Thu Mar 21

A major report recommends more protections for LGBTQ+ students and teachers in religious schools. But this needs parliament’s support to become law

Written by: Sarah Moulds, Senior Lecturer of Law, University of South Australia

The federal government has just released a major report ^[1] about anti-discrimination laws and religious schools in Australia.

It was done by the Australian Law Reform Commission, which finished its work late last year.

It has been keenly anticipated ^[2] by the LGBTQ+ community who want to ensure students cannot be expelled from religious schools, and to ensure LGBTQ+ teachers do not lose their jobs.

Some religious schools ^[3] have also been campaigning to maintain their right to hire staff who share their religious beliefs.

Why do we have this report?

This work forms part of a broader, highly contentious ^[4] debate about religious discrimination and expression in Australia. This has been going since marriage equality laws were passed in 2017.

The Australian Law Reform Commission’s ^[5] job is to provide the federal attorney-general with advice about how to bring the law into line with current social conditions and community needs. It is made up of independent legal experts.

The commission first started looking into the rights of religious schools in 2019 ^[6] at the behest of the Morrison government.

But its focus changed in 2022 ^[7], when the Albanese government asked it to look at what changes were needed to better protect students and staff from discrimination on the basis of sexual orientation, gender identity, relationship status or pregnancy.

This debate has been complicated by a mix of relevant state and territory laws ^[8] and the lack of a special law ^[9] protecting against discrimination on religious grounds at the federal level.

The LGBTQ+ community and supporters have been campaigning for changes to anti-discrimination laws around religious schools. James Ross/AAP

What does the report say?

The report notes many religious schools in Australia already have inclusive enrolment and employment policies and do not want ^[10] to discriminate against students or teachers on any grounds. The commission also highlights the importance of religious faith in the Australian community and says families should be able to continue to choose schools for their children that align with their values and beliefs.

But the commission also notes the laws need changing to make sure religious schools are not given a blanket exemption from the rules designed to protect people against sex discrimination. It follows a raft ^[11] of other inquiries documenting accounts ^[12] of students being expelled from faith-based schools “because they were transgender” or teachers being fired because of their sexual orientation.

The commission found when students or staff are subject to discrimination on the basis of these attributes, it can

result in tangible harm (such as loss of employment, and economic or social disadvantage) as well as intangible harm (such as undermining a person’s sense of self‑worth, equality, belonging, inclusion, and respect).

What does it recommend?

For these reasons, the commission recommends amending laws so religious schools are subject to the same rules as all other education service providers (including public schools).

This means religious schools can’t deny enrolment to trans students, and can’t expel a kid for having gay parents. It also wants laws clarified so religious schools can’t fire or refuse to hire teachers on the basis of their sex, sexual orientation, gender identity, marital status or pregnancy.

However, at the same time, the commission recommends religious schools should still be able to “build a community of faith ^[14]”, for example by giving preference when hiring to teachers who share the school’s religion, provided they don’t breach other workplace laws.

What does this mean for students, teachers and schools?

If the recommendations become law, not much would change for most schools. For schools in some places, such as Victoria ^[15], this change would simply align state and federal laws.

Religious schools will still be able to maintain their religious character ^[16] by selecting staff who share their faith. And while the recommended changes ^[17] would remove religious schools’ ability to discriminate directly on certain grounds, such as when hiring staff, a “reasonableness test” would still apply to working out whether other directions or conditions relating to employment are unlawful.

For example, this means a school principal could still ask a teacher to comply with a specific requirement, such as a dress code, if it is reasonable in the circumstances.

This means if the recommendations do become law, religious school administrators would need to check their employment and enrolment policies to review any conditions on staff recruitment (including interns and volunteers ^[18]. They would also need to check any rules or policies relating to students that could result in a disadvantage for people on the basis of their sexual orientation, orientation, gender identity, relationship status or pregnancy.

Prime Minister Anthony Albanese speaks in a church.

Prime Minister Anthony Albanese, pictured at a parliamentary church service in 2022, says he wants bipartisan support before he puts any changes to laws around religious discrimination and schools to a vote. Mick Tsikas/ AAP

What happens now?

Although the Australian Law Reform Commission is made of up some of the sharpest legal minds in Australia, it cannot change the law itself. Only federal parliament can do that by passing legislation to implement its recommendations.

At the moment this does not look likely. Earlier this week, Prime Minister Anthony Albanese said ^[19] any changes would need bipartisan support before he takes them to parliament.

Coalition members did not make supportive noises. On Tuesday, Shadow Attorney-General Michaelia Cash asked ^[20]: “how will religious schools be able to maintain their values?”

This suggests the debate around religious discrimination and schools in Australia will continue.