Advocates Fear Australia’s Religious Discrimination Bill Will Harm LGBTQ People

When the Australian Parliament resumes session next week, it will be taking up the Religious Discrimination Bill, which critics say may effectively sanction discrimination against the LGBTQ community and other minority groups.

The purpose of the Religious Discrimination Bill is to prohibit discrimination on the basis of religion, just as current anti-discrimination laws protect other classes from discrimination. The bill “prohibits discrimination in certain areas of public life on the ground of religious belief or activity.” The general public agrees that religion should be protected against direct discrimination, or treating people less favorably on the basis of their religion. The bill is controversial, however, because it also prohibits indirect discrimination, where “an apparently neutral condition has the effect of disadvantaging people based on religion.”

Religious groups, including the Australian Catholic Bishops Conference, submitted memos on the bill to the attorney-general supporting the acknowledgement of the right to freedom of religion, but warning the bill does not go far enough. In the bill’s current form, churches and religious organizations’ actions will not be discriminatory so long as the actions “may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs, or teachings of their religion.” The bishops conference and others would like to see this provision extended to any business or organization with a religious mission and ethos. Church-run hospitals, aged care providers, religious camps, and publishing companies are not currently covered by the provision.

The Parliament will begin to consider the bill in the next few weeks. The right of religious schools to fire LGBTQ employees is currently under review by the Australian Law Reform Commission, but section 10 of the Religious Discrimination Bill says that a religious body “does not discriminate against a person under this Act” by conduct which “may reasonably be regarded” as in line with that religion.

Though the bill does not directly address the hiring and firing of LGBTQ employees in religious organizations or the expulsion of LGBTQ students from religious schools, critics say the exemption from discrimination law for religious organizations acting in accordance with their doctrines will allow Catholic and other religious organizations to discriminate against LGBTQ people.

In fact, while claiming that Christians do not have any “special vendetta” against the LGBTQ community, the Australian Christian Lobby backed calls by the bishops conference for greater powers to fire employees who do not conform to a “Christian sexual ethic.”

Religious groups insist they want the bill to be a shield against discrimination rather than a sword with which to discriminate. They point to a clause in the bill that states the religious exemption from discrimination would not protect religious statements or acts that are “malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offence.”

But even this clause of the bill is being debated, with religious organizations fearing some religious statements or acts could be wrongly interpreted as malicious or vilifying. Conversely, others argue that the harassment or vilification bars are too high in this version of the bill.

LGBTQ advocates rightly point out that this bill–intended to protect against discrimination goes well beyond other discrimination laws, and in effect “weakens existing protections for LGBTIQ+ people, women, people with disabilities and those from diverse racial and cultural backgrounds.”

Ultimately, as it stands now, the Religious Discrimination Bill is deeply flawed. In its current form, the bill supersedes existing anti-discrimination laws, amounting to a privileging of religion rather than protecting against discrimination based on religion. Since the bill explicitly ensures that statements of belief retain priority over other discrimination laws (an override provision not included in any other group’s discrimination law), it removes longstanding protections for vulnerable, protected classes.

Australia’s Sex Discrimination Act of 1984, which protects LGBTQ people from discrimination based on their sexual orientation and gender identity, already includes a provision that some religious acts are not discrimination.  Australian legal researchers Liam Elphick and Alice Taylor argue:

“This provision requires the religious body’s act must ‘conform to’ the beliefs of the religion or be ‘necessary’ to avoid injury to religious sensibilities. That test is much harder to satisfy than the Religious Discrimination Bill’s test of whether conduct ‘may reasonably be regarded’ as being in accordance with religious beliefs.”

If the Australian Catholic Bishops Conference truly seeks a shield from discrimination, it should recommend the adoption of this same language found in the Sex Discrimination Act. If not, it may just be that the Church receives a mighty new sword to discriminate against the LGBTQ community.

Parliament has an exceptionally important task to consider this bill while refusing to reverse or weaken existing protections for vulnerable populations and explicitly continuing to protect the LGBTQ community from discrimination.

—Kevin Molloy, New Ways Ministry, October 14, 2019