Words || James Booth
On the 25th October, using the Anglican Church Diocese of Sydney letterhead, the principals and leads of 34 Anglican Schools in Greater Sydney and the Illawarra issued an open letter to all members of the Parliament of Australia. The letter in question concerns the rights of faith-based schools and the current exemptions under federal anti-discrimination law. The issuing of this letter has garnered attention from alumni of these schools, however this letter is one part of an ongoing debate as to whether upholding a right to religious freedom should come at the cost of the rights of LGBTQI+ individuals to live free from discrimination. It is hard to wrap your head around the different voices calling for their values to be represented, so here I present to you a very quick legal and political summary of what everyone is going on about.
What exactly is the Ruddock religious freedom review?
If we rewind time one year to November 2017, Australian Parliament is currently debating how to legislate the majority 62% ‘YES’ vote in favour of marriage equality, and the Turnbull government has appointed former attorney general Philip Ruddock to lead a panel in examining whether Australian law adequately protects the human right to religious freedom. Also sitting on the panel was Rosalind Croucher (president of the Human Rights Commission), Anabelle Bennet (barrister and former judge), Father Frank Brennan and academic Nicholas Aroney. The panel received over 15,500 submissions, with many marriage equality groups and unions seeking an end to exemptions in discrimination laws that allow religious organisations to discriminate based on sexuality, and many religious organisations calling for a separate religious freedom act to grant a positive right to uphold their ethos and values in employment practices. Essentially the panel was a means of looking into whether the right to religion was being upheld by Australian law, as a means of placating conservatives upset that LGBTQI+ individuals were now being granted the same legal and social rights to marriage.
The full report from the panel has not been made available to the public just yet, however they have presented their findings to the Turnbull government in May, 2018. So, a heads up; any recommendations you’re reading are likely submissions made by specific groups as the full report has not been made available just yet.
But aren’t anti-discrimination laws meant to prevent discrimination?
Good question! As you will find in many legal documents, the Sex Discrimination Act 1984 (‘SDA’) contains exemptions to the protections it offers against discrimination to balance the competing interests of society and a means of addressing legally complex situations. The relevant sections regarding employment are sections 14(1) and 14(2), which both identify sexual orientation, gender identity or intersex status as unlawful reasons in which an employer can discriminate against an individual in the case of employment – section 16(b) extends this protection to contract workers. While section 21 makes it unlawful to discriminate on the grounds of sexual orientation, gender identity, or intersex status in education, with section 21(1) applying to the admission of an individual as a student, and section 21(2) making it unlawful to discriminate against a student. However, as I mentioned before laws often contain exemptions to rules, therefore in line with section 38 Educational institutions established for religious purposes are not bound by the previously mentioned protections for either employees or students in such institutions.
So, I know I just quoted a lot of a legislation you probably won’t ever read, so to put it simply the exemption given to religious schools by section 38 allows them to legally participate in active discrimination against LGBTQI+ staff and students. This exemption currently exists within federal Australian anti-discrimination law, and arguably sees a larger focus being placed on the rights to these institutions to their ethos and values rather than of staff or students to exist without discrimination. It should also be noted that while the general rule is that federal law does usually override state legislation, the states themselves are not unified on the matter in that both Queensland and Tasmanian religious schools do not offer the same rights to discriminate against students based on sexuality that we see in other states.
If the laws already exist, why has this letter been written?
It has been speculated by several journalists that the full report has been kept under wraps until the Wentworth (a seat with a large number of LGBTQI+ voters) by-election was over. However, this has not stopped several recommendations of the report being leaked to media, one such leak reported by Guardian Australia noted that there was to be no need for discrimination to occur on the basis of race, disability, pregnancy or intersex status – however the leak did state that discrimination of individuals on the basis of sexuality should be permitted should the policy be advertised by the institutions. This recommendation would weaken the already absolute exemption to anti-discrimination laws, requiring the educational institutions to provide a public policy statement declaring their position, give notice to parents, students and prospective students, and have regard to the best interests of the child as the primary consideration in its conduct. Let it be noted that the panel did not recommend against discrimination based on sexuality, rather it recommends safeguards and formal processes to ensure the right to discriminate.
Following the leak of this information, on the 13th of October Prime Minister Scott Morrison made a promise that discrimination law amendments would be drafted to make it clear that no student at a private or religious school should be expelled based on their sexuality. Stating “Our government does not support expulsion of students from religious non-state schools on the basis of their sexuality”. Moreover Dr. Tim Wright, head of Shore School, informed the ABC that “there hasn’t been a gay student expelled from an Anglican school in my memory and there hasn’t been a gay staff member sacked from an Anglican school in my memory”. Therefore, the question must be asked that if Dr. Wright is correct in that section 38 hasn’t been used to expel students or sack teachers, then why have 34 Anglican heads and principals written a letter asking for the exemption to remain?
What exactly are they asking for?
In his statements to the ABC, Dr. Wright further implicated that the letter speaks for itself and that this is largely an issue of ethos and upholding the mission of religious based education institutions. The open letter draws a large focus on the role of the teacher as a role model and exemplar to their students, and implies that the employment of teachers that fit in with the values of the religious institution is akin to the way in which corporate companies and political parties select and hire. Perhaps one of the strangest inclusions in the letter is the call to the International Covenant on Civil and Political Rights (‘ICCPR’) and it’s 1980 ratification into Australian law, which allows the Australian Human Rights commission to accept submissions and investigate breaches of Australian’s human rights obligations. However, there is no acknowledgement in the letter of the generally accepted notion that articles 2 and 26 of the ICCPR promote that all people should be treated equally under the law, and as such there is an implied right for people to enjoy equal human rights regardless of their sexual orientation or gender identity.
At the core of their requests the 34 heads and principals note that there is no effective protection under Australian law which guarantees religious freedoms, and that until such a freedom is codified into Australian law they believe the exemption should remain as it is. Therefore, the letter can be understood to be a direct response to the previously mentioned leaks implying a weakening of the current section 38 exemptions, and as such an express statement from these school leaders in favour of preserving laws that actively allow discrimination against LGBTQI+ students and employees.
What does the government have to say about this?
In speaking to Sky News on Wednesday the 31st October, education minister Dan Tehan identified that the letter was a part of a very important discussion about competing rights. However, he has noted that attorney-general Christian Porter is currently working on the government response the issue, and has given his confidence in Porter’s ability to get the balance right. No resolution was met when parliament last sat, but the discussions are set to continue when it resumes.
What can we do?
It goes without saying that this open letter has had a negative impact on the wellbeing of current and former students. Former Abbotsleigh student Emma notes that “it takes a particular kind of spinelessness for all 34 to just go along with [the letter] and not consider the effects on their queer staff and students”. Further identifying that while there may not be any action on these exemptions, the effect is that “students and staff at these schools will feel unsafe. They will feel unprotected, unloved, unimportant”. Former student of Broughton Anglican College student Adam Torres shares such a sentiment, stating that “the fact that schools are pushing for religious exclusions where there would be any scope to do anything other than wholeheartedly welcome LGBTI students is incredibly invalidating and dangerous for students coming to terms with their identity”.
When asked about the effects of seeing his school on the list former student Isaac Sabel states “as a gay alumni who now works as a high school tutor, I can’t express in words how unsettling it was to see my old school Blue Mountains Grammar as a signatory on this letter. Remembering how difficult it was for me to reach a place of self-acceptance about my own identity in high school, my heart goes out to all the queer staff and students in these schools who have been sent such an open message of unwelcome and hate. If these schools are real about their so-called “Christian ethos”- a philosophy that is supposedly built on the tenets of love and acceptance, they will withdraw their name from the letter and issue an apology to the LGBTIQ+ community”.
Over 1000 current and former students of the Anglican schools have written to their principals regarding this issue, largely the result of an open letter written by former St. Luke’s Grammar School student Max Loomes. If you are a past student of any of these schools you can share or promote this open letter to your peers. When asked as to his intentions in creating this letter, Loomes noted that the “open letter is going to be sent to each of the schools on the list. It is letting them know that we, as former students, don’t agree with what they are doing, and we won’t stand for this.”. Alternatively, you or your parents can write your own individual letters to the heads and principals of these schools. If you are not a current or former student of one of these schools, what you can do is contact the attorney general or education minister’s offices and express your disagreement with these discriminatory policies.
This goes beyond enforcing ethos and religious values, this is an attempt to preserve pre-existing discriminatory laws to ensure that LGBTQI+ people in these environments are not afforded the same employment and education security as their peers. But then again, I could be wrong, and we should do nothing because this is all in the name of religious freedom right?