QED

A Bill That Was Neither Arthur Nor Martha

Sexual politics bedevil Scott Morrison. And I don’t mean, for present purposes, the cacophony of harpies at the National Press Club. I mean so-called moderates (wets and leftists) within his own ranks scuttling his attempt to protect religious freedom. What has religious freedom to do with sex? Well, while hetero-fornicators take it in their stride, same-sexers and change-sexers don’t care overmuch for fire and brimstone from the pulpit. I suppose that’s one way to sum it up.

The shenanigans over the Religious Discrimination Bill (RDB) were confusing, weren’t they? Who was for what, and what, at any one time, was the ‘what’? And where are we now?

A complication, which I’ll come to, when tackling discrimination through legislation is parliamentary draftspersons. They seem incapable of using plain words. A company for which I worked, once sought advice from a major law firm. Back came convoluted legalise in reams. Went to the late SEK (Samuel Edward Keith) Hulme QC. Back came clarity in two and a half pages. It can be done.

The problem faced by the government was not the Religious Discrimination Bill (RDB) per se but the existing Sex Discrimination Act (SDA); specifically, section 38(3), which the gay lobby in the parliament wanted excised as part of the package. Here is the whole section 38 below. Advisedly, I have combined its three parts into one, as laid out in brown text between square brackets:

Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with 

[1. employment as a member of the staff of an educational institution or

2. a position as a contract worker that involves the doing of work in an educational institution or

3. the provision of education or training by an educational institution] that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

I have combined the three parts, because only through a process of elimination does the import of part 3 emerge clearly. The first two parts, as you can see, cover staff and contract workers employed by educational institutions. Ergo part 3 must cover students, though direct reference to them is excluded lest clarity prevail.

Now, you guess. What power does this section 38(3) of the SDA give to a religious school to refuse to admit or to expel students for being gay or for comporting themselves as being the opposite of their biological sex. I personally don’t know. It’s vague and, in any event, depends upon whether their presence can be shown, in good faith, objectively, to injure the religious susceptibilities of the adherents of whatever is the applicable religion. What does “injure religious susceptibilities“: actually mean? Who knows? It’s gobbledegook.

Martyn Iles, executive head of the Australian Christian Lobby (ACL), has his own take on the provision. While noting “that it may not be perfectly drafted” — you can say that again — he explains that the right to expel gay and transgender students is “not the reason it exists … and is not the way it is ever used.”

Iles suggests that the provision simply allows a school to have a Christian ethos, to have traditional polices around girls’ and boys’ bathrooms, uniforms, dormitory arrangement’s, prohibition of same-sex coupling at school formals, and the like.

I want to agree with Iles and I suspect he’s right on a practical level. But the words in the provision could on their face be construed to allow a school to expel a gay student for being gay, if the expression of his gayness is taken to be injurious of religious susceptibilities. That would be concerning. On the other hand, as I’ve previously argued, a Christian school must have the right to draw any number of lines, most having nothing to do with sex, to protect good order and its religious identity and integrity. It’s just very difficult to put it into law when the focus is on sexual preference. If the provision simply means what Iles says it means, then why not reflect that in written law.

As it stands, I’m of two minds. I don’t agree with any law giving license to a school to discriminate against students for their sexual orientation. At the same time, I don’t accept that it is discriminatory to insist on adherence to behavioural protocols which flow from a school’s religious ethos. Maybe that’s how section 38(3) should be amended.

As part of deal-making, the government temporarily and mistakenly landed on removing 38(3) except in reference to gender identity. Hacking away at legislative provisions without exploring the consequences is never a good idea. And for now, canning the RDB is the best outcome in the circumstances. Sadly, the circumstances are a cultural and political landscape which is no longer anchored in Judeo-Christian values. That’s been a very bad development and we’ve not yet seen all of the misery it will bring. Look at the ABC; at, say, Laura Tingle and Louise Milligan, for an insight into the future. Christian schools will need all the help they can get.

Finally, to gender identity. Over which, my local federal member, Trent Zimmerman got his knickers in a knot. Memo to Trent from a constituent: You can’t have a student with male genitalia given access to girls’ bathrooms on school grounds, even if when attired in a skirt. You can’t have Bill becoming Jill and flouncing around school grounds in a skirt in an all-boys’ school. It would be disruptive and unseemly. You can’t have Jill becoming Bill and wandering into boy’s bathrooms. Things could go wrong, for “Bill.” And what precisely is an all-girls’ school to do with Jill who insists on being Bill? Coming out of the closet is one thing; bringing Les Girls to St Mary’s or St Sebastian’s High is quite another. 

 

18 comments
  • Blair

    “You can’t have a student with male genitalia given access to girls’ bathrooms on school grounds, even if when attired in a skirt. ”

    “Toilet and change room use
    When determining which toilets and change rooms a student will use, the school should discuss this
    with the student, their parent or carer, and consider options based on facilities available at the school
    e.g. the establishment of non-gender specific toilets and change rooms where there are individual
    stalls or cubicles that can provide privacy for all users.
    School dress code
    A school uniform option should be available that can be worn by students of any gender. Students
    who are transgender or intersex should be permitted to wear the uniform of their choosing.
    Diversity in Queensland schools
    Information for principals
    Department of Education Queensland

  • Maic

    It seems to me that trying to be nice to leftists and assorted activists only leads to more demands and a perception that you are weak and can be rolled over.
    Christian and private schools should set out their standards and values in Plain English and expect parents to support them. These standards and values should be maintained and protected – those who find them repulsive should go away and support their own schools – assuming that parents will want their children to attend these schools.
    I say that parents who want a values based education for their children should speak up and make it quite clear to their politicians they they won’t support any political party which won’t protect their schools.
    Like it or not this issue has become a battleground and those who won’t fight are going to be overwhelmed.
    So get out there, parents, and fight for your schools and your children. No one else is going to do it for you!

  • Stephen Due

    The Bill should be seen in its broader political context. Some people, for example, think that raising children as Christians is a form of child abuse. Their objective is to put as many legal hurdles as possible in the path of Christian education, and ultimately to make faith-based schooling impossible. Anti-discrimination legislation helps their cause. They do not want faith-based exemptions.
    However Christians should be wary of Greeks bearing gifts. Faith-based exemptions can be granted one day and removed the next, or gradually wound back. They can be worded so as to be confusing, ambiguous, or ineffective.
    But the main thing wrong with this Bill, and the entire apparatus of existing anti-discrimination law, is the assumption by government of yet more power to control how people conduct what should be their own business. Australia does not need an increasingly complex body of legislation in this area. Christians in particular should not tolerate government telling them how to run their schools and raise their children.

  • lhackett01

    Where does the reasonable balance lie? I think religious schools should be allowed to select staff based on their compatible beliefs. However, I think such schools should admit all students who choose to attend. All students should accept the ethos of the school. Why would they choose to attend, otherwise? If they choose not to accept the ethos of the school and cause disarray then they should be expelled.

    I agree that speaking hatefully to other person, for whatever reason, is objectionable but it sometimes happens in the school yard as well as in society at large. However, expressing an opinion about a person or his actions, whether relating to race, religion, or anything else, should be allowed in a free society. I should be allowed to be upset and speak to you forcefully about your cat defecating on my lawn. I should be allowed to discriminate against your cat, and you as the owner of the misbehaving cat, if you had a cat and it did so defecate. I should be allowed to say and write that there are aspects of Islam that I find objectionable. I should be allowed to say so directly to a Muslim, and have done so. I would never do so with the intention of deliberately causing offense, rather to have a discussion. That some Muslims may find my comments offensive is understandable but not a reason to have me punished by a court. I am sure that Islamists have not changed their religious views about homosexuality for example merely because of the Sexual Discrimination Act. Or, are we to continue along the path to “1984”, a time of totalitarianism, mass surveillance and repressive regimentation of people and behaviours within society?

    The ‘discrimination laws’ are part of the problem. For example, Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech. These restrictions are not only unreasonable but onerous and such as to severely impact on the operation of Australian democracy. The issue is not merely the inclusion of the words “insult” or “offend” in the Racial Discrimination Act, Section 18C. The issue is the inclusion of any and all wording that limits free speech based on the subjective feelings of a person claiming discrimination. Each word in the Act, “offend, insult, humiliate, and intimidate” is wholly subjective. All rely on the claimed emotions of a recipient at the time. Australian law should not be based on such nebulous criteria. This Act is seriously diminishing free speech in Australia by effectively denying anyone the freedom to openly question the beliefs and acts of others, no matter how objectionable those beliefs and acts might be considered.

    Australia has a plethora of Acts dealing with discrimination:
    • Australian Human Rights Commission Act 1986
    • Age Discrimination Act 2004
    • Disability Discrimination Act 1992
    • Racial Discrimination Act 1975
    • Sex Discrimination Act 1984

    Apart from defamation, the only restrictions on free speech should be to prevent incitement to violence. This is covered by The Crimes Act Amendment (Incitement to Violence) Bill 2005. This amended the Crimes Act 1914 to deal with threats and incitement of violence against people and property because of race, colour, religion or national or ethnic origin. This Act is sufficient.

    The Religious Discrimination Bill must be passed and must allow religious institutions to select staff and to operate according to their religious mandates.

  • gray_rm

    What’s the big fuss? Comments seem overwhelmed trying to avoid the point. If you’re a Christian, don’t be gay. You can’t flounce around a schoolyard in drag and go to a Christian school. What’s so dreadful about that?
    And the nonsense of ‘gender-neutral’? If your a boy, you to to a boy’s school; girl, girl’s school. Not sure? Public school. Job done.
    How hard is that? It isn’t. Stop pandering to 0.1% of maladjusted kids and just get on with education.
    How stupid is this whole nonsense – it’s straightforward.

  • Salome

    One question that arises in my befuddled mind is why only religious people and institutions should be considered by anyone to be entitled to be free of the nonsense of ‘I think a am a boy/girl, therefore I am a boy/girl’. Plenty of non-religious people are concerned about the explosion of girls thinking they are boys, in particular, and of the willingness of the medical authorities (for authorities they have become) to give them treatments that will block the one thing that cures the overwhelming proportion of this nonsense–puberty. And as for whether school children (I have a slight German-style leaning towards reserving ‘students’ for those in tertiary education) are straight, gay or whatever, they are children. They are at school. They are not there to express their sexuality one way or another. Perhaps schools should just ignore it, instead of having special assemblies at which children get up and come out (yes, it happens) to the loud applause of everyone else. No amount of exemption for the religiously minded will have any real effect on this nonsense until we are, well, rid of this nonsense. A good start would be for schools to stop advertising it.

  • Peter Marriott

    Well done Peter, and good common sense gray-rm.
    Of course a Christian school should be able to have essential rules and regulations, based on Christianity…that’s why it’s a Christian school. I would suggest that anyone at all trying to enroll their child into one, when the child and by extension no doubt the parents, obviously does not meet the Christian standards or anything like them…is only doing it as a political stunt, with the objective being to attack the Church with atheism and hatred being the main reason. I should add that parents doing that could not possibly have the child’s best interests at heart either.

  • pgang

    Thanks for covering this Peter. It is a real mess, but then what isn’t these days?
    I do question your statement that ‘I don’t agree with any law giving license to a school to discriminate against students for their sexual orientation.’ That seems to be dealing in relativisms. If various ‘sexual orientations’ are allowed, then why not transgenderism, and so forth? There is no underlying determining moral factor.
    At heart this is an issue of the Christian determination of reality, and whether Christians have the freedom to express and live that reality. Sexuality is a part of that and should be included within a school’s ability to make moral choices for itself. Reality is all or nothing, and it makes no sense to say this bit is ok, but that bit is not.

  • pgang

    Salome, it’s because non-Christian people have no groundwork for meaning apart from whatever happens to be the popular, or authorised dictum of the present. Therefore there is no argument to fall back on from which to defend a moral or even an epistemological question.

  • Doubting Thomas

    Private schools, religious or otherwise, should have the unfettered right to choose to accept or exclude anyone they wish. The idea that discrimination is inherently unfair is ridiculous.

  • Elizabeth Beare

    The big bone of contention at my daughter’s elite private school many years ago was the question of wearing jewellery. We do not wear jewellery to school at BigPrivateSchool, intoned the headmistress firmly to the incoming Year 7 class, explaining the plethora of dress and behavioural requirements when in uniform (or out of it). My daughter gasped in horror, but survived and did well, proud of the symbols of achievement eventually sewn onto her regulation blazer. The school also insisted on a Panama hat and black regulation shoes. Our parental view was that this school, nominally Christian, provided the boundaries that we felt our headstrong adolescent daughter needed; boundaries also present in public schools in my day, back in the 50’s. Christian schools still by and large still set boundaries not set these days by leftist influenced State schools.
    The point is that all schools have rules, some of them simply traditions that establish membership, others based on ‘values’ which are held firm. The two things intermix and support each other – the traditions often embody beliefs and values. Want to display jewellery, be slack re your uniform or study, or wear your docs to school, then go to another school which will have approaches and beliefs to suit.
    Same applies today – think you are a boy when you are actually a girl or vice versa?
    Go to another school. Not all schools will suit all individuals. Fact of life, fact of parenthood, fact of a changing world and its influences.

  • BalancedObservation

    Generally very good article which deals with the issues surrounding the Religious Discrimination Bill far better than the mainstream media.

    I can relate to your personal experience Peter with legal drafting. But ironically my experience was with a bank which had decided to use plain English in their terms and conditions for a loan. The conditions were pretty alarming in plain English if you thought them through. If they’d been in the usual gobbledygook it would have been less confronting for me, I’m sure. But obviously just as much a problem.

    I think drafting legislation in this bill to cover these extremely complex situations was always going to be problematic -regardless of the skill of the drafter. Of course it will be far worse with poor drafting.

    I take the view you’re better off leaving things as they are – that this Bill was really unnecessary. Especially when you consider this legislation would cover all religions not simply Christian ones.

    So I agree the outcome – although heralded in the mainstream media as a huge personal problem for Scott Morrison – was a good outcome considering. And I can’t see it being too damaging for Scott Morrison with religious groups anyway. It should be pretty obvious he’s done all he reasonably can to get it passed.

    The main focus on the gender related aspects involved, tended to mask what I see as major issues with this bill for Labor concerning employment discrimination.

    One of my main takes from the whole episode is just how much a small target Albanese Opposition is prepared to compromise what should be a Labor’s principles on matters such as employment discrimination – apparently just so it can maintain its small target strategy.

    When you look at the amended version of the bill – that is what passed the House of Representative and what Labor voted for in the House of Representatives – you’ll see it contains provisions which legalise the right of religious schools to discriminate against students and staff. So arguably the Bill as supported by Labor legalises the sacking of staff and the removal of students on religious grounds and legalises the refusal to employ staff or admit children on religious grounds.

    I’d advise anyone who’s interested to actually read the amended Bill ( I stress the amended Bill) which passed the House of Representatives with the support of the Albanese opposition. It’s available online.

    The Albanese opposition seemed to largely see the issue as one of tactics, wedging and maintaining his small target approach rather than principle. The first words from Anthony Albanese which led the ABC news were:
    “The prime minister has tried to wedge Labor and ended up wedging himself.”

    However one of the major outcomes of the issue is to expose the significance of Albanese Labor’s small target approach. It provides concrete evidence of how expedient it’s prepared to be with its principles to maintain a small target approach. Don’t take my word for it take a look at the amended legislation online which Labor supported in the House of Representatives.

  • Peter Smith

    pgang, you say, “I do question your statement that ‘I don’t agree with any law giving license to a school to discriminate against students for their sexual orientation.’”
    But it’s pertinent to note my immediately following sentence: “At the same time, I don’t accept that it is discriminatory to insist on adherence to behavioural protocols which flow from a school’s religious ethos.” If a gay or transgender student behaves in accordance with school protocols, what’s the problem. What’s the problem with a gay (or hetrosexual) Catholic priest if he’s celibate? There isn’t one, is there; otherwise no priests.

  • Elizabeth Beare

    gray_rm, I think you’ve said it best and most succinctly.

  • Claude James

    Now:
    Are there Muslim schools, funded by non-Muslim tax-payers, that teach content that is contrary to Muslim ideology?

  • Katzenjammer

    Invented sex and gender issues are being used by the haters of religion as the touchstone to destroy any religious institution possible. The bill should have stuck to protection of religious rites, and not dipped its toe into the slime that’s already been totally colonised by their enemies.

  • lbloveday

    At the start of her year 11 in a Catholic Girls School, my daughter came home and said the School Captain was appointed “just because she was gay”, she wasn’t particularly popular, not good at sports, not in the top few academically.
    It wasn’t jealousy as only year 12 students were eligible and she had never showed any anti-homosexual traits – at a previous co-ed school she had befriended an effeminate boy mostly shunned by boys and girls alike.

  • andrew2

    It is nice to have this discussion, but in the Catholic schools my children attend the teachers seem to be on board with the LGBT agenda and turn a blind eye to lots of moral problems.

    While it is good to focus on morality, the more concerning problem is drug use, including vaping from year 7 and sexual activity from about the same age. My son finds himself counselling friends about their relationship with their alcoholic fathers and divorced parents, and self absorbed mothers. He is an amazingly mature young man but the teachers keep trying to crush his spirit because he has a mind of his own and learned to mask his intelligence from his peers to prevent being bullied. My other kids are smart enough to keep their heads off the chopping block.

    Catholic schools have been horrible to him but luckily he is nearly out of there. Teachers talk about their anti-bullying policies in schools but they are the biggest bullies in there. I work with families with disabilities and it is the same story. The schools put up PowerPoint presentations of how people with disabilities “Life them Up” but drive them out the door as soon as those disabilities result in challenging behaviours that require anything extra from staff.

    I find the trans issue laughable in the face of all this.

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