Recently, RJ Miles shared with us the discrimination she experienced as a gay teacher in a religious school. Now Paloma Cole and Chris Peppel from Maurice Blackburn’s PRIDE Network examine the legal aspects of such discrimination. The good news is – such discrimination is not tolerated under Queensland law.
On the surface, Australian anti-discrimination laws safeguard queer, trans and non-binary adults and children from discrimination while working and receiving education.
But in reality, our anti-discrimination laws provide a legal shield for select institutions to remove LGBTQI+ staff and students from classrooms.
The Sex Discrimination Act prohibits discrimination on the basis of gender, gender identity, marital status and sexual orientation.
However, it also provides exemptions for religious institutions, including schools established for religious purposes, which allow them to discriminate against employees and students whose gender identity or sexual orientation is in conflict with the religion’s “doctrines, tenets, beliefs or teachings”.
This means that it is perfectly lawful for a religious school to expel a transgender student, or fire a teacher who comes out as gay, if the school does so in “good faith” to avoid injury to what are described as the “religious susceptibilities” of believers of that religion.
These exemptions are justified on the basis that they promote religious freedom.
But this “religious freedom” is at the cost of LGBTQI+ teachers’ and students’ rights to be themselves.
There are many stories of how this manifests in the lives of ordinary people across Australia.
In one instance, when a religious school found out a student was gay, he was only allowed to finish his school year if he kept his sexuality a secret and attended mandatory counselling.
Another LGBTQI+ student who confided in a teacher was subsequently “outed” by her principal to her parents.
When her parents expressed support for their daughter, the student was expelled as her ‘values’ did not align with those of the school.
In 2017, a Perth teacher was fired after the school discovered he was gay. The school claimed there was an “inconsistency with his beliefs on sexuality and the college’s beliefs”.
Despite calls by LGBTQI+ rights groups to change these archaic laws, the recently leaked “religious freedom review” conducted by government backbencher Phillip Ruddock has recommended the exemptions for religious schools be strengthened, not abolished.
The loopholes which already exist in our discrimination laws have long been used to target, unfairly discriminate against, and disadvantage the LGBTQI+ community.
We know LGBTQI+ youth are more susceptible to poor mental health than their heterosexual counterparts.
It is staggering that we allow these exemptions to continue in a school setting. The exemptions which currently exist undermine an individual’s right to live, be educated and work free from discrimination.
They should be abolished, not strengthened.
If these laws are to remain, we should be advocating that any organisation which seeks to exclude others in the name religious values should not be entitled to receive taxpayer funding – money which should be reserved for the benefit and welfare of the entire community.
The good news is that in Queensland at least, our anti-discrimination legislation doesn’t provide an exemption for religious schools and employers.
That means that teachers and students can’t be discriminated against when attending a religious school in Queensland.
If you have experienced discrimination, you should seek legal advice quickly – you only have a year to make a complaint to the Anti-Discrimination Commission Queensland.
And there may be other legal avenues available to you as well – for example a teacher who is fired for being trans may be able to make an unfair dismissal application.
Generally speaking, you should always seek advice before taking a significant step such as resigning or withdrawing from school – doing these things can significantly reduce your legal rights and options.
With society’s support for the LGBTQI+ community rapidly evolving in recent years, our anti-discrimination laws must keep pace.
The law is a lasting social institution that must reflect the values of the society it protects and governs.
By campaigning for change, we can work towards a system that ensures everyone is treated fairly and equally under the law.
LGBTQI+ staff and students must be allowed to bring their whole selves to work and school.
We know it can work thanks to Queensland’s example – the federal government and other states should follow, and quickly.
Paloma Cole is a lawyer in Maurice Blackburn’s employment and industrial law service in Brisbane. She regularly represents clients who have been discriminated against because of their gender, sexual orientation or gender identity. Chris Peppel is a graduate lawyer in Maurice Blackburn’s personal injury practice in Cairns. He assists a range of clients, including those who have suffered psychiatric injuries as a result of bullying, harassment and discrimination at work. Paloma and Chris head up Maurice Blackburn’s PRIDE Network in Queensland and are passionate about supporting, representing and advocating for their queer community.