Reform calls on religious discrimination against school teachers don’t stand up

There’s a lot of poor reasoning and wanting it both ways in the religious discrimination debate, and it’s not confined to one side.

The Australian Law Reform Commission’s (ALRC) review of religious educational institutions and anti-discrimination laws leads with a recommendation to amend the Sex Discrimination Act to prevent religious schools from discriminating against students and staff on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy and, in the case of staff, sex.

The recommendation concerning students is straightforward and rational, and was in fact backed by a variety of religious groups in the ALRC’s consultation process — most significantly, several Anglican bodies.

As Anglican Schools Australia (ASA) said in its submission:

ASA supports the proposition that religious educational institutions (in our case Anglican schools) should not be allowed to discriminate against current or prospective students on the grounds of sexual orientation, gender identity, marital or relationships status, or pregnancy, or that a family member or carer has one of those attributes. Anglican schools are bound by a duty of care to our young people and the safety and wellbeing of our students is the top priority of every school.

There was much less support from religious education bodies in relation to staff — though, notably, Catholic Secondary Principals Australia backed the amendment along with ASA.

The recommendations, along with several others by the ALRC, prompted a hysterical tirade by Catholic archbishop Anthony Fisher (in, where else, The Australian), who claimed religious freedom “to gather, speak freely, pray together and undertake works of service for others” is being reduced “slice by slice” in Australia, that the ALRC offered only “a veneer of consultation”, and that “ideologues seek to force radical curriculum and policies on all schools in the area of sexuality and gender”.

Fisher was particularly outraged because the ALRC failed to give special “weight to the benefit that Catholic and other faith-based schooling has been to millions of Australian families”. “Religious providers are only asking for the freedom to keep offering their services from within their own spiritual tradition,” Fisher says. “People then vote with their feet.” Except, this is a straightforward category error by Fisher.

The “service” to which he refers is heavily subsidised by taxpayers. It can only be “their services”, in Fisher’s words, if they take no taxpayer funding. Religious groups opposed to ending discrimination against students want education services to be treated as a private space.

The Australian Federation of Islamic Councils claims “people of faith and their organisations need to create private spaces where religion can be practised” — a fair statement, but one entirely unrelated to publicly funded education services, which are a public space that must be subjected to public rules about who has access to those services. If religious groups want to be able to discriminate against students, their first task is to cease taking any taxpayer funding. Simple.

Fisher’s statement also fails in relation to people “voting with their feet”. An LGBTIQA+ student cannot vote with their feet; decisions about their education are made by their parents or carers, and are heavily dependent on a range of external factors. Moreover, being excluded from a school separates a student from their community of peers, and in many cases there may be limited options for alternative schooling.

The ALRC case, however, is substantially weaker on proposing to end discrimination against staff. Relying on reasoning such as consistency with international law (so what?) and that LGBTIQA+ staff “can be faithful adherents of a particular religion” doesn’t address a fundamental point made by religious groups. In the words of the reactionary Sydney Anglican archdiocese, “If communities defined by a religious ethos are required to include persons who do not share the beliefs from which that ethos proceeds, they cease to be communities of that belief.”

That statement is correct, and establishes a high hurdle for anyone to argue that religious schools must be made to retain staff they believe — however fallaciously — don’t fit with the ethos of the particular superstition involved.

Yes, accounts received by the ALRC from teachers of all sexual and gender persuasions of the discriminatory experiences endured at the hands of religious schools run by bigots are harrowing. But in those cases, unlike students, staff can “vote with their feet”, and move to schools run by religious education providers that don’t use bizarre theological justifications to sack staff, or they can move to the much larger public school system. No-one is forced to work for a school run by reactionary nutjobs.

“Excluding LGBTQ+ staff potentially denies students access to the best teachers,” the ALRC concludes — in which case, that is on the principal and school community that prefer a holier but poorer quality teacher.

At a time of dramatic teacher shortages, schools that discriminate can be left to suffer the consequences. Then it will be parents voting with their feet, in exactly the way Fisher doesn’t like.

Is the ALRC call to reform on religious discrimination against teachers valid or based on unsound reasoning? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.