An end to the right to discriminate

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.

Arbitrariness

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”.

The above quote from the Christian Democratic Party (WA Branch) confirms that the exemptions are used to exclude sexual minorities, and among the submissions to the Freedom of Religion and Belief in the 21st century project are many others arguing for the continuation of the exemptions, specifically so that gays and lesbians can be excluded; so that religious bodies “if they so choose”, can continue to discriminate against homosexuals while pretending to do something completely different. In South Australia, amendments currently before State Parliament will require organisations that discriminate against homosexuals and lesbians to declare publicly that it is their policy to do so. There too, according to Legislative Council member Ann Bressington, Christian organisations are lobbying for the right to continue discriminating in secret.

Absurd extremes

In fact, the use of the exemptions for religious bodies is being carried to ridiculous extremes. In January, a job advertisement for physiotherapists (PDF 480KB) with Anglican Retirement Villages carried the strap line “The embracing of Christian values is an expectation of all staff”. No indication was given of how the work of a physiotherapist could conform to the doctrines of the Anglicanism, or how Anglican religious susceptibilities could be vulnerable to injury by a non-Anglican, or non-heterosexual physiotherapist. Another advertisement for a Microsoft Systems Technician in a Queensland Christian school (PDF 252KB) required a reference from a minister of religion, attesting that the applicant was a committed Christian. The relevant exemption to the Queensland Anti-Discrimination Act 1991 applies in relation to work “in accordance with the doctrine of the religion concerned,” but the advertisement provides no guidance about how this could possibly relate to technical work with computers.

Tasmanian experience

The exceptions and exemptions included in the Tasmanian Anti-Discrimination Act 1998 do not relate to sexual orientation. In Tasmania, the sexual orientation of a job applicant is deemed to be irrelevant, regardless of the employer’s views. Selection for employment in both religious and non-religious organisations is based on skills, experiences and attitudes demonstrated by qualifications, experience and references.

The Act provides for an organisation experiencing difficulty meeting its requirements to apply for an exemption. According to the Tasmanian Anti-Discrimination Commission’s website there are no currently granted exemptions related to sexual orientation. In spite of this, religious Tasmanians are successfully pursuing their belief practices: the conduct of religion in Tasmania has not collapsed, and fleets of Mayflowers have not been seen crossing Bass Strait. Indeed, with ten years’ experience, Tasmania provides clear proof that discrimination against sexual minorities is not necessary in order to secure religious freedom.

A conditional freedom

Australians do not have an unconditional right to religious freedom. Article 116 of the Australian Constitution constrains the Commonwealth from establishing a state religion, or giving preference to one religion over another. It does not require or enable the Commonwealth to guarantee unrestrained freedom of belief, and the High Court has borne this out several times, notably in Adelaide Company of Jehovah's Witnesses, Inc. v The Commonwealth of Australia (1943).

The International Covenant on Civil and Political Rights (CCPR), which Australia has ratified, states in Article 18.3:

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

CCPR allows circumscription of religious freedom to protect the safety, health and freedom of others. Neither CCPR nor the Australian Constitution privileges religious belief over the rights and freedoms of other groups in society. Neither instrument obliges the state to protect members of religious organisations from being offended, particularly should that protection come at others’ cost.

In good faith, Australian states have attempted to accommodate the sensibilities of religious bodies with exemptions to their anti-discrimination laws. Unfortunately many religious bodies have not managed their use of the exemptions well - rather, they have applied them arbitrarily and secretively. In Tasmania it has been shown that religious organisations can thrive in an environment that values both religious and sexual minorities.

Granting an exemption to a law bestows a great privilege, and a heavy responsibility on the beneficiary of that exemption. In failing to responsibly manage the exemptions available to them, many religious organisations have shown themselves unworthy of the privilege. At the same time, they’ve proven that the current exemptions to discrimination laws are indeed unnecessary for the free practice of religion in this country.

It’s time for the exemptions to go.