Legal position of LGBTIQ+ discrimination in religious schools

Cooper Grace Ward’s Annie Smeaton, Partner, and Samantha Ramsay, Lawyer, discuss the legal position concerning LGBTIQ+ discrimination, the Bill’s proposed amendments to the Sex Discrimination Act 1984 (Cth) and the impact for Schools and other Educational Institutions established for religious purposes. 

Annie will be among the Cooper Grace Ward lawyers who will deliver presentations this month at these events relevant to schools and other educational institutions: School Law Summit 2019, 11th Annual Workplace Symposium 2019 and 14th Annual Personal Injury Conference. 

The status of LGBTIQ+ students and staff in schools, colleges, universities and other education and training institutions (Educational Institutions) established for religious purposes made headlines late last year. The recommendations from the Federal Government’s review into religious freedom led by Philip Ruddock were leaked to the media.

If the Federal Government were to adopt the recommendations from the review, Educational Institutions established for religious purposes would be guaranteed the right to discriminate against LGBTIQ+ students and staff. However, the review recommended that any amendments to the Sex Discrimination Act 1984 (Cth) (SDA) should not affect those employees and other workers already engaged by an Educational Institution or students already enrolled. The review’s recommendations would also require Educational Institutions to publicly publish, and provide to prospective employees, workers and students, policies outlining the institution’s position concerning LGBTIQ+ students and staff.

Media coverage suggests the implementation of the review’s recommendations is not widely favoured.

PROPOSALS

In response to the Review’s recommendations, the Greens introduced the Discrimination Free Schools Bill 2018 into Federal Parliament. The Bill had its second reading on 16 October 2018.

The Bill is intended to remove exemptions under the SDA which presently allow Educational Institutions established for religious purposes to discriminate against existing and prospective students and staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy.

Specifically, the Bill:

• • provides that the section 37(1)(d) general exemption under the SDA for bodies established for a religious purpose does not apply if:
    • the body is an Educational Institution; or
    • when an act or practice of the body relates to the provision of education or training by that body, or is connected with the employment of persons to provide that education or training;
  • proposes to repeal the section 38 exemptions under the SDA allowing Educational Institutions to discriminate against existing and prospective employees, contract workers and students on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy, where:
• • • the Educational Institution is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and
    • the person who discriminates does so in good to faith to avoid injury to the religious susceptibilities of adherents of that religion or creed; and
  • proposes to amend the Fair Work Act 2009 (Cth) so that Educational Institutions cannot discriminate in employment in a manner that would no longer be permissible under the SDA.

The removal of provisions which allow discrimination against LGBTIQ+ teachers and staff from the SDA has been raised in parliamentary debates with various senators expressing serious reservations that the Bill does not allow religious schools to preserve their ‘character’. This could see progress on the Bill stall. The current government has also indicated an intention to draft its own legislation (with possible support from the Labor opposition). Proposed government legislation would protect LGBTIQ+ students from discrimination but would not extend those protections to employment.

Given the significant public interest in this topic, now is the perfect time for Schools and other educational institutions to review their current legal obligations in relation to LGBTIQ+ individuals.

WHAT IS UNLAWFUL DISCRIMINATION GENERALLY?

Direct discrimination is treating another person less favourably on the basis of a protected attribute, which for present purposes, includes their sex, sexual orientation, gender identity, marital or relationship status or pregnancy, than someone without that attribute would be treated in the same or similar circumstances.

Indirect discrimination is imposing, or proposing to impose, a requirement, condition or practice that has, or is likely to have the effect of disadvantaging people with, for present purpose, the attribute of sex, sexual orientation, gender identity, marital or relationship status or pregnancy, and which is not reasonable in the circumstances.

Current exemptions under the SDA

Employees and workers

Currently, under sections 38(1) and (2) of the SDA, discrimination against existing and prospective employees and contract workers on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment or work at the education institution is permissible where:

• • the Educational Institution is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and
  • the person who discriminates does so in good to faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Students

An identical exemption exists under section 38(3) of the SDA in respect of existing and prospective students.

This religious exemption does not apply to students and staff with the attribute of intersex.

CURRENT QUEENSLAND EXEMPTIONS

Employees and workers

Under section 25(1) of the Anti-Discrimination Act 1991 (Qld) (ADA) ‘a person may impose genuine occupational requirements for a position’. In Queensland, it is not unlawful for an employer to discriminate against a person where:

(a) the person openly acts in a way that person knows or ought reasonably to know is contrary to the employer’s religious belief; or
(b) it is a genuine occupational requirement of the employer that the person, in the course of or in connection with the person’s work, to act in a way consistent with the employer’s religious beliefs.

It should be noted that these requirements represent a very narrow exemption and could potentially be difficult to argue effectively. For instance, it could be more easily argued that it was a genuine occupational requirement for a teacher who was engaged to teach religious education classes, to act in a way consistent with the employer’s religious beliefs.

Students

In contrast to the Commonwealth position, in Queensland, section 41 of the ADA provides that an educational authority can discriminate against a student where that authority operates, or proposes to operate, an educational institution wholly or mainly for students of a particular sex or religion, or who have a general or specific impairment by excluding applicants who are not of the particular sex or religion.

In Queensland, therefore, the only way certain Educational Institutions can discriminate against students is if they are not of the religion or sex of that Educational Institution.

As a result, both the Anti-Discrimination Commission Queensland and Education Queensland have published online materials that recognise refusing to acknowledge a preferred gender or name can give rise to a breach of state discrimination legislation.

CURRENT NEW SOUTH WALES EXEMPTIONS

By comparison, New South Wales allows for a private educational authority, including religious schools, to discriminate against students and staff on the basis of their transgender status in accordance with section 38K(3) of the Anti-Discrimination Act 1977 (NSW) (NSW Act) or on the basis of homosexuality in accordance with section 49ZO(3) of the NSW Act.

Freedom for religious schools to restrict enrolments is broadest in New South Wales, where the exemption from general anti-discrimination principles is unfettered (that is, it does not need to be exercised in good faith or in accordance with religious tenets) for all private educational authorities in relation to ‘sex, marital status… transgender or homosexuality’.

New South Wales provides a blanket exemption to the anti-discrimination prohibitions in section 56 of the NSW Act in relation to any ‘act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’

CONCLUSION

Many of these issues can be dealt with effectively by policies and procedures. Educational Institutions should be encouraged to consult with students, parents and other stakeholders, particularly in relation to transgender issues. Educational Institutions can introduce measures such as dealing with both chosen sex as well as biological gender on files, gender-neutral bathrooms and gender-neutral uniforms.

Educational Institutions should watch this space carefully as further developments are expected.

Annie Smeaton has many years’ experience as an advocate with a strong background in employment, industrial, safety, education (including pre-enrolment and enrolment) and anti-discrimination law, Annie provides her employer clients with strong representation and practical commercial advice. Annie acts for large corporations and institutions as well as employers in the SMEs market and education and training, resources and energy, transport and logistics, manufacturing and professional services industries.  Annie acts for a range of independent schools, training institutions and institutions in the pre-university market.  Annie also undertakes employment and regulatory law work in the health sector. Annie has extensive experience undertaking complex workplace investigations concerning harassment, bullying and safety breaches. Contact Annie at Annie.Smeaton@cgw.com.au or connect via LinkedIn.

Samantha Ramsay is a Lawyer in Cooper Grace Ward’s workplace relations and safety team and provides clients with outstanding service and advice in relation to all areas of employment. Prior to joining the team at Cooper Grace Ward, Samantha worked in industrial relations consulting and the education sector, gaining invaluable experience representing and advising both individuals and corporate clients on a broad range of matters as well as experience in enterprise bargaining negotiations. Samantha is experienced in conducting workplace investigations, preparing onboarding documents and policies, defending unfair and unlawful dismissal, general protections, workers’ compensation, workplace, health and safety, discrimination and harassment matters. Contact Samantha at Samantha.Ramsay@cgw.com.au or connect via LinkedIn.

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