Marc Hardy
The persistent challenge of harmonising freedom from discrimination with the exercise of religious liberties has reached a crucial juncture that must be reconciled, especially when considering religious exceptions embedded in Australia’s anti-discrimination laws.
In January 2023, the Australian Law Reform Commission (‘ALRC’) initiated an inquiry to assess Australia’s existing religious exceptions for schools. Many faith-based groups assert autonomy based on religious beliefs, even if some deem those principles discriminatory. Conversely, many advocate that human rights, including those of LGBTIQA+ individuals, should be upheld consistently, irrespective of religious affiliations. This tension underscores the pressing need for an approach that navigates the protection of religious freedom while safeguarding the human rights of all students and staff within these schools.
Australia’s international obligations
While there is no distinct international human rights agreement explicitly addressing sexual orientation, it remains unequivocal that all individuals should enjoy identical human rights, regardless of their sexuality. Australia is a signatory to several international treaties encompassing the right to education, protection from discrimination, and the opportunity to participate fully in all aspects of society. For example, Article 2 of the Convention on the Rights of a Child and the International Covenant on Civil and Political Rights places an obligation on Australia to guarantee that every student can fully embrace the rights outlined in these treaties without any form of discrimination.
The UN Human Rights Committee, which oversees these treaties, has stated that discrimination based on sexual orientation is prohibited. Furthermore, human rights experts developed the Yogyakarta Principles, exploring how international human rights agreements apply to people of various sexual orientations and gender identities. While not legally binding, these principles advocate for integrating equality and non-discrimination based on sexual orientation into national laws and taking legislative measures to combat discrimination in both public and private spheres.
When faith-based schools implement policies that are at odds with these principles, it raises significant concerns about the broader implications for human rights. UN experts, including the Special Rapporteur on the right to education, have affirmed that discriminatory policies in schools can constitute ‘implicit violence’ and LGBTIQ+ students ‘have the right to an education free from violence and discrimination’. Considering these affirmations by UN experts, examining the potential repercussions of educational institutional policies becomes imperative.
ALRC proposed changes vis-à-vis church tradition
In February 2023, the Presbyterian Church of Australia (‘PCA’) in Victoria made a controversial call to assert its right to bar LGBTIQA+ students from holding school captain roles. Its submission to the ALRC contended that students in active same-sex relationships would ‘not be able to give appropriate Christian leadership’ in their schools. Consequently, this stance sparked spirited debates in the media about the rights of LGBTIQA+ individuals in faith-based educational settings, as exemplified in a recent opinion editorial. In it, the author, Daniel Cash, who identifies as gay and serves as the captain of Melbourne Grammar School, challenges this stance, stating, ‘I see nothing particularly Christ-like in telling a child that, because of some unchangeable fact about their identity, they cannot have a recognised position of respect among their peers’. Cash expresses concern over the potential harm caused by the PCA’s position, emphasising the need for religious groups to demonstrate compassion and avoid using faith to justify prejudice.
Similarly, in the human rights debate within educational settings, the Anglican church argues that religious schools should be free to hire teachers who align with their religious beliefs, even if it means excluding LGBTIQA+ individuals from employment.
Federal legal framework
In Australia’s existing legal framework, despite the prohibition of discrimination based on sexual orientation, religious exceptions shield certain actions from liability if ‘good faith’ criteria are met. These exceptions are troubling, especially in the context of public funding. The Australian Human Rights Commission’s ALRC submission noted that in 2021, non-government schools received a substantial $14.8 billion from the Federal Government. Consequently, supporting faith-based schools with taxpayer funds could imply unwitting endorsement of discriminatory practices against sexuality-diverse students and staff, potentially causing harm to their mental health.
The ALRC remains committed to reforming federal anti-discrimination laws to ensure religiously-affiliated schools are prohibited from discriminating against people based on sexual orientation and practices. Its proposal seeks to remove the exceptions currently granted to religious schools under the Sex Discrimination Act 1984 (Cth) (‘SDA’) and the Fair Work Act 2009 (Cth). In its place, it suggests implementing a more specific provision that permits the consideration of religious factors when hiring employees, but only when such consideration is determined to be balanced and appropriate in the given circumstances.
As the ALRC evaluates existing submissions from various stakeholders, all Australians must remain actively engaged in the conversation, as the outcome of its inquiry will shape the future of inclusivity and non-discrimination within all educational institutions. A collective commitment to fostering an environment that upholds the rights of every individual, irrespective of their sexual orientation or gender identity, will contribute to a more just and equitable society for generations to come.
Marc Hardy was an intern with the Australian Journal of Human Rights in Term 3, 2023.