Equality: Religious exemptions from non-discrimination law
Under s 83 of the Victorian Equal Opportunity Act, religious schools are allowed to discriminate on the basis of sex-related attributes. While this protects the right to religious freedom (ICCPR art 18), it potentially infringes the rights of LGBTIQ teachers or students to non-discrimination, in situations where schools, due to their religious beliefs, do not wish to employ/admit persons living a homosexual lifestyle. S 83’s limitation of the right to equality will be justified if it has a legitimate aim, and the exemption of religious schools from anti-discrimination provisions is proportionate (there is a rational connection to the aim, and there are no less restrictive measures available).
Case study 2 in this week’s handout raised a situation where two gay students at a Christian school faced expulsion on the basis of their sexuality. Such a measure cannot be justified. The purpose of Christian schooling is to educate students according to a Christian world-view and in a Christian environment. This is a legitimate aim. But allowing openly LGBTIQ students to attend would not hinder the ability of the school to provide this education in any way (there is no rationale connection). Furthermore, the detriment it would cause to LGBTIQ kids, who are at far greater risks of mental illness and self-harm, makes it highly unlikely such measures could be proportionate.
The situation is likely different in respect of teachers. On the one hand it is arguable that allowing religious schools to discriminate in employment of maths, science or English teachers, on the basis of sexual orientation has no rational connection to the aim of providing religious education, since their sexuality and ability to teach subjects such as maths have no relationship. However many religious schools emphasise holistic teaching, where all teachers regardless of subject area are responsible for the spiritual guidance and nurturing of students. Because of teachers’ position of influence in relation to students, particularly in this setting, it is plausible that the privately held beliefs and lifestyles of teachers will influence views of students, regardless of whether the teacher teaches religion or another subject. Thus a religious school may reasonably wish all staff to be capable of representing the tenants of the religious beliefs in good faith. Discrimination based on sexual orientations when it comes to employment in religious schools is thus more likely to satisfy proportionality requirements of rights limitations.