September 21st 2019

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Articles from this issue:

COVER STORY Federal Government should abolish Renewable Energy Certificates

ENERGY BP annual Review shows consumption, production up

CANBERRA OBSERVED NSW Labor caught in Panda's paws doing 'whatever it takes'

RELIGIOUS FREEDOM Religious discrimination bill: A litany of questions

FOREIGN AFFAIRS Boris' brinkmanship shakes up Britain, EU

WATER POLICY Angry farmers protest over Murray-Darling Basin Plan ... again

TECHNOLOGY Are we the dumbest devices in the room?

HISTORY AND POLITICS Lord Acton, nationalism and multiculturalism, Part 2

LITERATURE D.H. Lawrence: The Modernist in exile

MUSIC Dialectical transcendence

CINEMA The Farewell: Elegant and bittersweet

BOOK REVIEW Owning up to market imperfections

BOOK REVIEW Heroism and faith under tyranny

BOOK REVIEW The love that comes after love is gone


EDITORIAL Gladys Liu controversy ignores reality of China's interference

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Religious discrimination bill: A litany of questions

by Terri M. Kelleher

News Weekly, September 21, 2019

Religious freedom is a basic liberty or inalienable human right, recognised in international instruments and treaties such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Is it something that should be restricted to the provisions of a piece of legislation?

The Federal Government has released its religious freedoms package consisting of three bills, the main one being the Religious Discrimination Bill (the Bill). Regardless of how well intentioned, will these give more protection to religious freedom or restrict it to the decisions of secular tribunals as to what the doctrines, tenets or beliefs of a religion include? Are those of religious faith merely being offered a sop to religious freedom?

The failure to deal with conflicts arising out of the change of the definition of marriage in 2017 was the catalyst for the Ruddock inquiry into religious freedoms, out of which the current proposals have come. Do the current proposals resolve those conflicts? Will the Bill protect freedom of speech so that a statement of religious belief would not be grounds for a complaint of discrimination?

At the time of the marriage debate, Archbishop of Hobart Julian Porteous was taken to the Tasmanian Anti-Discrimination Commission under section 17 of the Tasmanian Anti-Discrimination Act for circulating a statement of the Catholic Church’s beliefs on marriage. Would that statement of the beliefs of the Catholic Church on marriage be protected by the Bill?

Clause 41 (1) of the Bill provides that statements of religious belief will not contravene section 17 of the Tasmanian Anti-Discrimination Act. This is welcome and would have avoided Archbishop Porteous being dragged through mediation. However, clause 41 (2) provides that any statement of belief that is likely to “vilify” another person or group of persons will not be protected by clause 41 (1).

What does “vilify” mean? Is a statement which someone feels insults or criticises (synonyms of “vilify”) them enough to render that statement of belief discriminatory? This is a term that has caused widespread criticism of section 17 and of section 18C of the federal Racial Discrimination Act as being too low a threshold for a claim of discrimination.

Another concern was employers sacking employees who stated they believed marriage was the union of a man and a woman. Well, Israel Folau was sacked for a statement of his religious beliefs. Would the Bill protect Israel Folau if it was available to him?

Clause 8 (3) provides that an employer’s code of conduct can restrict or prevent an employee from making a statement of their religious beliefs outside work time if it is to avoid “unjustifiable financial hardship” to the employer. In Folau’s case, the threat of withdrawal of sponsorship could be found to amount to “unjustifiable financial hardship” for his employer, Rugby Australia.

So this clause, even if it was available to him, might not enable him successfully to claim religious discrimination. And employers who have revenue of less than $50 million do not even have to show “unjustifiable financial hardship” to impose such a restriction on an employee.

Would the Bill apply In the case of Israel Folau’s cousin, who was asked to leave the employ of the Catholic school where he worked because of comments he made about the Church and the Catholic liturgy?

Clause 10 says that “a religious body” does not discriminate by “engaging … in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets … of the religion in relation to which … it is conducted.”

But was it the tenets, doctrines, beliefs of the Catholic Church that required his employment to be ended? Would a faith-based school refusing to employ a person or dismissing an employee because they do not share the religion or beliefs of the school or refuses to take part in the religious activities of the school be discrimination against that person because of their non-belief?

In contrast, in relation to gender identity, section 38 (1) of the Sex Discrimination Act (SDA) provides that conduct that is “necessary to avoid injury to the religious susceptibilities of adherents of that religion” does not amount to discrimination. Refusal to employ or sacking an employee who actively opposes the doctrines, beliefs of the school or refuses to participate in the religious activities would be very likely to be seen as necessary to avoid injury to the religious sensibilities of the adherents of the religion. But there is no such specific protection for faith-based schools in relation to religious belief or activity.

Clause 18 makes it unlawful for an educational institution to discriminate on the grounds of religious belief in the terms and conditions imposed on enrolment of a student or by denying access to any benefit available to students or by expelling the student or subjecting the student to any other detriment.

However, would clause 10 protect a faith-based school in refusing enrolment to a student who openly promotes beliefs opposed to the religion of the school or refuses to participate in the religious activities of the school? That would be regarded as conduct “necessary to avoid injury to the religious susceptibilities of adherents of that religion”. But, as already pointed out, clause 10 does not give the same protection in relation to religious belief that section 38(3) of the SDA gives faith-based schools in relation to gender identity.

The reality is that actual cases of conflict are overwhelmingly to do with beliefs about the nature of human sexual identity rather than with religious belief. There is a divide between those who hold the biological worldview that human sexual identity is binary, male and female, and those who believe the gender-fluid worldview that human sexual identity is fluid and changeable, that your gender identity is how you feel and may differ from your biological sex and that you can change your sex to the sex you identify as.

This can be confusing, as a basic element of belief for all major religions is that human beings are male or female. This conflicts with the gender-fluid worldview, an ideology that is being forced on everyone by laws such as the anti-discrimination laws, the Marriage Act amendments and Births, Deaths and Marriage Registration Act amendments. The Bill will not resolve these conflicts.

For example, it does not resolve the conflict of rights where a boy identifies as a girl and claims the right to access girls’ showers, toilets and change rooms. Are schools to be forced to let any boy who self-identifies as a girl into the girls’ showers, toilets, change rooms and dormitories? This would allow 17-year-old biological boys to enter the same toilets and change rooms as 13-year-old girls.

How can a law that is meant to protect women against discrimination in employment guarantee jobs reserved for biological women, when the law says that a man only has to self-identify as a woman to change his sex on his birth certificate to female?

Does this mean a biological male who identifies as female would be eligible to claim the right to these jobs? Will this person be regarded as being on the male or female side of the gender pay gap?

Is it fair to oblige biological females to accept males who identify as females in their sporting competitions? Will such acceptance lead to males who identify as females dominating in women’s sports? Sporting research shows that males on average have a 10 per cent advantage over females.

Will principals and teachers face discrimination charges, and possible loss of professional qualifications, for exercising their duty of care for biological girls by refusing a biological boy who identifies as a girl access to girls’ toilets, showers, change rooms, sports, camps and dormitories?

Will biological women be accused of discrimination against transsexual male-to-females if they ask to have only biological females carry out intimate examinations and treatments such as pap smears?

Should a biological male who identifies as female be accommodated in prison according to their birth sex or according to the sex with which they identify? What about the danger to women in women’s prisons if biological men who identify as women are housed in women’s prisons?

Will women’s-only gyms and clubs, domestic violence shelters, lesbian organisations and other women’s safe spaces be obliged to give biological men who identify as women on their birth certificates, with or without sex-change surgery, access to their facilities?

Will female beauty parlour employees face discrimination charges for failing to provide intimate services such as body waxing to biological men who identify as women? This has already happened in Canada, where a man who identifies as a woman is taking a number of female beauticians to court for refusing to wax his genitalia.

What about parents’ rights to ensure their children are not taught gender- fluid theory in schools or about other forms of marriage and family against their convictions? And what about gender transitioning of young people against their parents’ wishes?

These are the real-life conflicts that are being driven by recognition of “gender identity” in anti-discrimination laws, the Marriage Act and amendments to Births, Deaths and Marriages Registration Acts.

And finally, but most importantly, the exemptions in the SDA that protect the right of faith-based schools to protect the ethos and beliefs of the school also revolve around the issue of gender identity.

It is very concerning that the religious freedom proposals are being dealt with separately from, and before any recommendations have been made on, those exemptions, which have been referred to the Australian Law Reform Commission for report.

The recognition of “gender identity” in the SDA and the absence of any definition of “sex” or “man” or “woman” is at the bottom of most of the conflicts that are arising. There is a need to have a debate about how the law should recognise sex and how these conflicts between biological sex and socially constructed gender identity can be resolved.

A good place to start would be to amend the SDA by re-inserting definitions of “man” and “woman” (which were removed in 2013), and by defining “sex” as “male or female according to reproductive function”.

All you need to know about
the wider impact of transgenderism on society.
TRANSGENDER: one shade of grey, 353pp, $39.99

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