The claim that current laws permit discrimination must be balanced by the understanding that international human rights law also protects religion. Any inappropriate regulation of religious schools might therefore violate, rather than uphold, the right to equality
Controversy over whether religious liberty should be protected has been prominent in the news cycle since parts of the Ruddock report was leaked. The most controversial issue has been how religious schools are permitted under anti-discrimination legislation to adversely treat employees and students on grounds such as their sexuality, gender identity and religion.
There is understandable concern in the community about the welfare of adults and children at religious schools, especially regarding students who are same-sex attracted or experiencing gender dysphoria. The risk of harm to students is particularly significant considering the intensely social nature of schools, the parental role in school selection (even against a student’s wishes) and the long-term involvement of students who may be at the same school for over 40 hours a week for more than a decade of the formative years of their life. Considering these concerns there is clear community support for ensuring religious schools are appropriately regulated under anti-discrimination legislation. Importantly, this view is also held by many of those responsible for religious schools and universities.
Archbishop Coleridge, the President of the Australian Catholic Bishops Conference, for example, has declared that Catholic officials have ‘not sought concessions to discriminate against students or teachers based on their sexuality, gender identity or relationship status’. Similarly, Greg Craven, vice-chancellor of Australian Catholic University, rejected the ‘vile suggestion that faith-based schools are demanding the right to expel gay or transgender students’ stating that ‘No one supports it. Australian Christians as a bloc would oppose it, precisely as a matter of faith’.
Although there is strong support for laws ensuring that religious schools respect all employees and students the issue is more complex than may be immediately apparent. The claim that the current laws violate equality and permit discrimination needs to be balanced with the understanding that the right to equality under international human rights law also protects religion and any law that inappropriately regulates religious schools may therefore violate, rather than uphold, the right to equality.
Inappropriate regulations may also be criticised on other grounds, including failing to respect religious liberty, undermining parental rights, weakening multiculturalism and preventing children from being raised in an educational environment respectful of their religious and cultural heritage. This is not to claim that appropriate protections should not be provided to employees and students of religious schools. They clearly should. It is simply to recognise that the issue contains complexities and lawmakers should not rush to implement a legislative response without careful consideration of the relevant issues.
If Parliament does decide to make it unlawful for religious schools to exclude employees and students or to impose a detriment on the grounds of sexuality, transgender status and/or other grounds there will be many issues that will need to be addressed.
Will religious schools be restricted in how they teach their understanding of sexual ethics, gender identity and marriage? Should sex specific dress codes for students be allowed? What steps, if any, should a religious school be able to take against employees or students who openly criticise teachings of the religion on issues involving gender and sexuality? Should the law allow funding and other government and community support to be denied to religious schools that do not hold appropriate views on these issues?
In determining what changes should be made it is essential that the assessment of any proposed changes is evidence-based. Few would claim that the environment at either government or non-government schools in previous generations appropriately supported members of the LGBT community. The situation today is significantly different and any claim that religious schools are failing to appropriately care for all of their students and staff members should be supported by clear evidence.
It may well be that any studies undertaken reveal that many religious schools, including conservative Christian schools, are providing a caring and supportive environment for their students. Support for such a view is provided by the study Not So Straight by Fr Peter Norden that explores how Catholic schools can best care for same-sex attracted students.
The assessment of what additional legal regulations are needed must also include the substantial legal and non-legal protections that already exist for employees and students at religious schools. The Education Act 1990 (NSW), for example, holds that the requirements for the registration of a non-government school include that ‘a safe and supportive environment is provided for students’. Additional support is provided by vilification laws that typically protect attributes such as homosexuality, gender identity and religion. There are many other laws that can provide further protection including negligence, defamation and the intentional infliction of physical or psychiatric harm.
Further protection is provided by the many advocacy groups that support students and employees when they encounter difficulties with their school. The media plays a very influential role in regulating religious schools, with any adverse decision made by religious schools against staff members or students receiving national coverage. Social media is also a powerful force in ensuring religious schools operate respectfully, as any unjustly treated employee or student can easily bring their situation to the attention of the community.
Ensuring that religious schools are appropriately regulated under anti-discrimination legislation so that employees and students are protected is an important and complex topic that needs to be carefully addressed to ensure that the correct measures are adopted. The current commitment of many politicians to immediately legislate on the topic, and to do so for political gain, should be condemned.
Dr Greg Walsh is a Senior Lecturer at The University of Notre Dame Australia lecturing in a range of units including human rights law and is the author of the book ‘Religious Schools and Discrimination Law’