As debate rages about the religious discrimination bill, let’s remember a simple fact: under federal law, religious schools can already expel gay and transgender students for their sexuality and gender.
As Coalition attack lines have emphasised this week, this power comes from an exemption for religious educational institutions in the Sex Discrimination Act, including a version passed by the Labor government in 2013.
So once upon a time, there was bipartisan support for this.
The Ruddock review
Fast forward to May 2018, when the Ruddock review into religious freedom, launched during the same-sex marriage debate, reported back to the Turnbull government.
One of its key recommendations was: if religious schools want to discriminate against staff or students for their sexuality or gender, this must be stated in a public policy.
The Turnbull government didn’t release the report right away, then in August Turnbull was succeeded by Scott Morrison, the beneficiary of a conservative push against a moderate Liberal prime minister.
Turnbull quit parliament, triggering a byelection in the socially progressive, usually safe Liberal seat of Wentworth.
Ten days before the byelection, the recommendations of the Ruddock review leaked.
The review panel had thought they’d get a pat on the back for tightening the existing religious exemption but instead the leak triggered a backlash over the fact that schools were able to expel LGBTQ+ students at all. The Liberal candidate, Dave Sharma, rejected their right to do so.
An impossible bargain
Labor offered bipartisan support to fix the law, and within days Morrison committed to amendments to ensure students weren’t discriminated against on the basis of sexuality or gender.
The Morrison government lost the byelection, then in November 2018 made a half-hearted effort to implement the promise which failed when Coalition senators insisted that existing religious exemptions “should not be eroded unless adequate protections for religious freedom are afforded in their place”.
The government asked the Australian Law Reform Commission to study the problem, giving it a deadline of April 2020 to report back, then asked it to delay until 12 months after the religious discrimination bill had passed parliament.
So bipartisan support to protect LGBTQ+ kids had become theoretical support only from the Coalition, with religious freedom first cab off the rank and LGBTQ+ children to follow.
The religious discrimination bill went through its own torturous process of drafting and redrafting, during which Liberal moderate MPs asked for the LGBTQ+ commitment to be delivered.
Before the bill was introduced the attorney general, Michaelia Cash, wrote to the ALRC asking for “detailed drafting” to protect LGBTQ+ students, but in terms of timing it was still religion first, LGBTQ+ kids second.
Morrison introduced the bill on 25 November.
On 1 December a group of four Liberal moderate MPs revealed they had a deal with Cash to remove the religious educational exemption from the Sex Discrimination Act, to protect both teachers and students.
On the same day, Morrison wrote to Anthony Albanese proposing to protect students through an amendment.
But Morrison sought Labor’s support to wave the religious discrimination bill through the lower house, unamended, meaning that the amendment to protect LGBTQ+ students was to follow either in the Senate or after the religious bills passed.
Albanese wrote back that although “protection against religious discrimination should be a uniting, and not dividing, moment for the nation” he wanted to wait for committee inquiries to report back on 4 February, because both MPs and senators needed to know the outcome before casting their votes.
Dealbreaker
In mid-December, Cash then told Christian lobby group FamilyVoice protections for LGBTQ+ students would still have to wait for the ALRC review, 12 months after the religious bills – appearing to renege on the deal with Liberal moderates.
Criticism of Cash was muted, as we now know because Morrison had made a commitment to the four MPs, who thought the deal might still stand.
On Thursday, the firestorm around Citipointe Christian College led the prime minister to recommit to protect LGBTQ+ students, this time confirming the amendment to the Sex Discrimination Act would be contained in the religious package.
Did Cash mislead Christian stakeholders? FamilyVoice’s Greg Bondar said the amendment was “inconsistent” with what Cash had said, and Morrison had “betrayed” the principles of the religious bill.
After months of saying LGBTQ+ students would have to wait for protection, they finally appeared to have equal priority with the religious discrimination changes.
As the Greens senator Janet Rice has noted, a child who started high school in 2018, when the commitment was first made, will graduate in 2023 when the ALRC might report back. Now, perhaps, these kids will see the change made while they’re in year 11.
Disarray
But on Friday, the assistant attorney general, Amanda Stoker, walked the commitment back, warning that the Sex Discrimination Act “shouldn’t be changed unless we know the final form of the Religious Discrimination Act”.
“I understand that the prime minister is looking for ways that those things can be done at the same time,” she said, warning of “unintended consequences” if the Sex Discrimination Act change didn’t “integrate well” with the religious bills.
At a doorstop on Friday, Morrison reasserted his intention to legislate protections at the same time as the religious bill.
But why the delay at all? And what are the unintended consequences? Stoker said the government wanted to allow schools to still be able to “maintain standards of behaviour within their community”.
As the attorney general’s department and the Sydney Anglican church both noted in submissions to the religious discrimination bill inquiries, religious schools have the right to sack teachers for their views on sexuality.
The Sydney Anglican church defended an unnamed Christian school against the widely reported claims that teacher Stephanie Lentz had been sacked for being gay, arguing she was sacked “because of [her] belief that a person can be a Christian and be gay” – not for her sexuality itself.
This is why the issue grinds on so slowly, for the Coalition and other conservatives: the legislative solution must be crafted so a gay student can’t be expelled or a teacher fired for their sexuality, but a school must be able to punish those who can reconcile their sexuality and religion and express that view.
In a sense, it doesn’t matter whether the changes are contained in the same bill, or follow in time one after the other.
If LGBTQ+ students and teachers can be gay or have a view about their gender identity without being allowed to express it, the logical priority enforced through law is still: organised religion first, gender and sexuality second.
