a fundamental human right and a tool for making sure all views are heard in the search for truth, means that we ought not to use the law to shut down the views of others who are “causing offence,” if that is all they are doing.

Of course, as noted above, I support making unlawful (as they already are) calls for direct violence against same sex attracted persons. But, to draw a line that is foreshadowed above, I do not think such a call is heard when a Muslim scholar suggests what law should be applied in a society governed by sharia law, while acknowledging that Australia is currently not such a society.

Of course, as a Christian I regard such a prospect (an Australia governed by sharia law) as bad, and will argue whenever I have the opportunity to do so that such should not happen. As a Christian I will argue with Muslim scholars that their views on this issue are wrong. But I do not think that expression of these views (outside the context of a call for direct violent action) should be shut down by the legal system. For one thing, I want Australians to be fully aware that Muslims believe this, when considering whether or not to adopt Islam as a religion. I do not want these views hidden from view, but rather to be out in the open where they can be critiqued and challenged.

If there is to be an ongoing and fruitful dialogue with genuine representatives of the Muslim community by leaders in government, it would be unhelpful to draw lines too sharply as to who will, and who will not, be consulted. While the views noted above as being held by the Muslim representatives at the iftar dinner will be deeply offensive to many, they do not represent calls for active violence against same sex attracted persons. Those views may be challenged from many directions, from a shared commitment to diversity and tolerance in a liberal society, to a critique of Islam from other religious perspectives. But open discussion of such views needs to take place in a context where the law allows free speech which does not directly incite violence.

 

 

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Religious Instruction in schools and “soliciting”

Press reports today (e.g.”Qld govt to review religious education“, Courier-Mail, 7 June 2016) indicate that a school Principal in Queensland has written to parents at his school indicating that he is cancelling the usual Religious Instruction (RI) classes, on the basis that he has discovered the lessons involve “proselytising” (a term which he says refers to “soliciting a student… to change their religious affiliation”). The Queensland Government in response to the press reports has indicated that it will be reviewing materials used to ensure they comply with relevant rules.

Does this mean a radical change has recently taken place in a program which has been operating for many years allowing parents to send their children to RI (elsewhere sometimes called “Scripture” or “Special Religious Education”) classes for a short period each week? Actually, no. It seems that the Principal has misread the relevant provisions, and the Queensland Government really doesn’t need to react to the misleading interpretation.

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“Exemptions” in discrimination laws applying to churches

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.)

Terminology

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.

Conclusion

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.

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The Bathurst Diocese decision and legal personality of churches

Today at the Law and Religion Scholars Network (LARSN) Annual Conference (5 & 6 May, 2016) at the Cardiff University School of Law and Politics, Cardiff, Wales I presented a paper discussing a recent Australian case on the “legal personality” of churches and how they are held accountable for debts. The paper, “The Bathurst Diocese decision and its implications for the civil liability in contract and tort of church institutions”, can be downloaded here. Those who are interested can also see the Powerpoint presentation that was meant to go along with the paper here: Bathurst Diocese case presentation.

The abstract is as follows:

In the NSW Supreme Court decision of Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856 (10 Dec 2015) (the Bathurst Diocese case), a single judge of the Court held that a large amount of money which had been lent to institutions in the Anglican Diocese of Bathurst, and guaranteed by a “Letter of Comfort” issued by the then Bishop of the Diocese, had to be repaid by the Bishop-in-Council, including if necessary by that body “promoting an ordinance to levy the necessary funds from the parishes”. The lengthy judgment contains a number of interesting comments on the legal personality of church entities and may have long-term implications for unincorporated, mainstream denominations and their contractual and tortious liability to meet orders for payment of damages. The paper discusses the decision and some of those implications.

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Bathrooms and discrimination

The use of public bathrooms has become a topic of fierce debate in recent days, in connection with the rights of transgender persons. I want to mention a few of the issues raised in the United States before discussing the situation in Australia. These matters connect with “law and religion” because, as I noted in my recent post on Transgender Issues, many committed to a religious world view will see it as not possible for a person to change the sexual identity they have been given at birth, and will have conscience problems in recognising a gender identity change.

Issues in the US

1. North Carolina

One of the most high profile debates raising these issues in the United States is around the enactment of legislation in the State of North Carolina usually referred to as “HB2” (“House Bill 2” of 2016, presumably), although its formal short title is the Public Facilities Privacy & Security Act (“PFPSA”). The enactment of this legislation has led to high-profile protests from big businesses saying that they will stop doing business in the State, to entertainers cancelling concerts and plays.

The background to the legislation is summed up helpfully in this Public Discourse piece, “North Carolina’s Bathroom Bill and the Constitution” (April 13, 2016):

The controversy began in Charlotte where the city council repealed an existing ordinance that specifically excepted restrooms, showers, and similar facilities from the prohibition on sex discrimination. At the same time, the city council added sexual orientation and gender identity (SOGI) as protected classes under the city’s public accommodations ordinance. Repeal of the restroom exception combined with the new SOGI protections made clear that Charlotte businesses and other places open to the public could no longer separate men and women in such facilities on the basis of sex or gender identity.

These two changes, then, were a radical departure from the previous law, that allowed those who administer bathrooms and changing facilities to exclude males from female facilities, and vice versa. In response the PFPSA restored the longstanding situation that bathrooms would be reserved for those who were biologically of the relevant gender. The legislation, applying to schools and to public facilities, spells this principle out in the amended GS 115C-521.2(b):

Local boards of education shall require every multiple occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex.

A later provision (new s 143-760(b) makes identical provision for “public agencies”. “Biological sex” is defined as

The physical condition of being male or female, which is stated on a person’s birth certificate. (s 115C-521.2(a)(1), s 143-760(a)(1))

This definition is important, because it recognises that where a person’s birth certificate indicates that they are of a particular sex, that will be the sex recognised by the law. Like many other jurisdictions, North Carolina allows a “post-operative” transgender person to have their birth certificate amended.

The restriction imposed by this law, then, only applies to those who may feel or believe they are of a gender other than that which corresponds to their biological reality, but have not yet gone through the complex processes which require a change of their outward genital and other appearance and general legal status.

It should also be noted that the legislation specifically says that it does not prevent schools or public agencies from setting up “single occupancy” bathrooms which may be designated for use by either sex. It is only “multiple occupancy” facilities which are required to be limited to access by persons of the same biological sex.

There are other aspects to the PFPSA which go beyond the issue of bathrooms. In response to the Charlotte council’s enactment of discrimination laws covering “sexual orientation and gender identity”, the legislature makes it clear that such laws should be uniform over the whole State, and limits the grounds on which discrimination laws can be enacted to “race, religion, colour, national origin, age, biological sex or handicap” (see new s 143-422.2(a).) These grounds are said to be prohibited grounds of discrimination for the purposes of employment or access to “public accommodation”. Unlike Australia, the various jurisdictions of the United States do not have a general prohibition of discrimination on the grounds of sexual orientation or gender identity/transgender status. While debate about whether there should be such general laws continues in the US, it seems worth noting that North Carolina did not have such laws (except in local areas such as Charlotte where councils had acted under local powers). So the action of the State legislature here was aimed at achieving a uniformity of approach across the State.

Still, I do not propose to defend or discuss this aspect of the PFPSA. What I want to note is that the law concerning use of bathrooms represents simply a consensus that has been present across most Western societies since the introduction of shared indoor bathroom facilities: that men and women are different, and where possible reasons of modesty and respect for others are best served by separating the sexes into different public bathrooms and changing areas. The laws that this move over-ruled proposed to allow open access to bathrooms to persons whose outward physical characteristics were the opposite to those who usually used the bathroom.

Indeed, recognition that modesty may call for differential treatment in “discrimination” laws is still embedded in Australian sex discrimination legislation. Under the Sex Discrimination Act 1984, there is a general principle that men and women should have access to public facilities (meeting rooms, etc) on an equal basis. But s 30 of the Act created some exceptions to these rules, and among those exceptions are the following:

Certain discrimination on ground of sex not unlawful

            30 (1)  Nothing in paragraph 14(1)(a) or (b), 15(1)(a) or (b) or 16(b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with a position as an employee, commission agent or contract worker, being a position in relation to which it is a genuine occupational qualification to be a person of a different sex from the sex of the other person.

             (2)  Without limiting the generality of subsection (1), it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex (in this subsection referred to as the relevant sex ) if:…

                  (c)  the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex;

                     (d)  the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex;

                     (e)  the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex;…

                  (g)  the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress

It is clearly recognised that in relation to “sex discrimination” (that is, differentiating between men and women), it may be a “genuine occupational qualification” to be of one sex or the other because access to bathrooms or changing areas is required. There is a genuine difference between men and women, and that difference manifests itself in a desire for modesty and not exposing one’s body to members of the opposite sex.

This would have all been reasonably straightforward and the subject of general agreement until very recently. However, there are now cases emerging which suggest that drawing the perfectly rational distinction between the bodies of men and the bodies of women is somehow “discriminatory”. The next case to be mentioned is such a case.

2. G G v Gloucester County School Board

In this decision of the United States Court of Appeal for the Fourth Circuit, handed down on April 19, 2016, a transgender boy, GG, born female, sought an injunction to require the local School Board to allow him to use the male rest rooms. GG dressed as a boy and had started “transitioning” to male, but had not had “sex reassignment surgery” (see p 7 of the transcript). Having been initially allowed to use a rest room in the school’s clinic area, he then started using the boy’s rest room, until the Board, following complaints from students and parents, ruled that students should only use the rest rooms corresponding with their biological sex. They did, however, provide three “unisex” stalls that could be used by GG or any other student of either sex. But GG complained that he felt “stigmatised” by being expected to use these separate stalls.

The legal basis for the injunction was said to be Title IX of the Federal Education Amendments Act of 1972 (there was a claim also filed under the “Equal Protection Clause” of the Constitution, but the court did not reach that issue.) Title IX provides relevantly that:

[n]o person… shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

The question was: was exclusion of a transgender person from a male bathroom, on the basis that he was biologically female, differential treatment “on the basis of sex”? The Act itself allowed separate living facilities for “the different sexes” (20 USC 1686) and regulations made under the Act permitted “separate toilet, locker room, and shower facilities on the basis of sex” (34 CFR 106.33). Since the School was allowing all persons who were biologically male to use the boy’s rest rooms, it seems that it was not discriminating “on the basis of sex”.

The majority of the Court (Floyd CJ and Davis SCJ) disagreed. Their primary reason for doing so was that the Federal Department of Education had provided its own interpretation of the law, and said in a letter of Jan 7, 2015, that:

“When a school elects to separate or treat students differently on the basis of sex… a school generally must treat transgender students consistent with their gender identity”.

To an Australian lawyer this part of the decision is particularly hard to accept. In our legal system the Department administering a law has no preferred standing as an interpreter of that law. It is the job of a court to interpret what the law says in accordance with well-established canons of statutory interpretation. But in the US the decision of the US Supreme Court in Auer v Robbins, 519 US 452 (1997), establishes that courts should usually “defer” to the interpretation of legislation provided by the agency responsible for its implementation, “unless the interpretation is plainly erroneous or inconsistent with the regulation or statute”.

So there is something of a presumption in the US that the bureaucracy administering a scheme knows best how to interpret the legislation setting up the scheme. But of course this still leaves some room for a court to rule that the Department has it wrong. Here the majority of the court upheld the Department’s interpretation, ruling that the law was “ambiguous” as to how the sex of students who claimed to be transgender should be treated- see p 20. So they deferred to the Department’s interpretation as a “reasonable” reading of the law- see p 21.

I have to say I find the dissenting judgment of Niemeyer CJ much more convincing. His Honour concludes that the Act and the Regulations use the word “sex” to refer to biological sex when allowing rules to discriminate between bathrooms and locker rooms on the basis of sex. There is no ambiguity which requires resolution by the Department. He also notes that GG’s argument, if accepted, would not only affect rest-rooms (toilets) but would have to be extended to other facilities the law allows to be sex-segregated, including living facilities, locker rooms and shower facilities- at p 56.

In the end, as Niemeyer CJ notes, the courts have in the past recognised “privacy rights” which arise in situations of nudity or partial nudity, and the policy supported by the Department would undermine the rights of students not to be exposed to the gaze of students of a different biological sex, or expose themselves to such persons (see the cases cited at pp 57-59).

There seems little doubt that the decision will be appealed, as it represents the first time a court (as opposed to an administrative body) has tried to mandate that students asserting they are transgender must be allowed to use bathrooms normally set aside on the basis of biological sex. It is particularly disturbing to see the majority’s use of “scare quotes” in the following passage near the beginning of their decision, at p 6:

GG’s birth-assigned sex, or so-called “biological sex”, is female, but GG’s gender identity is male.

The language really needs to be challenged. No person “assigned” GG a sex identity at birth; the very cells of GG’s body proclaimed what this was, presumably along with GG’s genitalia. And to refer to “so-called” biological sex seems like the worst sort of triumph of ideology over scientifically measurable reality.

The Australian situation

So far there seem to have been no court decisions on this issue in Australia. So the scenario sketched out here is hypothetical. But it seems to be worth considering whether a claim of unlawful discrimination could be made by a school student who claimed, without surgical intervention, to be of a “gender identity” opposite to that of their biological identity, but who was not allowed to use the bathroom corresponding to their assumed gender identity.

At the Commonwealth level, s 5B of the Sex Discrimination Act 1984 (“SDA”) prohibits discrimination on the basis of “gender identity”:

Discrimination on the ground of gender identity

             (1)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person’s gender identity if, by reason of:

                     (a)  the aggrieved person’s gender identity; or

                     (b)  a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

                     (c)  a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

“Gender identity” is defined in s 4(1) of the Act as

the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

One of the areas where gender identity discrimination is unlawful is access to facilities: see s 22 (extracted below on the relevant points).

Goods, services and facilities

             (1)  It is unlawful for a person who.. makes facilities available, to discriminate against another person on the ground of the other person’s … gender identity:

                     (a)  by refusing… to make those facilities available to the other person;

                     (b)  in the terms or conditions on which the first-mentioned person… makes those facilities available to the other person; or

                     (c)  in the manner in which the first-mentioned person… makes those facilities available to the other person.

If School S denied transgender student T, who identified as male, access to male toilets, presumably the argument would be made along the following lines:

  1. Being not allowed to use the male toilets is “less favourable” treatment;
  2. In the circumstances (which are said not to be “materially” different) B, a biological male who identifies as male, would be allowed to use the male toilets;
  3. B has a “different gender identity” to T;
  4. It is on the “ground of” T’s gender identity that this decision has been made;
  5. This under s 22 would be a detail of “facilities.”

Interestingly, however, almost every one of the steps in this argument seem open to challenge (apart from step 5, which seems applicable).

  1. Is it really “less favourable” treatment to not be allowed to use the male toilets? In general terms where toilets of an equivalent standard are supplied, it might not be. But presumably it would be argued that the way to describe the treatment is “being allowed to use a bathroom that correspond to one’s apparent sex”, and the benefit being denied here is represented by the probability of being made fun of by other students for seeming to use the wrong bathroom.
  2. An important issue here is whether or not the circumstances are “materially different” when considering the question of discrimination. S may argue that there is a key material difference here: the physical genitalia and other sexual identity markers of T are not those of B, and these are “material” to the question of access to a shared bathroom.
  3. Is it indeed the case that B has a different “gender identity” to T? After all, both of them seem to present as male. However, the argument may be made that a “gender related characteristic” of T is the lack of male genitalia.
  4. Has the decision to exclude been made on the basis of T’s gender identity? It could be argued that it has been made on the basis of T’s biological sex, not T’s male gender identity. Here is difficult to know what to make of the phrase at the end of the definition of “gender identity”: “with or without regard to the person’s designated sex at birth”. Is one allowed to have regard to T’s biological sex (the apparent intended meaning of the inaccurate word “designated”)? Or not?

It seems there will be much work needed to sort out these complexities. It may not be irrelevant, however, that as noted above s 30 of the SDA allows recognition of the general public policy which allows segregated bathrooms on the basis of sex. Perhaps the interpretation of the transgender discrimination provisions in s 5B ought to take this into account. Of course it ought to be wrong for a transgender person to be denied a job in the general marketplace, or access to public facilities like a shopping centre or a university, on the basis of that characteristic. That is because on the whole the question of whether a person believes that their gender identity is not the same as their biological identity is irrelevant to those situations. But it seems to be highly relevant, where bathrooms and change rooms are involved, what a person’s biological identity is. And so arguably s 5B ought not to be satisfied in these cases.

If, contrary to the above view, there is a prima facie case for breach of s 5B, would there be any applicable defences? The defences under s 30 noted above apply only to the question of  discrimination on the basis of “sex”, not “gender identity”. However, there is a broader defence provision which may be applicable: s 32.

Services for members of one sex

                   Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.

S may well argue that the nature of the “service” of providing a bathroom is such that they must be segregated on biological sex lines. The proposition that “men’s toilets” are only available to men would not seem to be very controversial. However, this argument may possibly not succeed- “services” are not quite the same as “facilities”, and there is no specific exemption of this sort for “facilities” as such.

There is also an exemption in relation to matters dealt with by other legislation, under s 40:

 (2B)  Nothing in Division 1 or 2, as applying by reference to section 5A, 5B or 5C, affects anything done by a person in direct compliance with a law of the Commonwealth, or of a State or Territory, that is prescribed by the regulations for the purpose of this subsection.

I am, to be frank, not sure whether access to male and female bathrooms is governed by laws or simply has been regarded as a matter of custom. If, however, there is a law that deals with the matter, then s 5B may not over-ride it.

This exemption only applies to “prescribed” laws. At the moment such provision is made, for State and Territory laws, by reg 5 of the Sex Discrimination Regulations 1984:

Exemption for things done in direct compliance with prescribed laws

             (1)  For subsection 40(2B) of the Act, all laws of the States and the Territories, as in force on 1 August 2013, are prescribed…

             (2)  This regulation ceases to have effect at the end of 31 July 2016 as if it had been repealed by another regulation.

If a State law currently over-rides s 5B, then it will cease to do so on 31 July 2016. After that point the debates noted above over the extent and meaning of s 5B will have to be resolved.

Conclusion

The question whether a person who identifies as transgender, but has not yet made a “surgical” transition, ought to be allowed to use bathrooms of their preferred gender, is under debate around the Western world. While there are general laws prohibiting discrimination which may provide an answer, they are not always clear. Arguably these are the sort of issues where Parliaments ought to provide clear guidance, rather than leaving it up to the courts to have to wrestle with legislation that may have not been designed for this purpose.

Politically and in the realms of public debate, it ought to be more clearly recognised than it is, that opposition to changes allowing “bathroom access” in the preferred gender is not simply based on irrational hatred or “transphobia”. There are genuinely difficult issues to be resolved. Who gets to decide whether someone has sufficiently indicated an intention to live as the opposite sex to be so regarded for bathroom purposes? It would seem to be ludicrous to accept this on the mere unsupported word of a person, with no outward or historical evidence that this is indeed a long term desire rather than a passing fantasy. There may be good reasons to distinguish between different types of rooms, to treat toilets with separate stalls differently to change rooms or shower rooms. The rights to privacy of persons using the bathrooms corresponding to their biological sex cannot simply be ignored by allegation of a new “right to feel comfortable about gender identity”.

In this connection it is interesting to note the decision of the Victorian Civil and Administrative Tribunal in Hanover Welfare Services Ltd (Anti Discrimination Exemption) [2007] VCAT 640 (20 April 2007). There a women’s shelter received a general exemption under the relevant Victorian legislation allowing them not to accept male-to-female transgender persons as “women” for the purposes of providing shelter. DP McKenzie, in issuing the exemption, noted:

9 The incident which led to this exemption application was an incident where a male who identified as a male-female transsexual was accommodated in a women’s only accommodation service. The person behaved inappropriately and walked naked within the accommodation facility displaying male genitalia. The women accommodated in the facility felt great trauma and distress and because of this, resulting from their past experiences and fear.

(See, for a critique of this decision, this article.)

Finally, the debate on these questions cannot avoid raising serious issues as to whether supporting a person’s desire to appear as a member of the opposite sex is always a wise idea, especially when the person is a minor, whose feelings and desires may change rapidly during adolescence. All these matters are the subject of serious debate which ought to be conducted in a respectful way, not demonising or insulting either side.

neilfoster

Transgender issues under Australian Law- an overview

The question of legal and social recognition of the rights of transgender persons is becoming a very hot topic of discussion. The recent debate in Australia on the content of the material provided for schools by the “Safe Schools Coalition” is one example. The question whether persons who believe they are of a different gender to their biological sex, should be able to use public bathrooms corresponding to their gender preference, is also fiercely debated. A law on the topic introduced recently in North Carolina in the United States has led to outrage from a number of quarters, and the announcement of “boycotts” and withdrawal of business by large firms and entertainers.

There are many issues in this area which intersect with religious freedom questions, especially as the majority view within Christian and other “Abrahamic” faiths seems to be that a person’s gender should usually correspond with their biological sex, except in the very rare cases of true “intersex” conditions where biological markers point in different directions.

This post cannot deal with all the current issues. But I thought as a preliminary exercise it would be helpful to briefly review the current Australian law around the topic, to set the scene for future discussions. I will also offer a few comments on recent proposals for change to the criteria adopted for changing a person’s legal gender identity.

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