Religious freedom will be suffocated if ALP elected

It is a sad reality that in Australian law there is an absence of strong protections for freedom of belief. Indeed, as some leading lawyers have commented, religious freedom has been reduced to tenuous exemptions in anti-discrimination laws introduced since the 1980s.

Now, key exemptions in the federal Sex Discrimination Act (SDA), that allowed faith-based schools to enrol and employ people according to their religious beliefs, are under serious threat.

The Labor Party and the Greens are committed to removing these exemptions in the next Parliament.

The SDA was originally passed in 1984 to protect women from discrimination, particularly in the workplace. It meant, for example, that no longer could a woman be sacked because she became pregnant.

However, in 2013, the federal Labor government fundamentally changed the Act to make gender identity and sexual orientation protected attributes.

This means that a person who identities as a member of the sex opposite to his or her biological sex, or as having a non-binary gender identity such as pangender, gender queer, androgynous, or some other self-defined identity, has certain defined protections under the Act.

As the SDA covers state schools, state governments fell into line by implementing wide-ranging policies that oblige principals and teachers to allow a boy, who has only to self-identify as female to be legally recognised as a girl, to access girls' toilets, showers, change rooms, dormitories, sport and camps.

A NSW Department of Education Legal Issues Bulletin says that the risks in these policies are "high".

In dot points, it requires that: "… Doors [be] provided to change-room cubicles of their identified gender. Student must change in cubicle. Staff to monitor length of time in change room. Staff and student to report any incidents in the change room to Principal … Zero tolerance to 'skylarking' in change rooms …"

The South Australian policy explicitly warns principals and teachers that they may "breach anti-discrimination legislation" if they fail to provide transgender students with access to appropriate toilet and change facilities, saying school autho­rities risk discrimination charges for failure to comply with these policies. They risk legal penalties and possible loss of professional accreditation and employment.

'Safe Schools'

The 2013 changes to the SDA were also behind an $8 million grant by the then Labor government to expand the controversial Safe Schools Coalition's sexually charged anti-bullying program. In turn, Safe Schools justified promoting gender fluidity to students based on the fact that the SDA gave legal recognition to a person's gender identity, in place of their sex.

Faith-based schools were not obliged to adopt such policies and programs as the SDA granted exemptions to religious organisations.

These state policies conflict with the belief of most people that humans are either male or female, and that a person cannot biologically change their sex. The policies will certainly conflict with many faith-based schools who for moral and safety reasons will oppose allowing boys who identify as girls into private female spaces.

Labor means Greens

If Labor wins the election, it will not only control the House of Representatives, but will likely have enough support from the Greens, minority parties and independents in the Senate to remove the exemptions for faith-based schools from the Act. In which case, it is likely that the same state governments' policies will be imposed on religious schools.

Last year, Liberal Prime Minister Scott Morrison supported removal of exemptions, but has since backtracked. He has palmed off the issue to the Australian Law Reform Commission to report after the election.

Questions that need to be asked

Critics have asked, what about the rights of students to privacy in toilets, showers and change rooms? What about the right of girls to fair play in sports?

What about the rights of parents to expect a high-level duty of care for their children and of their "prior right to choose the kind of education that shall be given to their children", as recognised in the Universal Declaration of Human Rights? What about the liberty of parents "to ensure the religious and moral education of their children in conformity with their own convictions", as recognised in the International Covenant on Civil and Political Rights?

What about threats to the future employment of teachers and principals who refuse to comply with such policies?

What about the right of students, parents and teachers in faith-based schools to hold and manifest their belief, whether founded in biological science or in religious scriptures, that humans are immutably male or female?

What about the right of schools to maintain their religious ethos by refusing employment and enrolment to activists wanting to impose such policies on the school?

There has been little public debate over the wide-ranging consequences of removing exemptions for faith based schools in the Sex Discrimination Act, yet those changes are undermining Australia's tolerant democracy and pose a serious threat to freedom of religion, belief and speech.