This victory was a long time coming, following decades of active campaigning by LGBTI groups around the country, including the NSW Gay and Lesbian Rights Lobby.
But the victory was also a qualified one. The amendments to the Sex Discrimination Act 1984 established wide-ranging exceptions that allow religious organisations to lawfully discriminate against lesbian, gay, bisexual and trans* people in employment and service delivery – although in two small, but hard-fought, wins, the exceptions do not apply to people accessing aged care services, or to intersex people.
The NSW Anti-Discrimination Act 1977 also provides religious organisations with wide-ranging exceptions to obligations not to discriminate against homosexual or trans* people (noting that the NSW legislation does not cover bisexuality or intersex status).
The net effect of both laws means that, currently, it is lawful for:
Religious schools to discriminate against LGBT teachers and students
Religious-operated hospitals and community services to discriminate against LGBT employees and LGBT people seeking to access these services and
Religious-operated aged care facilities to discriminate against LGBT employees.
This situation – where employees or people accessing services can receive unfair treatment on the basis of something as irrelevant as their sexual orientation or gender identity – is unjust, and can have severe adverse consequences for the individuals concerned.
For example, a gay man who has trained to become a teacher could be lawfully refused work by more than a third of his potential employees, and an even higher proportion if he wants to teach in secondary schools. A lesbian with the best possible qualifications in aged care could nevertheless be refused employment in a significant number of aged care facilities across the country. Bisexual and trans* students could be discriminated against, and even expelled, simply because of their sexual orientation or gender identity.
In none of these circumstances does the person’s status have anything to do with their ability to perform their job, or indeed their right to simply be a student.
As a community, we normally view anti-discrimination law as something that is there to protect people from unjustified discrimination. Sadly, when it comes to religious exceptions, the Commonwealth Sex Discrimination Act and the NSW Anti-Discrimination Act don’t just fail to live up to that ideal – they actively authorise one group in society to discriminate against another.
This authorisation goes far beyond what is necessary to respect freedom of religion. We agree that there should be no restriction on the ability of a religion to undertake its core functions, such as determining its own beliefs, how it conducts religious ceremonies, or who it appoints as ministers of religion or religious office-holders.
But freedom of religion should not extend to allow religious organisations to ignore lawful obligations, such as a requirement not to discriminate, which society imposes in the public sphere in order to protect other people from harm. Healthcare, education, aged care and community services are all firmly, and unarguably, located in the public sphere. Indeed, the vast majority of religious organisations who perform these roles receive taxpayers’ money that enables them to do so. And it is also incontrovertible that discrimination on the basis of sexual orientation or gender identity causes harm.
It is time, then, for governments and political parties at state and federal level to support the repeal of religious exceptions to anti-discrimination legislation. No teacher, doctor, nurse, aged care or community service worker, student or person accessing these services should be discriminated against simply because they are lesbian, gay, bisexual or trans*.
This Mardi Gras season, the NSW Gay and Lesbian Rights Lobby is launching a new campaign, called No Homophobia, No Exceptions, calling for the removal of religious exceptions to anti-discrimination protections.
As part of this campaign, we encourage you to sign our petition to the Commonwealth Attorney-General Senator George Brandis and NSW Attorney-General Greg Smith (here, or at our website: www.glrl.org.au).
You can also drop by our stall at Fair Day this Sunday, February 9, to sign letters and find out more about how you can help the campaign. And keep an eye out for our Parade float, calling for our politicians to put a “Stop!” to these unjust laws.
Over the past 40 years, the LGBTI movement has come a long way, working towards the elimination of homophobia, biphobia, transphobia and anti-intersex discrimination. And we have had remarkable success, with reforms to relationship recognition (although obviously not yet marriage equality), reproductive rights and hopefully soon the removal of the homosexual advance defence in NSW.
But the ongoing operation of religious exceptions to anti-discrimination law, which in effect says that some instances of homophobia, biphobia and transphobia are legitimate, remains a significant barrier to full LGBT equality in Australia. In 2014, we believe it is time for this barrier to be removed.
Please support our No Homophobia, No Exceptions campaign as we work to make this a reality.