.png)
Prohibit Discrimination Within Religious Educational Institutions
- Lucy Lockhart
- May 17
- 7 min read
Updated: Jun 18
Author: Lucy Lockhart | Publish date: 16/05/2025
Problem Identification:
In Australia, discrimination based on a number of protected characteristics is still legal within religious educational institutions.
Section 38 of the Sex Discrimination Act 1984 (Cth) has an exemption for religious educational institutions, such that, if the discrimination occurs in relation to sex, sexual orientation, gender identity, relationship status or pregnanc - but is ‘in good faith … to the religious susceptibilities of adherents of that religion or creed’ - it is lawful.
This means some forms of discrimination are still legal if seen as ‘in good faith’ with religious beliefs. Equality Australia states this has contributed to unequal treatment in religious educational institutions. This is known to acutely impact members of the LGBTQIA+ community.
Context:
The Sex Discrimination Act 1984 (Cth) defines and prohibits discrimination on the basis of many characteristics to ensure equality before the law. However the Act provides exceptions for religious educational institutions, such as schools, universities and colleges that are established for religious purposes. Faith-based schools are recorded to account for approximately 30% of all registered non-government schools.
In Equality Australia’s 2023 report, they share 15 examples from across NSW, VIC, WA and QLD in which LGBTQIA+ staff and students were legally discriminated against in religious educational institutions. For instance a Christian teacher at a Baptist tertiary college, Karen Pack, was fired after she became engaged to her partner because of ‘the position held by the college on same-sex marriage’. Another teacher at a religious school, Elise Christian, was reportedly dismissed due to her support of students who experienced homophobic bullying from peers and staff. Equality Australia also reports stories of ‘teachers who have been dismissed or refused employment for … becoming pregnant out of wedlock or with the assistance of IVF’. They also share stories of students being denied student leadership positions and forced out of school.
The Black Dog Institute claims this kind of treatment has ‘negative mental health impacts on LGBTQIA+ identifying students’. They found ‘only 34.7% of LGBTQIA+ identifying students reported feeling ‘always safe’ in their schools’. The Black Dog Institute found ‘LGBTQIA+ identifying students reported being twice as likely to experience regular bullying’ and face higher levels of discrimination in the school environment.
Equality Australia CEO, Anna Brown, argues religious schools receive government funding so their policies should be regulated by legislation that is ‘consistent with Australia’s international human rights obligations and reflect who we are as a nation in the 21st century’.
The Australian Law Reform Commission (ALRC) suggests the exceptions provided by the Act may limit certain human rights, including the right to equality and non‑discrimination. Australia is bound to the International Covenant on Civil and Political Rights (ICCPR), which states ‘all persons are equal … and are entitled without any discrimination to the equal protection of the law’. Yet according to the ALRC, the Act may currently ‘prefe[r] one right over another’ as there may be an imbalance between the right to religious freedom and the right to freedom from discrimination.
The United Nations’ Human Rights Council released a report in 2023, which directly related to the balancing of religious freedom and anti-discrimination rights. It argued ‘the right to freedom of religion or belief must not be used as an excuse for violence or discriminatory denial of the human rights of LGBT persons’. The report specifically mentioned several Australian cases of discrimination.
In their 2023 report, the ALRC recommended section 38 be removed from the Sex Discrimination Act 1984 (Cth) to remove the exceptions to anti-discrimination laws within religious educational institutions. Equality Australia, the Australian Discrimination Law Experts Group, Wear It Purple Inc, Australian Human Rights Commission, and other organisations have supported this proposal. While the ALRC has acknowledged the freedom to religion may be limited by this reform, it believes these limitations ‘would be justifiable under international law’. They say this amendment could better balance religious freedom with non-discrimination and ensure Australia meets international human rights obligations.
There is international precedent for allowing anti-discrimination laws to apply to religious educational institutions. The Canadian Human Rights Act 1985 (RSC) does not allow for any religious exceptions to discrimination.
Solution Identification:
Repeal section 38 of the Sex Discrimination Act 1984 (Cth) to prohibit discrimination in religious educational institutions at the next opportunity.
This could maximise the realisation of human rights in Australia and help end legal discrimination based on sex, sexual orientation, gender identity, relationship status or pregnancy.
Advice:
The Attorney General should repeal section 38 of the Sex Discrimination Act 1984 (Cth) to prohibit discrimination in religious educational institutions at the next opportunity.
Public Support:
Where to go to learn more:
Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws - The ALRC’s full report following its inquiry into discrimination in religious educational institutions. Learn more about section 38 and other recommendations here.
Religious Educational Institutions and Anti-Discrimination Laws: Consultation Paper by LGBTI Legal Services Inc. - Provides a number of case studies that highlight the impact of section 38. Read the paper here.
‘Govt urged to act after inquiry backs change to protect students and staff in religious schools’ article by Equality Australia - Learn more about the call for section 38’s repeal here.
A Simple Ask for Dignity and Respect: Equality Australia’s Submission to the Australian Law Reform Commission Inquiry into Religious Educational Institution Anti-Discrimination Laws - Equality Australia’s full submission to the ALRC report, including case studies and impacts of the Act. Learn more about how Section 38 impacts people here.
Sex Discrimination Act 1984 (Cth) - Read the full Act here.
Human Perspective:
Emily had always dreamed of inspiring young minds, but working at a religious school meant constantly hiding a part of herself. At every staff meeting and conversation in the hallways she carefully avoided any mention of her partner. Emily feared if the school found out, she could lose the job she loved. When she eventually married her partner, her employer found out and she was fired because of the school’s view on same-sex marriage. Emily felt excluded and hurt. Despite the commitment she made to education and her students, the school was legally justified to terminate her employment because of section 38 of the Sex Discrimination Act 1984.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/a.
Support
If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com.
Reference list:
Australian Discrimination Law Experts Group. (2023, February 17). Submission to the Australian Law Reform Commission in Response to the Australian Law Reform Commission’s Inquiry into Religious Education Institutions and Anti-Discrimination Laws. https://www.alrc.gov.au/wp-content/uploads/2023/03/75.-Australian-Discrimination-Law-Experts-Group-ADL-submission.pdf
Australian Human Rights Commission. (2017). Religious Exemptions under the SDA Information Sheet. https://humanrights.gov.au/sites/default/files/document/publication/AHRC_2017_Religious_Exemptions_SDA_Info.pdf
Australian Human Rights Commission. (2023, March 2). Religious Educational Institutions and Anti-Discrimination Laws: Submission to the Australian Law Reform Commission. https://www.alrc.gov.au/wp-content/uploads/2023/03/384.-Australian-Human-Rights-Commission.pdf
Australian Human Rights Commission. (2025). Human Rights Explained: Australia and Human Rights Treaties.
Australian Law Reform Commission. (2023, December). Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws.
https://www.alrc.gov.au/wp-content/uploads/2024/03/ALRC-ADL-Final-Report-142.pdf
Australian Lawyers Alliance. (2023, February 23). Religious Educational Institutions and Anti-Discrimination Laws: Submission to the Australian Law Reform Commission. https://www.alrc.gov.au/wp-content/uploads/2023/03/162.-Australian-Lawyers-Alliance-ADL-submission.pdf
Black Dog Institute. (2023, March). Religious Educational Institutions and Anti-Discrimination Laws Submission from the Black Dog Institute. https://www.alrc.gov.au/wp-content/uploads/2023/03/221.-Black-Dog-Institute-ADL-submission.pdf
Canadian Human Rights Act 1985 (RSC).
https://laws-lois.justice.gc.ca/eng/acts/h-6/fulltext.html
Equality Australia. (2024, March 21). Govt Urged to Act After Inquiry Backs Change to Protect Students and Staff in Religious Schools. https://equalityaustralia.org.au/govt-urged-to-act-after-inquiry-backs-change-to-protect-students-and-staff-in-religious-schools/
Equality Australia. (2024, July 4). Equality Australia Calls On PM to Break Stalemate on
Religious Discrimination Reforms. https://equalityaustralia.org.au/equality-australia-calls-on-pm-to-break-stalemate-on-religious-discrimination-reforms/#:~:text=documented%20stories%20of%20discrimination
Equality Australia. (2023, February 23). A Simple Ask for Dignity and Respect: Equality Australia’s Submission to the Australian Law Reform Commission Inquiry into Religious Educational Institution Anti-Discrimination Laws. https://www.alrc.gov.au/wp-content/uploads/2023/03/375.-Equality-Australia-ADL-submission.pdf
Madrigal-Borloz, V. (2023). Freedom of religion or belief and freedom from violence and
discrimination based on sexual orientation and gender identity Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz. United Nations General Assembly, Human Rights Council. https://docs.un.org/en/A/HRC/53/37
Sex Discrimination Act 1984 (Cth).
https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/sda1984209/
United Nations Office of the High Commissioner of Human Rights. (2023, June 21). Freedom of religion or belief not incompatible with equality for LGBT persons: UN expert. https://www.ohchr.org/en/press-releases/2023/06/freedom-religion-or-belief-not-incompatible-equality-lgbt-persons-un-expert#:~:text=The%20expert%20underscored%20that%20the,other%20beliefs%2C%E2%80%9D%20he%20said.
United Nations Office of the High Commissioner of Human Rights. (1976, March 23). International Covenant on Civil and Political Rights.
United Nations Office of the High Commissioner of Human Rights. (1976, January 3). International Covenant on Economic, Social and Cultural Rights.
Wear it Purple Incorporated. (2023, February 24). Response to Australian Law Reform Commission - Religious Education Institutions and Anti-Discrimination Laws Consultation Paper. Australian Law Reform Commission. https://www.alrc.gov.au/wp-content/uploads/2023/03/197.-Wear-It-Purple-Inc-ADL-submission.pdf
Comments