Religious schools may be fundamentally undermined by Commonwealth parliamentarians adopting flawed amendments to the Sex Discrimination Act in their admirable commitment to protecting the welfare of all students at religious schools.
A leaked Coalition amendment focusing on students would prevent religious schools from expelling, imposing a ‘detriment’ or limiting access to a ‘benefit’ on grounds including sexual orientation, gender identity, marital status and pregnancy.
Such an amendment appears reasonable but the possibility that the terms ‘detriment’ and ‘benefit’ will be broadly interpreted is a major cause for concern as it could make it unlawful for religious schools to operate according to their understanding of gender identity, sexual ethics and marriage.
Will a religious school, for example, that teaches the mainstream Christian view that sex should only occur within a marital union between a man and woman be acting unlawfully on the understanding that this imposes a detriment on gay students?
If a boy experiences gender dysphoria will his classmates and teachers be legally required to accept that he is now a girl and be compelled to treat him accordingly regarding pronoun use, uniforms, changing rooms, accommodation and sport even if this contradicts the school’s religious convictions?
Will religious schools be required to run courses like the ‘Safe Schools’ program and other controversial programs as any refusal would be unlawful for imposing a detriment on the grounds of sexual orientation and gender identity?
The Coalition’s proposed amendment also relies on a ‘best interests of the student’ requirement which also appears reasonable but would likely give courts and anti-discrimination tribunals, and not parents and those invested in a student’s care, the power to declare what those ‘best interests’ might be.
This power would allow an activist court or tribunal to reject the current approach taken by religious schools to caring for their students who are same-sex attracted or experiencing gender dysphoria, and instead insist that the child’s ‘best interests’ require schools to act in a way that violates their religious beliefs.
In an increasingly activist and litigious society providing the courts with the ability to declare the decisions of religious schools unlawful on the basis of a general test would leave religious schools permanently uncertain about the legality of their actions.
Further, as discrimination complaints often involve no financial cost for the complainant it raises the possibility of numerous complaints that will cause religious schools substantial financial and non-financial costs even if they are ultimately held to have acted lawfully.
Parents will rightly be concerned that the faith-based schools they selected might soon be forced to promote an understanding of gender and sexuality that contradicts their beliefs and exposes their children to content which is not considered by parents to be in their child’s ‘best interests’.
The strong community resistance to the ‘Safe Schools’ program indicates that parents will object once it is understood that the proposed amendments may legally require religious schools to teach some of the controversial elements found within that program.
Some may argue that these issues are unlikely to arise as they have not occurred in jurisdictions such as Tasmania and South Australia, which do not allow religious schools to exclude or impose any detriment on students on the basis of attributes such as gender identity or sexuality.
However, it is only recently that issues involving gender identity have become matters of substantial national interest and same-sex marriage was only introduced last year. This changed cultural context could easily lead to religious schools being increasingly challenged in these jurisdictions.
The example of Archbishop Porteous subjected to a vilification complaint for publishing a pamphlet advocating traditional marriage is particularly relevant. Few would have predicted that the Tasmanian Anti-Discrimination Act could have been used to make a vilification complaint against Archbishop Porteous for distributing a pastoral letter on marriage until an activist decided to rely on the law to make a complaint.
Parliament is confronted with a complex issue that requires an approach that acknowledges the legitimate interests of students (especially vulnerable children), parents, school leaders, employees, religious adherents and all members of the community.
The rush by some politicians to address this issue in a few weeks before the end of the parliamentary year is unacceptable. Parliament should instead take the time necessary to ensure that it carefully considers the merits of different models to regulating religious schools and allow the community sufficient time to assess the merits of different approaches. An informed, evidence-based decision can then be made on the best model to adopt for regulating the decisions made by religious schools regarding their students.
This is a profoundly important issue and it is essential that Parliament takes the time to get it right.
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’. Commentary on the article is welcome and can be sent to firstname.lastname@example.org.
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