Striking a Balance: A

Review of Religious Educational Institutions and Anti-Discrimination Laws

Bruce Zhang

Daniel Cash’s article in the Sydney Morning Herald (published 18 April 2023) about his experience as a gay student in a private, Anglican grammar school is a timely reflection on the Australian Law Reform Commission’s (ALRC) ongoing review of anti-discrimination laws in Australia. This article aims to briefly describe and discuss reform proposals made by the ALRC in its Consultation Paper released in January this year.

The current anti-discrimination legal framework

In Australia (except Victoria and Australian Capital Territory) there is no Bill of Rights at the Commonwealth, State or Territory level. This is notwithstanding that section 116 of the Constitution of Australia enshrines the right of free exercise of religion.

Since the 1970s, the Commonwealth, State and Territory parliaments have passed several antidiscrimination legislations. At the Commonwealth level, there are the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004. In addition, each State and territory has its own anti-discrimination acts. For example, in New South Wales, the AntiDiscrimination Act 1977 provides a framework of antidiscrimination measures covering aspects of race, sex, sexual orientation, age, HIV status, and so forth.

Although these statutes have been reformed on multiple occasions in response to social and economic changes as well as the growing acceptance of LGBTQIA+, these statutes do not strike a delicate balance between equality and religious freedom, particularly in the context of religious and educational institutions. The demand for such a balance has proliferated and attracted attention from diverse stakeholders such as governments, the legal profession, education administrators, and human rights advocates.

The Australian Government responded to this by committing to amend the Sex Discrimination Act and other Federal legislation if necessary. As outlined in the Terms of Reference to the ALRC, their policy basis is to ensure that an educational institutiton conducted by the doctrines, tenets, beliefs or teachings of a particular religion or creed:

• Must not discriminate against a student based on sexual orientation, gender identity, marital or relationship status, or pregnancy;

• must not discriminate against a member of staff based on sex, sexual orientation, gender identity, marital or relationship status, or pregnancy;

• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in selecting staff.

ALRC Inquiry and Preliminary Findings

Due to the fact that any anti-discrimination law reform in schools with religious backgrounds must respect religious beliefs and practices and uphold human rights and equality, the ALRC must assist the Australian Government in fulfilling its policy commitments. As part of its mandate, the ALRC inquires about changes to the Sex Discrimination Act and the Fair Work Act 2009 (Cth). As stated earlier, the ALRC released its Consultation Paper in January 2023 and will provide the Final Report to the Commonwealth Attorney-General by 31 December 2023.

The ALRC consulted with various stakeholders, such as school principals, students, legal professionals, and the human rights commission. The Inquiry includes an examination of foreign jurisdictions such as England and New Zealand. The ALRC also examines Australia’s international obligations regarding human rights to ensure the recommended legal changes align with those obligations.

According to the Consultation Paper, the Sex Discrimination Act falls behind state and territory antidiscrimination legislation in regards to narrowing exemptions for religious discrimination. The ALRC made four general propositions requiring reforms and 14 technical proposals (i.e. recommending changes to specific provisions of the Sex Discrimination Act) for reform. The propositions and recommendations aim to line the Commonwealth with its international obligations and are as follows:

• Proposition A: discrimination against students on the grounds of sexual orientation, gender identity, marital or relationships status, or pregnancy

• Proposition B: discrimination against staff on the grounds of sex, sexual orientation, gender identity, marital or relationships status, or pregnancy

• Proposition C: preferring staff involved in the teaching, observance, or practice of religion on religious grounds

• Proposition D: ongoing requirements on all staff to respect the religious ethos of the education institution.

Amendments in these proposed areas to the Sex Discrimination Act will impact religious educational institutions’ management. Some crucial points identified by the ALRC include:

• extending the prohibition of direct discrimination to indirect discrimination so that a religious, educational institution could no longer impose policies or practices that can disadvantage students with characteristics of LGBTQIA+, who are unmarried, or are pregnant;

• a school could no longer refuse to enrol a student who is LGBTQIA+;

• a school could not refuse to register a student because their parents were in a same-sex relationship;

• outside the remaining narrow exceptions, a religious, educational institution could not treat staff members (prospective or current) less favourably because they were (among other things) of a particular sex, LGBTQIA+, divorced or in a de facto relationship, or pregnant (direct discrimination);

• a university could not refuse to consider a lecturer’s application for promotion because they were gay and in a same-sex relationship;

• a school could not require, as a condition of appointment, any staff member or prospective staff member to sign a statement of belief by which they had to affirm that homosexuality is a sin (because this would be discriminatory against an LGBTQIA+ applicant);

• a religious school could not take action against a staff member for supporting an LGBTQIA+ student or attending a Pride rally because it undermined the school's religious ethos.

Overall, the ALRC is trying to harmonise the need for holding religious beliefs freely with the acceptance and protection of LGBTQIA+ students and employees.

Limitations of the ALRC’s Inquiry

The ALRC explicitly states in the Consultation Paper that it ‘is not tasked with assessing the relative importance of religion and equality, nor related human rights such as the rights to privacy and freedom of association’. Instead, the Inquiry looks at whether the interference of these rights with other rights is justified. In other words, the ALRC is tasked to work out a legal pathway to acknowledge and respect all these fundamental rights and preserve human rights to the maximum degree possible.

Further, the Inquiry is limited to the Sex Discrimination Act and Fair Work Act. However, students with LGBTQIA+ backgrounds can also have other attributes, such as race and disability. The Sex Discrimination Act limits its applications to discrimination against persons based on sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding. The Fair Work Act aims to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians. Considering the limited scope of the two statutes, additional inquiries are needed to address complex issues at the intersection of sexual orientation, race, disability, and other attributes.