Why the Religious Discrimination Bill 2021 is still dangerous for the Rainbow Community

It’s been a traumatising few weeks watching the debate over the Religious Discrimination Bill occur in Federal Parliament and in all forms of media. Mind Australia, who run a program specialising in counselling LGBTIQ+ people experiencing suicidal thoughts noted that “When we have conversations at a national level around whether LGBTIQ+ people have the same rights as others to attend schools and access particular services, it has a hugely negative impact”. Tragically we understand Mind Australia received more referrals in the two weeks of debate than it did in the previous two months combined.

Although the bill has not yet become law, and has not been presented to the Senate, it still has the support of both major parties. Its (temporary) demise was hailed as a “victory” by many in the media and in politics for the supposed protection of gay and trans students at Schools across Australia. However, beneath the headlines, a much more catastrophic truth remains – the bill that passed the House of Representatives will allow much wider and more devastating discrimination against the Rainbow Community than what politicians have admitted.

In introducing the bill to Parliament back in 2021 the Prime Minister, Scott Morrison emphasised that “nothing in this bill allows for any form of discrimination against a student on the basis of their sexuality or gender identity…Such discrimination has no place in our education system”. Sadly, that statement is simply not true. 

We stand with advocates and human rights lawyers who are pushing against the Bill. We note Amnesty International has said that “If passed, the Bill would put LGBTQ+ people, women and people with disability at risk of harmful and discriminatory statements, as well as compromise access to safe, inclusive workplaces and schools and judgement free-health care.” The Human Rights Law Centre has also said that the bill “goes far beyond the important goal of protecting people of faith from discrimination and in doing so, it fails to fairly balance the right to equality with the freedom of religion”. Even our friends at Equality Australia have called for the bill to be binned. 

How Did We Get Here?

As a Rainbow Community, we have a lived understanding of the impact of discrimination and support the principle that all people, including people of faith, should be protected from discrimination. 

Unfortunately, the bill does a lot more than protect people of faith from discrimination. In fact, the bill empowers people of faith to discriminate against us. Specifically, excuses conduct by a religious body that would otherwise be discriminatory as long as it is done in good faith. That strengthens the existing exemption that religious schools enjoy under s38(3) of the Sex Discrimination Act to discriminate on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy. 

When introducing the Religious Discrimination Bill, the government promised to remove that last exemption, but only in relation to sexual orientation and not for gender identity. Thankfully the House of Representatives held firm. The five Liberals who crossed the floor to vote the exemption out were no doubt aware that the people in their electorates wouldn’t support sacrificing trans students to remove the exemption for gay students. The bill passed the lower house but it voted to remove the Sex Discrimination Act exemption completely. 

This whole political debacle has overshadowed the much bigger problem - even if religious school discrimination exemptions are eventually removed the issue for the Rainbow Community continues. The Religious Discrimination Bill sets up a scheme that will lead to even more entrenched discrimination by stealth.

How Do We Solve This?

Freedom from discrimination for one group needs to be balanced with the freedoms of everyone else. Put simply, in the area of human rights “your right to swing your arms freely ends where my nose begins”. As a community we don’t want to stop people of faith swinging their arms, but we do want them to avoid colliding with our noses. This bill allows people of faith to do just that – to have our right to an education overridden by their religious faith.

Here is how the swinging arms of religious schools will be allowed to collide with our noses: A school’s discriminatory actions will be lawful if they are found to be “engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion” To assist with the question of what is in accordance with those doctrines the bill allows a school to publish a “Statement of Belief” setting out its religious views. Those statement are specifically excluded from being considered discriminatory unless they are “malicious” or they are a statement that a “reasonable person would consider would threaten, intimidate, harass or vilify a person or group”. A “Statement of Belief” would need to be very badly worded to fall foul of that exception.

In essence the statements of belief allow schools to say, “this is what we believe, we can act in accordance with that belief and discriminate with impunity”. Even where schools expressly say that they have no intention of discriminating against gay or trans students the use of these “Statements of Belief” communicates to the whole school community that the school does not support any member of the LGBTIQ+ community which in effect allows discrimination. Refusal to ‘sign up’ to the statement might be used as the basis for expulsion rather than the student’s ‘attributes’ in order to try and avoid the appearance of direct discrimination. 

Whilst the bill in its current form goes some way to addressing concerns over discrimination against LGBTIQ+ peoples in educational settings (as outlined above), even with the amendments passed by the Labor Party, it still allows for discrimination against LGBTIQ+ people (especially trans people). The changes made to the bill don’t prevent discrimination occurring outside of the school, such as in healthcare and employment.

In healthcare for instance, the bill makes it harder for employers to impose rules which require health practitioners to treat all patients despite their personal religious objections. A health practitioner (including Doctors, Nurses, Psychologists, even Pharmacists) will be able to express polite and well-meaning, yet harmful, religious views in a consultation setting – putting their personal views above their professional and ethical duties to treat all patients. 

This will make life incredibly hard for transgender and gender diverse people. It is already hard enough seeking treatment in Australia for gender dysphoria as there are only a small handful of doctors qualified to prescribe hormones and diagnose gender dysphoria. Not only would this be effected, but also simply attending the doctor for a common cold or flu, or a repeat prescription could become a minefield as a religious doctor would not be prevented from for saying that being gay is a sin, or that being trans means that god doesn’t love you etc. 

We are heartened to see the Religious Discrimination Bill in its current form withdrawn (albeit temporality). If it reappears and has the support of both major parties our community, along with other minority communities, will be even more under threat. Unfortunately, although this battle over the bill has been suspended (for now), the ongoing fight for equality and freedom from discrimination is far from over.  

If this article, or the debate over “religious freedom” has raised any issues for you, please reach out to QLife Get Help (qlife.org.au) or Lifeline on 13 11 14 for support.