Right: Philip Ruddock: the Australian Government accepted fifteen out of twenty recommendations made in his review report.
 Found a word you're not familiar with? Double-click that word to bring up a dictionary reference to it. The dictionary page includes an audio sound file with which to actually hear the word said. |
Arguments in favour of religious schools being able to exclude LGBTI students and teachers
1. Some religious schools consider any non-heterosexual sexual orientation antithetical to their beliefs
The key reason that many Christian schools will not employ teachers who are either in an unmarried heterosexual relationship or an LGBTI relationship is that this is fundamentally contrary to the way of life that they believe the Bible is enjoining all believers to live.
Mark Spencer, executive officer, National Policy, Christian Schools Australia, has explained the centrality of heterosexual marriage to the beliefs of Bible-based Christian schools. Mr Spencer has stated, 'While the beliefs of evangelical, Bible-based Christian schools cover a wide range of matters it is our views on sexuality and sexual conduct that seem to garner the attention of the community. A Biblical view of sexual morality holds that a person's decisions regarding his or her body are physically, spiritually and emotionally inseparable. Such decisions affect a person's ability to live out God's intention for wholeness in relationship to God, to others, and to oneself. Further, the Bible affirms sexual intimacy is reserved for marriage between one man and one woman.'
This position has been further explained by Alex Crain, the editor of Christianity.com. Crain states, 'The historic Christian view according to accurate biblical interpretation is that sex outside of the sacred bonds of male-female marriage is wrong...In God's good design, sex is reserved for a man and a woman who have entered into a legally binding marriage covenant. This kind of life-long commitment forms the basis for a garden-like relationship in which true intimacy can grow into a loving family. Multiply that same model many times over and a healthy society blossoms and thrives.'
Among the verses from the Bible that are said to underpin this traditional Christian view of marriage are: 'God created man in his image; in the divine image he created him; male and female he created them. God blessed them, saying: ''Be fertile and multiply, fill the earth and subdue it''' (Genesis 1: 27-28); 'And the rib that the LORD God had taken from the man he made into a woman and brought her to the man. Then the man said, ''This at last is bone of my bones and flesh of my flesh; she shall be called Woman, because she was taken out of Man.'' Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh' (Genesis 2:21- 24); 'Let marriage be held in honour among all, and let the marriage bed be undefiled, for God will judge the sexually immoral and adulterous' (Hebrews 13:4 ) and 'But because of the temptation to sexual immorality, each man should have his own wife and each woman her own husband'(1 Corinthians 7:2)
Similar textually sanctioned opposition to homosexuality can be found in Islam. The Islamic condemnation of homosexuality is based largely on the Qur'anic story of the Prophet Lut (known as Lot in the Judeo/Christian context). This story is repeated several times in the Qur' an. Each story follows a similar pattern, but the details change from one telling to the next, as we shall see. This story of Lut and his family and the destruction of Sodom and Gomorrah is mentioned in verses 7:80, 11:77, 15:59, 21:71, 26:161, 27:55, 29:26, 37:133, and 54:33.
One text specifies the punishment that might be inflicted. 'The Prophet (peace be upon him) said: If you find anyone doing as Lot's people did, kill the one who does it, and the one to whom it is done (38:4447).'
A 2013 Pew global study of Muslims showed overwhelming disapproval of homosexuality. In only three of the nearly 40 countries surveyed do as many as one-in-ten Muslims say that homosexuality is morally acceptable: Uganda (12 percent), Mozambique (11 percent) and Bangladesh (10 percent).
2. Australian law and international conventions protect religious institutions' right to exclude
Supporters of the right of religious schools to exclude LGBTI teachers and students argue that they are guaranteed this right as part of their freedom of religion.
The legal information site go.to.court.com.au has stated, 'Australia's anti-discrimination regime is enshrined in both federal and state and territory law. At federal level, the legislation that governs anti-discrimination law is the Age Discrimination Act (ADA), the Australian Human Rights Commission Act, the Disability Discrimination Act (DDA), the Sex Discrimination Act (SDA) and the Racial Discrimination Act (RDA). Both the ADA and the SDA contain religious exemptions in relation to acts and practices by 'a body established for religious purposes.' These exemptions apply to all the grounds of discrimination covered by the legislation. In effect, this means that religious bodies are exempt from having to comply with the principles of non-discrimination.'
In effect this guarantees that organisations such as religious schools are entitled under these exemptions to exclude both teachers and students who do not adhere to their belief system. As a piece of state- or territory-based legislation that embodies this principle, the Australian Capital Territory's Discrimination Act 1991states, 'Section 33(2) of the Discrimination Act specifically provides that it is not unlawful to ''discriminate against someone ... in relation to the provision of education ... by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion ... if the [discrimination is] in good faith to avoid injury to the religious susceptibilities of adherents of that religion''.'
Similarly, Article 18 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory, states, 'Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.'
These references to 'community', 'observance', 'practice' and 'teaching' have been read as a protection for religious schools and their right to determine the membership of the communities which they form.
Professor Patrick Parkinson of the University of Sydney has defined the five basic freedoms essential to religious freedom:
Freedom to manifest a religion through religious observance and practice; freedom to appoint people of faith to organisations run by faith communities; freedom to teach and uphold moral standards within faith communities; freedom of conscience to discriminate between right and wrong; and freedom to teach and persuade others.'
The Evangelical Alliance Foundation (EAF) has stated, 'Religious freedom includes the right to form religious organisations and to operate these according to religious values. The right to do so is protected by Article 18... Religious communities do not need general exemption from anti-discrimination laws. They do, however, need the freedom of positive selection -that is, the right to advertise for and select staff (whether professional staff or otherwise) who will honour the beliefs, values and codes of conduct of the faith-based community...
Because faith-based schools are religious communities, they need to have the right at least to employ staff (in both teaching and non-teaching roles) who adhere to the faith, whether or not all such schools would wish to exercise that right. They also need to be able to insist on adherence to the codes of conduct that they reasonably believe are required by the faith.'
3. Parents should be able to send their children to religious schools that reflect their beliefs
Those who defend the right of religious schools to exclude those whose sexual orientation and preferences to not accord with the schools' values argue that this is necessary to protect the right of parents to send their children to the school of their choice.
The Independent Schools Council of Australia has noted that parents' right to send their children to their school of choice has long been supported by Australian governments. The Council notes, ' Since the 1970s Australian governments have supported choice in schooling, providing public funding to non-government schools as a way of ensuring that all schools have at least a minimum level of facilities and resources for all students.'
The Council further argues, 'School choice policies underpin pluralism in society. They allow families with different ethnic, religious and cultural identities to choose a school to best meet the needs of their child and their own values, within a frame of common social values.'
The Council further argues, 'Parents' right to choose the kind of education to be given to their children is included in the Universal Declaration of Human Rights as well as the International Covenant on Economic, Social and Cultural Rights which commits its signatories ''to have respect for the liberty of parents . . . to choose for their children schools, other than those established by public authorities . . . to ensure the religious and moral education of their children in conformity with their own convictions,'' with the proviso that that education must conform to minimum standards laid down by the state.'
Many religious schools maintain that, for them to provide the type of instruction that parents are seeking, their staff must be exemplars of the way of life that the schools' religious beliefs dictate. Mark Spencer, national policy executive officer for Christian Schools Australia, has stated, 'A Biblical view of sexual morality holds that a person's decisions regarding his or her body are physically, spiritually and emotionally inseparable. Such decisions affect a person's ability to live out God's intention for wholeness in relationship to God, to others, and to oneself. Further, the Bible affirms sexual intimacy is reserved for marriage between one man and one woman.'
Many religious schools maintain that their employment practices must ensure that the schools only employ teachers whose personal conduct reflects the religious values of the school.
Mr Spencer argues, 'Every teacher across Victoria will also tell you that there is much more to their role than merely conveying curriculum content. Teachers of maths don't just teach maths - they guide and assist young people through the often difficult and confronting task of growing up. Teachers support the roles of parents in raising these young people, helping them to work out who they are, who they want to be, and, in Christian schools like ours, who they are in relationship to Christ and what He wants for their lives.'
Regarding the schools' right to exclude gay students in order to respect the beliefs of a majority of parents who send their children to these establishments, the Ruddock Review stated, 'To some school communities, cultivating an environment and ethos which conforms to their religious beliefs is of paramount importance...
To the extent that this can be done in the context of appropriate safeguards for the rights and mental health of the child, the panel accepts their right to select, or preference, students who uphold the religious convictions of that school community.'
4. The ability to discriminate when selecting teachers and students preserves the identity of religious schools
Those who defend the right of religious schools to refuse to exclude homosexual students and teachers argue that doing so protects the identity of the school. They argue that a Christian school is made up of a community that adheres to and practises a certain set of beliefs and that if it accepts students or employs teachers who do not either adhere to or practise those beliefs then it has undermined the reason for its existence; it no longer embodies the values that it was set up to promote.
This view has been explained with regard to employment practices by Professor Patrick Parkinson, Academic Dean and Head of School of the University of Queensland's Law School. Professor Parkinson has stated, 'I think the number one issue for the long-term future is the freedom of faith-based organisations to employ staff or prefer to employ staff who hold to the beliefs of that faith. Christian schools should be able to insist that staff adhere to the values of the faith in order to be able to maintain their identity as a Christian school.'
Regarding the right of religious schools to choose staff whose lifestyles reflect the schools' core beliefs, the Religious Review Expert Panel Report acknowledged the frequent submissions they received which argued, 'Spiritual education is not just about teaching content in classes, but also the formation of a community or environment that supports the teachings of their faith. A key theme in these discussions was the need for staff to model the religious and moral convictions of the community and to uphold, or at least not to undermine, the religious ethos of the school. The Panel heard repeatedly that faith is ''caught not taught''.'
The Review Panel concluded, 'Faith-based schools should have some discretion to discriminate in the hiring of teachers and other staff on the basis of religious belief, sexual orientation, gender identity, or marital or relationship status for the reasons outlined above. This enables schools positively to select staff and contractors that adhere to the religion and its practices in order to foster or protect the religious ethos of the school.'
Regarding the right of religious schools to refuse admission to students on the basis of their sexual orientation, the Religious Freedoms Review Expert Panel Report stated, 'To some school communities, cultivating an environment and ethos which conforms to their religious beliefs is of paramount importance. To the extent that this can be done in the context of appropriate safeguards for the rights and mental health of the child, the Panel accepts their right to select, or preference, students who uphold the religious convictions of that school community.'
Christian Schools Australia told the Religious Freedoms Review Expert Panel, 'Faith communities, including Christian schools, must be able to take action that separates individuals from that community when their actions undermine the community. This option remains a necessary response to situations determined by a community to be a threat to that community.'
Explaining this position on his Law and Religion blog, Neil Foster, Associate Professor in Law at the University of Newcastle, stated, 'One of the primary reasons that these schools are established, is so that a religious world-view can be presented to students. Parents send children to a Christian school, for example, assuming that the school will be both teaching and modelling Christian virtues, which include those such as self-control and abstaining from sexual sin.'
Special Minister of State, Alex Hawke, has similarly stated that religious schools should be allowed to discriminate against homosexual students. Asked whether religious schools should be able to reject students as well as teachers on the basis of their sexuality, Mr Hawke replied, 'Absolutely, absolutely. I don't think it's controversial. I don't think it's controversial in Australia that people expect religious schools to teach the practice of their faith and their religion. That's the point of a religious school, and in Australia you have a choice of schooling.'
5. The Ruddock review's recommendations provide greater certainty and care for LGBT+ teachers and students
Supporters of the recommendations made within the Ruddock review regarding religious schools' capacity to exclude LGBT+ teachers and students claim that the recommendations protect both the rights of religious schools and the rights of gay students and teachers.
Those who favour the recommendations note that although they protect the right of religious schools to exclude some staff and students on the basis of their sexual orientation and practices, the recommendation also respect the psychological welfare of students and require that school selection practices be made public so that both potential students and teachers are aware of whether or not a particular religious school would make them welcome.
In an opinion piece published in The Conversation on October 10, 2018, Liam Elphick, Lecturer, Law School, University of Western Australia; Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle; and Anja Hilkemeijer, Lecturer in Law, University of Tasmania collectively argued 'Despite much commentary to the contrary, the recommendations [of the Ruddock review] actually constrain rather than expand federal religious exemptions to LGBT+ protections.'
In an opinion piece published on the ABC on October 15, 2018, Renae Barker, Lecturer at the University of Western Australia's School of Law, and an Honorary Research Fellow at the Centre for Muslim States and Societies, noted, 'Far from expanding these existing rights [of religious schools to discriminate against LGBT+ students and staff], recommendations five and seven [of the Ruddock review]advise constraining and narrowing them. In particular, both recommended the introduction of measures to increase transparency in the way these exemptions are used.'
A requirement that there be full transparency regarding a religious school's acceptance of LGBT+ students and staff helps to protect students and staff from applying to and becoming part of an institution that may subsequently seek to exclude them.
Renae Barker explained further, 'With greater transparency comes greater scrutiny. Under the proposed changes to the law, religious schools who wish to take advantage of the exemptions in the Sex Discrimination Act will be required to have a ''publicly available policy outlining its position in relation to the matter''...
At present no such requirement for transparency exists. As a result, while religious organisations may be making use of an exemption, they also may not be. It is only when a dispute arises, where an individual believes that the exemption applied by the religious organisation was done... unlawfully, that public debate and therefore scrutiny can occur. Equally, where a religious organisation chooses not to make use of an exemption, this too would be a matter of public record. Those who interact with these religious organisations would then have the necessary knowledge to make informed decisions about their continued interactions.'
With regard to the potential exclusion of LGBT+ students, recommendation seven similarly requires transparency and also that in taking any decision to exclude ' The school has regard to the best interests of the child as the primary consideration in its conduct.'
While there is scope to debate how 'the best interests of the child' will be defined and determined, supporters of the Ruddock review's recommendation in this matter stress that it gives primary consideration to the wellbeing of the young student.