What is the religious discrimination debate about?

The debate over LGBT staff and students in religious schools is back this week.

At the last election, Labor promised to introduce legal protections for religious beliefs, but at the same time to protect LGBT staff and students from discrimination.

It’s a variation of the same combination the Morrison government sought to legislate, but abandoned after a backbench rebellion.

Religious protections

The prospect of overhauling the nation’s religious protections hangs with the Coalition, after Prime Minster Anthony Albanese told colleagues he would only proceed if he could guarantee there would be bipartisan support.

The Albanese government has been quietly progressing the issue. It asked the Australian Law Reform Commission (ALRC) to draw up a proposal and consult with stakeholders. Its final report is expected tomorrow.

But seeking to get ahead of an ugly debate, Prime Minister Anthony Albanese said the government would not reveal the details of its own plans until it first had the Coalition on board.

“If there is not agreement, then now is not the time to have a divisive debate, especially with the rise of anti-Semitism and Islamophobia,” he told colleagues.

Opposition Leader Peter Dutton accused the PM of using the Coalition as an excuse to ditch an idea “he doesn’t want to get anywhere near”.

It’s difficult to follow a debate that, at least so far, isn’t actually about a specific proposal. But what do we know?

Competing ideas of discrimination

The government’s intention is to do two things at once: provide a legal protection for religious beliefs, but also strengthen legal protections for the LGBT community.

This is a complicated undertaking because the two protections can conflict with one another.

Some religious organisations want the right to discriminate on the basis of sexuality and gender identity within their own institutions, and see this as an expression of their religious belief.

So when the Turnbull government first agreed to look into a possible Religious Discrimination Act in 2017, to please conservative colleagues unhappy with the legalisation of same-sex marriage, it realised this could perversely lead to more discrimination against LGBT people.

The main concern was how this would interact with the Sex Discrimination Act.

That act, introduced in 1984, protects Australians from discrimination on the basis of gender, marital status and other characteristics. Since 2013, this has included sexuality and gender identity.

But religious schools were given an exemption in 1984, which for example allows them to operate single-sex schools in accordance with their beliefs. This could also be applied to sexuality and gender identity.

If a Religious Discrimination Act was enacted, strengthening the protection of religious beliefs, without addressing this exemption, there was a concern this could give them additional legal scope to expel or deny entry to LGBT students, and to fire or refuse to hire LGBT teachers.

Mark Spencer, policy director at Christian Schools Australia, said the expulsion of LGBT students “doesn’t happen, never has and we don’t want it to”.

But the Morrison government saw case to act, and added protections for LGBT staff and students to its plans. But tension within the Coalition emerged over whether transgender students should be protected.

In a late-night session of parliament, several Coalition backbenchers crossed the floor in the House of Reps to vote with Labor and crossbenchers to include transgender students. The Morrison government then shelved its own bill.

Labor revisits the issue

In the first year of the Albanese government, Attorney-General Mark Dreyfus asked the independent ALRC to start from scratch and consider how best to deal with the LGBT staff and students issue.

The idea was that this would inform the government’s own move to do so, which would in turn clear the way for a Religious Discrimination Act, free from those unintended consequences.

Early in 2023, the ALRC released its draft proposal.

For students, it suggested schools should not be able to expel or deny enrolment to LGBT students or the students of LGBT parents, but that religious schools should still be able to teach their views on sexuality and restrict participation in religious ceremonies.

It suggested schools should also have to accommodate uniform adjustments for transgender students and must not deny any benefit to LGBT students, such as access to school captaincy.

For staff, the ALRC suggested religious schools should not be able to refuse to hire a staff member because of sexuality or gender identity, but should be able to preference staff who share a school’s religious beliefs if this would be core to their role.

It suggested religious schools should be able to require staff to teach the school’s views on sexual morality, but allow them to provide objective information about alternative viewpoints if they wish.

Several religious groups were unhappy with this proposal. A submission from the Presbyterian Church of Australia said it “incorrectly assumes that a person can hold to the Christian faith and seek to live as Christian without regard to their sexual relationships or the gender identity they express”.

LGBT activist organisations were more supportive of the proposal but did not support the protection for schools to teach their own sexual morality. The Australian Education Union said this would “codify bigotry”.

Will this actually happen?

Tomorrow’s final report from the ALRC will reflect its updated proposal in light of all this feedback.

It would then be up to the government to consider how to proceed. The PM has said the government is already working up two bills, but the Coalition does not yet know its plans. The early prospects for bipartisanship do not appear strong, raising the prospect the government might abandon its commitment.

Liberals say it’s ‘very difficult’ to back unseen religious discrimination laws

The opposition says it wants to see the legislation to enshrine new protections for LGBT students and teachers before making any commitment, after the government said it would prefer to abandon the reforms than trigger a fractious debate.

And the complexity over schools is not the only issue. Next comes the question of exactly what a Religious Discrimination Act should look like, which raises its own complicated questions.

For example, how would a Religious Discrimination Act interact with freedom of speech? Where would the line be drawn between protecting beliefs, and protecting the rights of others to criticise those beliefs?

On Sunday, shadow Attorney-General Michaelia Cash alluded to this issue when she warned the government of considering a “blasphemy law”.

A spokesperson for Mr Dreyfus flatly denied the government planned anything approaching this, though it does want anti-vilification rules. But the Coalition’s language points to the challenges ahead in finding consensus.

Meanwhile, the Greens and other crossbenchers have suggested the government seek consensus with them instead. The government could certainly pass the laws this way without the Coalition, and may even win the support of a few Coalition backbenchers. But this would lead to the type of protracted debate the PM has said he wants to avoid.