There is now bipartisan agreement that LGBT students in religious schools should be protected against discrimination. However, there is significant disagreement about how this should be achieved.
The Government’s proposed amendments have been published in the media.
For the reasons we set out here, PIAC believes the amendments do not adequately protect LGBT students from discrimination and should be rejected.
What are the proposed changes?
The proposed changes include:
- Repealing section 38(3) of the Sex Discrimination Act 1984 (SDA), which is the primary (although not only) exception that allows religious schools to discriminate against LGBT kids, and
- Adding a new s7B(2)(d), to alter the test of ‘reasonableness’ in determining whether indirect discrimination has occurred. The change would require a court to explicitly consider whether the religious school has
- acted ‘in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’ and
- had ‘regard to the best interests’ of students.
What’s wrong with the changes?
The changes proposed to section 7B will introduce unnecessary legal complexity to the SDA and appear intended to give greater latitude to religious schools to discriminate against students on the basis of sexual orientation or gender identity.
They will therefore fail to adequately protect LGBT students against discrimination.
In PIAC’s view, religious schools should be held to the same standard, under the same rules, as all other schools when it comes to discrimination against students.
The change required can be achieved simply by making two amendments to the SDA:
- Repeal section 38(3) which creates an exemption for religious schools to discriminate against LGBT students.
- Amend section 37 which, in section 37(1)(d), contains a general exemption for bodies ‘established for religious purposes’ that could apply to schools. An amendment could be in the form of a new section 37(3) that provides (similar to section 37(2) with respect to aged care facilities) that paragraph (1)(d) does not apply to educational institutions.
This would ensure that discrimination against students on the grounds of sexual orientation or gender identity is unlawful in all schools. No further changes are required.
What is indirect discrimination?
Indirect discrimination is sometimes referred to as ‘disparate impact’ discrimination. In general terms, it occurs when people appear to be treated the same, but the treatment unreasonably disadvantages a particular group of people.
In this context, it would arise under the SDA if a religious school imposed, or proposed to impose, a ‘condition, requirement or practice’ that had, or was likely to have, the effect of disadvantaging LGBT kids.
Examples could include preventing students from taking someone of the same sex to their formal, or requiring trans and gender diverse students to comply with binary rules about uniforms or hair length. These practices may be unlawful unless the school can demonstrate that the requirement, condition or practice is reasonable.
What is ‘reasonable’?
What is ‘reasonable’ will depend on all of the circumstances of the case.
Under the existing law, it is open to a religious school to argue that the doctrines, tenets, beliefs and teachings of its religion or creed make its conduct reasonable. There is no need for special provisions that apply only to religious schools for such factors to be taken into account.
Nevertheless, the amendments propose introducing specific matters that a court would have to take into account in assessing the reasonableness of the conduct of religious schools towards students. These changes carry a serious danger of watering down the current test for reasonableness for a number of reasons.
The test for reasonableness currently requires a court to take into account whether the disadvantage caused to LGBT students ‘is proportionate to the result sought’ by the school. This is an objective test.
The proposed amendment first introduces a subjective factor that asks only if the conduct is ‘in good faith’ and ‘in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’.
The amendment also requires a court to take into account whether the school has had ‘regard to’ the bests interests of the student. This is again a subjective assessment and importantly does not require the court to itself consider the best interests of students, or even whether the school has had adequate regard to the best interests of students.
By privileging these subjective factors in the test for discrimination, the amendments risk undermining the protection of LGBT students against indirect discrimination.
To protect LGBT students from discrimination in schools, we should be making simple and clear changes to remove existing exceptions. There is no need to add loopholes or special rules for religious schools.