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How can SA balance fairness and freedom of religious beliefs?

Opinion

Recommended changes to SA’s anti-discrimination laws seek to prevent students and employees being unfairly treated due to their sexual orientation or gender identity, while also protecting the rights of religious bodies, writes researcher Sarah Moulds.

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Fairness and equality of opportunity are vital qualities that define our South Australian community. Also central is the idea that families should be free to bring up and educate their children in accordance with their religious values and beliefs.

These important rights dominated the more than 350 submissions and comments received by the South Australian Law Reform Institute in response to its recent consultation on the SA Equal Opportunity Act 1984. This consultation formed part of the Institute’s broader reference on removing discrimination on the grounds of sexual orientation, gender, gender identity and intersex status.

The Institute, an independent body based at the University of Adelaide’s Law School, focused its consultation on the exceptions that currently exist to the legal rules protecting people from unlawful discrimination in South Australia.

Currently, the Equal Opportunity Act contains a general rule that it is unlawful to treat people unfairly due to their sex, sexuality or chosen gender. But certain exceptions apply, including for employment at religious schools or for sporting club competitions.

The Institute consulted widely and asked members of the community whether they thought that the current Act has the balance right when it comes to the need for protection on the grounds of sexual orientation, gender identity and intersex status and other fundamental rights, including freedom of religious belief.

It heard from a broad spectrum of South Australians, some with direct experience of discrimination on the basis of their sexual orientation or gender identity, and many more who were keen to ensure that the law continue to recognise their right to educate their children in line with their religious beliefs and values. For this larger group, it was critical that all staff shared the values and ethos of their school, and that the law protect that right, even if it meant discriminating against potential or current employees.

In terms of evidence of discrimination, the Institute received feedback from the Equal Opportunity Commission and others that:

To address these issues, the Institute has recommended that the current law be amended to make it clear that:

These reforms would protect students, patients and employees from discrimination on the grounds of who they are or who they love.

In making these recommendations, the Institute has also highlighted the need to protect the  right of religious bodies to continue to run their places of worship and schools in line with their religious beliefs, and for parents to be able to educate their children at schools in accordance with these beliefs.

The Institute has recommended that certain features of the current law remain in place. These include provisions that permit religious bodies to discriminate with respect to the training and ordainment of priests, and provisions that permit religious and non-religious employers to specify that a particular job be filled by a woman or a man, or a person of a particular sexual orientation, if this can be shown to be a genuine requirement of the job. This provision can be used with respect to the employment of boarding house staff for single-sex dormitories, or to employ gender diverse staff for counselling services designed to support transgender people, for example.

The Institute has also recommended that religious bodies retain the right to discriminate on the grounds of religious belief when it comes to employment in religious schools – but only if this discrimination can be shown to be reasonable in all the circumstances.

This would enable a religious school to specify, for example, that its current and future employees share their religious faith. Importantly – unlike the current provisions – it would not permit a religious school to fire a teacher or staff member purely on the basis of their gender identity, or association with a gay or lesbian relative or friend. In each case, a strong link between the religious beliefs of the school and the particular conduct in question would need to be established, and consideration given to whether the discrimination was unjust or harsh.

The Institute also recommends that consideration be given to whether religious belief should be further protected under South Australian law.

It has suggested that the Equal Opportunity Commission be empowered to issue guidelines to help clubs, schools, health-care providers and employers understand how their legal rights and obligations work in practice. This would enable the Commission build upon the great work it and other bodies have already undertaken to promote inclusion and diversity in South Australia, for example in the area of junior sport.

This last recommendation recognises that the law is a blunt instrument to address discrimination and unequal treatment in our community. The Institute has sought to repeat and carefully balance the sometimes competing considerations in this sensitive area.

While laws can and do play an important role, it ultimately is up to all of us to make sure that we understand and accept difference in our community – whether that be gender diversity, sexual diversity or diversity of religious belief – and work together to promote equality and tolerance in our state.

A full copy of the report is available at the Institute’s website.

Sarah Moulds is a researcher with the South Australian Law Reform Institute and a PhD student in the University of Adelaide’s School of Law.

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