In 2022, the LGBTQ+ community breathed a sigh of relief when the Morrison Government’s Religious Discrimination Bill was thrown out after failing to secure enough support in parliament.
But it was also a lost opportunity to protect LGBTQ+ students, teachers and other staff from discrimination under existing laws.
Federal anti-discrimination and employment laws, including the Sex Discrimination Act and the Fair Work Act prohibit discrimination in a wide range of settings. But broad exemptions allow religious educational institutions (including early childhood education centres, schools, colleges, and universities) to discriminate against LGBTQ+ staff and students to uphold religious doctrine.
The current government has committed to protecting LGBTQ+ people in schools and has asked the Australian Law Reform Commission (the ALRC) to review these exemptions. The ALRC has released a consultation paper setting out proposals for change and inviting responses from the community. Changes to exemptions for other religious organisations are not proposed at this stage.
In summary, the ALRC proposals would:
Prohibit discrimination against students on the basis of their sexual orientation, gender identity, marital or relationship status or pregnancy, or that of carers or family members. Schools would no longer be able to:
- Refuse to enrol a student who is LGBTQ+; or whose parents are in same-sex relationship.
- Expel a student because they are LGBTQ+
- Deny or limit a student’s access to any benefit or subject them to any detriment because they are LGBTQ+.
Importantly, failure to address homophobic and transphobic bullying at school would be unlawful. Any uniform requirements would need to accommodate trans and gender diverse students.
Prohibit discrimination against teachers and other staff members on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy. Schools would no longer be able to:
- Refuse to hire or promote a staff member because they are LGBTQ+
- Place conditions on employment that discriminate on the basis of being LGBTQ+
- Dismiss a staff member because they are LGBTQ+
- Deny or limit a staff member’s access to any benefit or subject them to any detriment because they are LGBTQ+.
Schools would still be allowed to discriminate in some circumstances.
The proposals allow for schools to give preference to prospective employees who practice the religion and prohibiting employees from undermining the religious ethos of the institution. However, this cannot amount to discrimination against sexuality and gender identity. For example, a staff member would not be undermining the school’s ethos by entering into a same-sex marriage or supporting LGBTQ+ students.
Unfortunately, the proposals leave many grey areas and the potential for harmful discrimination against LGBTQ+ people. It is concerning that an exemption would still apply to teaching on sexuality and relationships. Schools would be able to require staff to teach religious doctrine or belief on sex or sexuality. The teaching must comply with curriculum requirements and the school’s duty of care to students. However, it is difficult to see how LGBTQ+ students and teachers could be adequately protected against the teaching of homophobic and transphobic material where it is endorsed by the religion.
Rainbow Families is making a submission to the ALRC inquiry so that the lived experience and perspectives of our community can be heard. We want to help ensure that our anti-discrimination laws balance the right to religious faith with the right of LGBTQ+ people to be safe and respected.
You can help by completing the short survey below.