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Religious have no right to judgment on sexual orientation or gender identity

By Robin Banks, Anja Hilkemeijer and Rodney Croome - posted Thursday, 6 December 2018


As Tasmanians, we are bemused, frustrated and deeply concerned by the national debate about whether to ban discrimination against LGBTI students and teachers in faith-based schools.

Such discrimination has been against the law in Tasmania for twenty years.

We are not aware of any problems caused by our enlightened approach.

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No school has complained of its religious freedom being impinged.

The sky hasn't fallen in.

But there has been a noticeable increase in inclusion of LGBTI people in religious school communities.

Students and teachers report to us that they feel safer and more accepted than in the past.

The most pronounced shift has been in Catholic schools, some of which have conducted training for teachers in how to tackle anti-LGBTI prejudice, as well as classroom programs about LGBTI acceptance.

But schools from other denominations have also become more accepting.

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Of course, prejudice can be still be found in religious school communities, as it can across the community.

But at least there is a legislative framework to hold schools to account if and when they have policies and practices based on prejudice.

Tasmania's law also protects LGBTI staff and clients in other religious organisations such as hospitals, charities, support services and welfare agencies.

These protections have a positive impact, not only on LGBTI people, but on policies, practices and productivity across the faith-based service sector.

The law improves faith-based agencies by encouraging them to employ staff on the basis of skill and provide services on the basis of need, instead of focusing on attributes that are irrelevant like sexuality and gender identity.

This is why many faith-based agencies have happily entrenched Tasmania's high legal standards in their day-to-day practice.

For example, in May this year Baptcare in Tasmania won an LGBTI community award for its comprehensive policies and training aimed at ensuring LGBTI staff and clients are included and safe.

We believe a key reason that Tasmania's ban on LGBTI discrimination in religious organisations is uncontroversial is that organisations like Baptcare have recognised the law is good for them.

Given all this, we naturally ask ourselves why there is so much fuss in Canberra about this issue when there is no fuss at all in Hobart.

Surely, if Tasmania's schools and hospitals benefit from higher discrimination standards so will their counterparts interstate?

We are also left wondering why so few commentators seem to be aware of, or interested in citing, theTasmanian precedent.

It's as if Tasmanian only makes the news when we fall short on human rights, not when we lead.

But our biggest concern is that federal legislation designed to give equal protection to LGBTI people in faith-based organisations may actually water-down Tasmania's gold-standard legislation.

There have been worrying public statements from members of both major parties about entrenching a positive right for schools to discriminate against teachers on the grounds of religious "ethos".

Not only could this allow discrimination, for example through the enforcement of gendered dress-codes, it could also mean Tasmanian schools that currently can't discriminate suddenly find themselves able to.

This would be completely unacceptable to us, and to many Tasmanians of faith, so we urge both major parties to reject the idea.

For those federal members concerned about religious schools maintaining their faith and freedom,Tasmania offers a far better solution.

Tasmania's Anti-Discrimination Act allows religious organisations to discriminate on the grounds of religion at the same time as they are not allowed to discriminate on the grounds of sexual orientation, gender identity, intersex status, relationship status or indeed any other attribute including race and disability.

"Religion" in this context refers to the religious affiliation of the person being employed or provided with a service, not the religion of the religious body.

This means, for example, that a Jewish school can turn away a teacher if they are Christian, but not just because they are gay, transgender, Aboriginal or in a wheelchair.

In case there is any confusion, our state law-makers have repeatedly made it clear that discrimination against LGBTI people cannot occur under the cover of religious belief.

Effectively, the state is saying that, while religious freedom matters, homophobia and transphobia cause too much damage to be justified in law as religious values.

Our law sends the clear message that discrimination on the grounds of religion must actually be about religion and nothing else.

We understand not all people of faith will agree there is such a clear-cut boundary between discrimination on the grounds of religion and discrimination on other grounds.

To them we say, the Tasmanian Act at least provides a way for disputes about that boundary to be arbitrated and resolved.

It gives people on both sides a chance to have their say whereas most other discrimination statutes rob LGBTI people in faith organisations of the chance to make their case.

We urge law-makers in Canberra, and in the mainland state capitals, to follow the Tasmanian example.

We urge them to open their eyes to the fact that faith-based schools operate quite well in Tasmania without the right to treat LGBTI unfairly, and so will their counterparts on the mainland.

As David Marr said in a recent interview, "in plucky little Tasmania" God's work can be done without discrimination against LGBTI people.

It's time for the rest of the nation to show some pluck and follow us down the path to greater inclusion.

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About the Authors

Robin Banks is the former Tasmanian Anti-Discrimination Commissioner, a human rights lawyers and a PhD candidate in discrimination law at the University of Tasmania.

Anja Hilkemeijer is a lecturer in law at the University of Tasmania Law School, specialising in human rights and religious freedom.

Rodney Croome is the National Convenor of Australian Marriage Equality and was made a Member of the Order of Australia in 2003 for his gay rights advocacy. He is co-author of Why vs Why: Gay Marriage.

Other articles by these Authors

All articles by Robin Banks
All articles by Anja Hilkemeijer
All articles by Rodney Croome

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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