ALRC Recommends Repeal Of Law That Allows Australia’s Religious Schools To Expel LGBT Students

Australian Law Reform Commission in a landmark report on Thursday recommended the removal of exemptions given to religious schools that allow them to expel students and sack teachers for being LGBTQI. 

In November 2022, the Labor government tasked the ALRC to conduct an inquiry into Australia’s anti-discrimination protections for LGBTQI students and staff in faith-based schools. 

The ALRC’s report, including 11 recommendations, was tabled in Parliament on Thursday. 

In the report, Supreme Court Justice Stephen Rothman, who heads the commission, recommended the repeal of section 38 of the Sex Discrimination Act. The law allows faith-based educational institutions to discriminate against students, teachers and other staff based on their sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. 

 ‘Time To Act’

LGBTQI advocates including out gay Olympian Ian Thorpe called on Prime Minister Anthony Albanese to implement the ALRC’s recommendations without any delay. 

“If the Prime Minister and Government want to make good on their election promise to us, they can act on the recommendations in this report right now to end discrimination against students and staff in religious schools,” Thorpe said in a statement.

“Not acting will be a blow to our community and to all the people waiting for better protections including women, people who are divorced or in de facto relationships, and people of faith,” said Thorpe. 

Albanese had recently told the caucus that he would go ahead with changes to Australia’s religious discrimination laws only with bipartisan support from Opposition leader Peter Dutton. The PM’s stand was criticised by LGBTQI advocates who accused Albanese of “selling out”. 

Protect LGBT Students And Teachers

“Every day we delay these reforms there will be more students who are robbed of their chance to become a school prefect or take their partner to the formal, and there will be more teachers who are fired or told they are no longer fit for any promotions,” Equality Australia CEO Anna Brown said in a statement. 

According to Brown, the community has been raising the demand to protect LGBTQI students and staff for over a decade. 

“The ALRC has carefully evaluated the law and options for reform, considered a vast number of submissions and has produced balanced and sensible recommendations to guide reform,” Brown said.

A Discriminatory Law

Australia’s anti-discrimination laws provide special exemptions to faith-based schools and institutions run by religious organisations.

Under Section 38 of the Sex Discrimination Act, religious educational institutions can discriminate against students and staff based on their sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. Section 23 allows religious institutions to discriminate in accommodation. Faith-based organisations are also provided special exemptions under the Fair Work Act, that allow them to discriminate in matters of employment.

Attorney General Mark Dreyfus in November 2022 appointed NSW Supreme Court judge Justice Stephen Rothman to conduct the inquiry. In February 2023, Christian Schools pulled out of the consultation claiming they had lost faith in the ALRC.

In its report, besides recommending the removal of Section 38 of the Sex Discrimination Act, ALRC said that education institutions should be allowed to rely on sections 23 and 37 of the Act. The ALRC has also recommended the protection of “personal associates” of LGBTQI persons.

Equality Australia said that this “would protect from discrimination the children of LGBTQ+ parents, divorced parents or de facto couples, who were discriminated against because their parents were LGBTQ+, divorced or unmarried.” ALRC has further recommended the government to keep provisions that allow religious schools to preference people of their own faith while recruiting staff. The ALRC has also recommended changes to the Fair Work Act.