A great privilege
An exemption to a piece of legislation is a great privilege: the beneficiary of an exemption is allowed to behave in a manner that for everyone else is illegal. Consequently there is a great obligation on those exercising an exemption to show that it is being used fairly and deservedly. Where an exemption is granted, society has an interest in ensuring that its beneficiaries are not needlessly above the law.
Every Australian state and territory has an anti-discrimination law proscribing discrimination on the grounds of sexuality. In every state except Tasmania, some form of exemption from the legislation is granted to religious bodies. As a matter of course, the process of using an exemption should include demonstrating that its use is justified.
For example, a religious school that discriminates against sexual minorities by refusing them employment is modelling behaviour to the minors in its care which is illegal in almost every other social context. Consequently the school is doing its students a disservice if it fails to demonstrate that the exemption is being applied fairly and transparently. Lest they transfer the use of exemptions to other circumstances, students need to understand the narrow grounds within which such discrimination is permitted.
Nursing homes commonly filter out non-heterosexual staff using a requirement to be a practising member of a particular religion as a condition of employment. Homes that do this have an obligation to their residents to demonstrate that this filtering does not result in a loss of quality of care.
Unfortunately, it is extremely difficult to find evidence of such an attitude towards the clients of religious service providers. In fact, rather than being open, most religious bodies’ use of the exemptions to anti-discrimination laws is arbitrary and secretive.
Today there are many homosexual individuals working effectively in religious organisations and schools, representing the values of their employers and displaying the highest standards of professionalism. Daily, these individuals are proving that they possess the required values and skills for their employment, yet because of their sexuality, they can be dismissed at any time. In contrast to their heterosexual colleagues, their professional life is constantly under threat.
In many of these cases, the individuals’ sexuality is also known to their superiors, who, recognising that they are valuable members of staff, “turn a blind eye”. Yet something as arbitrary as a change of superior, or a casual remark by a colleague or student can result in loss of livelihood for these individuals, simply on the grounds of their sexuality.
Is this arbitrariness inadvertent? Does it come about because homosexual and lesbian employees are relatively indistinguishable from their colleagues? No, it doesn’t. In their recent submission to the Australian Human Rights Commission’s Freedom of Religion and Belief in the 21st century project, the WA Branch of the Christian Democratic Party pleads for the continuation of the right to exclude sexual minorities “if they so choose”. This rare instance of frankness shows that the arbitrary use of the exemptions is as purposeful as it is cruel:
… the law must continue to allow them to ban the employment or other forms of inclusion of homosexual and lesbian people in their community, if they so choose (page 11).
By continuing to employ gays and lesbians, religious bodies are demonstrating that the exemptions to anti-discrimination protections are not needed. If they wish to retain the exemptions, then they must apply them consistently or not at all. Applying them arbitrarily is a cruel imposition on loyal, professional employees.
Lack of transparency
A large problem here is the fact that the use of exemptions to exclude homosexuals from employment with religious bodies is not stated. Even though in many states such a text might be legally permissible, one never reads a job advertisement stating heterosexuality as a job requirement. The exclusion is always embedded in other language.
No job advertisement or position description states that the applicant must be heterosexual, or that entering into a homosexual relationship during employment will result in dismissal. Nor do they state the underlying assumption that homosexuals are incapable of the values associated with Christian belief. The use of the exemption assumes that every homosexual will be offensive to the values of the religious body exercising it. It is not stated: rather, a requirement for religious affiliation (see below) is provided as code for “homosexuals need not apply”.
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