Guest Blogs

Anna Brown

14 December 2012

Recently the Federal Government released its draft anti-discrimination law that will, for the first time, provide national protections against discrimination on the basis of sexual orientation and gender identity - a significant and overdue reform for our community.

If the Bill passes, Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people will have legal recourse if they are discriminated against in any area of ‘public life’. However, we need to consider carefully the carve outs for religious organisations in this new Bill.

The Human Rights and Anti-Discrimination Bill 2012 gives religious organisations a broad licence to discriminate against those who don’t share their religious beliefs or sexual morality, including LGBTI people but also unmarried parents, de-facto couples and single mothers.

These ‘permanent exceptions’ set religious groups apart from other groups, who need to justify that any differential treatment is fair and reasonable. Most state laws already provide carve outs to religious organisations, with the notable exception of Tasmania, where, significantly, the sky is yet to fall in.

If a hospital refused to employ Liberal voting women, a housing service turned away Aboriginal applicants, or a school condoned the bullying of a child with a disability, we would be appalled. Yet under the law religious hospitals can refuse to employ lesbians, a faith-based homeless shelter can turn away a transgender person and religious schools can expel gay students.

One advance in this Bill is that government funded aged care facilities will not be able to take advantage of the religious exceptions. This is a welcome recognition of the vulnerability of older LGBTI people, consistent with the Government’s recent LGBTI Aged Care Strategy.

However, if we can recognise the unfairness of discrimination against vulnerable LGBTI people in one setting, why not others? LGBTI young people have been identified as vulnerable to depression and suicide. Why not eliminate discrimination in schools, where 80% of bullying takes place? The same could be said for LGBTI people accessing social services, particularly when funded by tax payer dollars, pink or otherwise.

Faith-based organisations deliver many social services. Many of them do not discriminate in practice and a small number query the need for exceptions at all, recognising the damage caused to their ‘brand’. In response to the media furor around its policy on homosexuality earlier in year, the Salvation Army emphasised it did not discriminate against LGBTI people in the delivery of its services, acknowledging the very un-Christian impacts of refusing help to vulnerable clients. My partner has been happily employed at a Catholic hospital, where nuns and a veritable army of gay male nurses contributed to a caring, compassionate (and, yes, camp!) workplace culture. Even a Senior Anglican Archbishop described as “appalling” NSW laws that allow expulsion of gay students.

Moreover, if we are to live with the threat of discrimination by religious organisations, are we not entitled to have knowledge of the risk? The principles of openness and transparency need to be applied to any religious exceptions and organsiations should be required to register their intention to discriminate, not only to forewarn potential victims of discrimination but ensure accountability to the wider community.

In a time where the moral authority of religious institutions is on the decline (a steep, slippery decline in recent times), it’s difficult to see how maintaining religious exceptions reflects contemporary Australian values. Most ordinary Australians would be appalled if they knew the extent to which our human rights framework privileges freedom of religion over and above our fundamental right to be free from discrimination.

Like any human right, freedom of religion is not absolute – it does not automatically trump other rights. It must be balanced against competing interests like the right to equality. The time has come to restore the balance to our anti-discrimination laws.

Anna Brown is the Director of Advocacy & Strategic Litigation at the HRLC and the Convener of the Victorian Gay & Lesbian Rights Lobby.  This blog first appeared in Melbourne Community Voice (Gay News Network) on 27 November 2012 - see link.

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There are a number of federal anti-discrimination laws in Australia and the Australian Government has committed to consolidating these laws into a single Act – a process which many hope will also address gaps in the law and strengthen existing protections. This website is to encourage and facilitate discussions about the consolidation process and help inform and engage the community and organisations with an interest in equality and anti-discrimination laws.

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