Challenging the religious licence to discriminate

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“Jesus didn't discriminate in who he associated with and helped and neither should we.”

 – Reverend Peter Sandeman, Anglicare SA

If you look to popular culture or common media representations of religion, in marriage equality debates, for example, we see religion and (homo)sexuality positioned as antithetical. The rights of one is understood to limit the rights of the other, and the recent announcement that religious exemptions to anti-discrimination laws would continue largely unabated has further fortified these assumptions.

Australia currently has federal legislation which protects against discrimination on the grounds of sex, race, disability and age. However, sexual orientation, intersex and gender identity categories are a problematic omission – one that must be corrected by the Human Rights and Anti-Discrimination Bill 2012.

While each state and territory currently has anti-discrimination laws which protect against some forms of sexuality or gender identity discrimination, the inconsistency in terminology, and particularly the wide-ranging exemptions (particularly for faith-based bodies) means there are considerable gaps in protecting the rights of individuals accessing health services, goods or services, aged care, employment and education.

So where exactly do these exemptions come from?

Due to the complex nature of modern government, social services that were historically provided for by the state have been increasingly contracted to non-government organisations, many of which are religious.

Faith based exemptions, such as section 56 of the NSW Anti-Discrimination Act 1977, arise largely to provide religious organisations the discretion to deny services and employment to sexual and gender minorities if it were to injure the “religious susceptibilities” of their faith.

And while freedom of religion is a democratic right for citizens (provided for by Article 18 of the UN Universal Declaration of Human Rights) exemptions are contextualised in terms of public administration. If you receive public funding to provide community services you should not be entitled to discriminate. We need to differentiate between what is an inherently religious function and what is effectively public administration. Uniting Justice has ably argued this distinction in opposing the wide-ranging list of exceptions and exemptions enumerated in the Bill. 

Indeed, this week, the European Court of Human Rights held that individuals could not use their religious “conscience” to infringe the rights of others in areas of work (i.e. a civil registrar could not refuse to provide services to a same-sex couple). After all, would we allow a teacher the right to not teach girls in a public school because his religious faith did not support the education of women? In refusing to abstract freedom of religion as immutable, the Court recognised that religious freedom operates indivisibly with other rights.  

In contrast, in a foster care case here in NSW, faith-based or religious bodies were given broad license to discriminate against a same-sex couple. Wesley Mission recently denied a gay couple consideration to foster because same-sex parenting was inconsistent with their doctrine of “Wesleyanism,” rather than the teachings of the Uniting Church (to which it is affiliated). While it seems semantic, this effectively allowed a publicly funded body to define the parameters of their “doctrine”. Put simply, gay men and lesbians were excluded as potential parents.

Foster care is designed to benefit victimised children – who are wards of the state – not the Church. Organisations refusing to consider applications from same-sex couples to foster children, without assessing the merits of their applications, counterintuitively place their institutional religious “susceptibilities” above children they are purported to provide care for.

While we should understand that religious faiths are disparate, even within denominations, the law cannot then license discrimination as a mere matter of institutional whim. Not only does this limit access to social services for those who need it, but also, discretion produces uncertainty in administrative regulation.

Even if freedom of religion could be used to justify exemptions, why should they remain broad, permanent and non-transparent?

The answer seems simple. If you had a sign advertising something to the effect of “No gays” or “No intersex people,” the reputational damage would be expectedly disastrous. If institutions want the freedom to discriminate, as a matter of their faith, however narrowly defined it is, then relying on exemptions should be justified and made transparent.

Our haste to polarise religion and sexuality, however, is misplaced. Such oppositions obscure the fact that for so many individuals, there is an indivisible connection between their sexuality and their faith. It’s possible to be both gay and Christian. Yes, really.

Sadly, the automatic nature of legislative exemptions sends out a troubling social message that all religious groups are effectively homophobic.

What emerges then is a confusing double bind. On one hand it discourages individuals from accessing public goods run by faith-based organisations, such as aged care or foster care, for fear of discrimination. However, this simultaneously positions all faith-based organisations as “anti-gay,” even if they are inclusive and welcoming to sex, sexuality and gender diverse people (as many of them are).

Too often the debate on religion and sexuality seems to collapse on evangelical rhetoric that claims to speak on behalf of a diverse mass of people. While not erasing the trauma and shame that many people endure due to religious fundamentalisms, we must also avoid recuperating that violence by making religion into some mythic foe that must be vanquished. To do so would deny the work of many great faith-based individuals and groups, while ceding Jim Wallace the privilege to represent Christianity.

We must also not divorce conversations about religious prejudice from other economic, political, and cultural structures that continue to entrench inequalities.

Last year, significant concerns over the lack of institutional safeguards and transparency promoted the formation of a Royal Commission examining issues of child sexual abuse. Echoing that rationale, we can appreciate that accountability is an issue for all individuals, institutions and communities.

Law reform alone will not completely eliminate discrimination from society. If we believe that it does, then we are seriously underestimating the pervasive and banal impact bigotry has on our lives. A commitment to social justice and equality requires more than recognition – it must willingly embrace critical understanding and transformation. Ending blanket legal licenses to discriminate, though, is a good place to start.

Senthorun Raj is a Churchill Fellow.

Follow him on Twitter: @senthorun