The Australian Human Rights Commission’s latest report into sexual orientation, gender identity and intersex (SOGII) rights reveals an unresolved tension between religious liberty and the Sex Discrimination Act. This tension is keenly felt, but not well understood in contemporary secular Australia.
Most of the report reads as a useful but uncontroversial to-do list, which includes the expungement of past convictions and equalising ages of consent. It also acknowledges some significant current institutional failures, including addressing rural and indigenous LGBTI services. A few areas, like surrogacy legislation, are highlighted as requiring further discussion, thought and evaluation.
However, an apparent conflict between religious freedom and sexual anti-discrimination legislation runs throughout the report. It is particularly prominent in three areas: marriage, education, and social service provision.
The report references only briefly the unconvincing arguments that same-sex marriage would impinge on religious freedom. “Gay” marriage won’t prevent anyone from getting “straight” married. And conservative religious groups won’t be forced to celebrate same-sex marriages.
Conversely, religious arguments against same-sex marriage – without fail – insult the dignity of existing same-sex relationships, marriages and families.
Such arguments also silence the diversity of marriage practices within religious communities. Who remembers that the global Anglican Communion recommended the recognition of polygamous marriages in 1988? And what about those religious groups who want the liberty to celebrate same-sex marriages on the basis of their faith?
Education and social services
Tensions between religious and SOGII rights in education and social services are more complex. Should religious schools be forced to teach LGBTI-inclusive sex education? Should they be allowed to sack a teacher for entering a same-sex marriage? Should they be able to refuse to employ a transgender gardener?
Current exemptions are inconsistent across different types of services. For example, LGBTI people can be excluded from religious schools, but not from nursing homes.
These are not simple issues, but they are important.
Over the past 60 years, in particular, religious institutions have come to provide a very large proportion of Australia’s social services. Nearly 40% of secondary students in Australia now attend private schools. Most of these are religious.
Australia has reached a point where the secular state is funding religious institutions to provide essential public services. In fact, on an institutional level, it is now questionable how secular Australian society is.
Why make exceptions for religion?
Australia is one of the most secular countries in the world in terms of religious identity and belief. “No religion” has been the fastest-growing category of religious affiliation for more than a decade. Yet Australians are surprisingly bad at thinking about the place of religion in society.
Giving (some) religious organisations special rights to discriminate is an example of Australia’s confusion about what religion is, and where it fits in society.
As is evident in this report, there are problems with setting religious freedom against LGBTI rights. At the very least it sets religious institutions and LGBTI people as equal, competing groups. This is a false equivalence.
LGBTI people are not a church, nor do they have a common ideology or belief. LGBTI people can be atheist, agnostic, Buddhist or Baptist.
Setting sexual and gender identity rights against religious rights obscures the diversity of faith of LGBTI people. It also clouds the diversity of attitudes to gender identity and sexuality within religious communities.
There is a danger that by setting religious and sexual/gender identity rights in opposition, we are entrenching the very problem that the Human Rights Commission is attempting to resolve.
How, then, should we live?
Human Rights Commissioner Tim Wilson has announced the formation of a religious freedom roundtable. The roundtable will:
… explore the full breadth of issues that emerge from religious freedom and its interaction with public policy in 21st-century Australia.
This will include issues of gender identity and sexual diversity.
We need to think carefully about the grounds on which we let some groups act outside of the law. What effect does it have to legitimate negative attitudes to LGBTI people in religious organisations? Why should the state condone prejudice in religious contexts? Are ideas about gender identity and sexuality derived from religion beyond critique?
The roundtable is exactly the kind of development that might help resolve our fuzzy thinking about religion.