Proposed changes to the Sex Discrimination Act supported by Labor, the Greens and some Coalition members, could have a “profoundly detrimental effect” on religious schools, Dr Greg Walsh said during an address at the Sydney Institute.
Dr Walsh, from the School of Law at Notre Dame University, said that had the changes proposed to the Commonwealth Parliament last December been enacted “it would have meant religious schools, religious universities and other religious bodies providing education would have been unable to deny admission, expel, impose a detriment or deliver access to a benefit on grounds such as sexual orientation and gender.”
Dr Walsh gave the example of a boy attending an all-boys school who develops gender dysphoria and wants to be recognised and treated as a girl by the school, including changing his name, pronoun and uniform.
“It would be difficult to see why it would not be seen [under proposed changes to the SDA] as imposing a detriment on the grounds of gender identity if a religious school refused to do that,” Dr Walsh said.
“If the boy wants to transfer to an all-girls school it’s unclear whether that all-girls school would be able to say no to that boy now identifying as a girl.”
Responding to Dr Walsh was Associate Professor Amy Maguire from the Newcastle Law School. Professor Maguire said she supported amending the SDA.
“It is reasonable and necessary to limit religious freedom in context of religious schools to protect the best interests of children and their rights to an education appropriate to their needs,” she argued.
“I support the removal of exemptions which permit direct discrimination against students in religious schools.”
However Dr Walsh rejected the notion that the religious freedom of schools must be reduced in order to uphold equality.
Rather, he said, the universal human right to equality must also be extended to religious schools and the students attending such schools.
“If you look at the right to equality under international human rights instruments, one of the grounds it protects is the ground of religion.”
“Any law that adversely affects religious schools can be criticised on the basis that it violates the right to equality, completely counter to the argument made by Labor, the Greens and others, that these protections themselves are violations of the right to equality.”