Pronouns, employment and religious schools

Originally posted by Assoc Prof Neil Foster in his Law and Religion Australia blog.

Recent press reports (such as this one from the Guardian) say that an employed teacher at a Victorian Roman Catholic school has taken action against the school for “gender identity” discrimination. The school apparently has refused to allow the teacher, Myka Sanders, who identifies as “non-binary”, to use “Mx” as a title (instead of the usual “Mr”). The school has referred to the teacher as “he” rather than using “they” as a preferred pronoun.

The complication in the action is that it seems that the school, Sacred Heart Girls College in Oakleigh, Melbourne, run by Melbourne Archdiocese Catholic Schools (MACS), has raised the fact that the Commonwealth law on this issue of “gender identity discrimination”, would allow the school to operate in accordance with its religious ethos and affirm their view that there are only 2 genders (corresponding to biological sex). So the case has the potential to require the courts hearing the matter to address the question (not so far resolved) whether an organisation can rely on a religious freedom right granted by Commonwealth law, if that right is not recognised by State law. I will explain here why I think this argument made by MACS is correct and any action against the school should fail.

General Legal Background

It seems best to describe the general legal issues before diving into the facts of this case (so far as they have been reported in the press). Laws in Australia at both the federal and state level make discrimination on various “protected attributes” unlawful in various areas of activity, and in particular in employment decisions. The “protected attribute” in issue here seems to be “gender identity”. Discrimination on this basis in employment decisions is prohibited by the Commonwealth Sex Discrimination Act 1984 (“SDA”), sections 5B and 14, and the Victorian Equal Opportunity Act 2010 (“EOA”), sections 8, 9 and 18, with reference to s 6(d) defining “gender identity” to be a protected attribute. Each of the Acts also contains “balancing clauses” which exempt certain actions of religious bodies, and religious educational institutions, from being unlawful. These provisions are designed to balance protection of the important human right of religious freedom, with the important human right not to be discriminated against on irrelevant grounds.

In most circumstances the prohibitions on discrimination at federal and state level operate very similarly. But in the area of protections for religious freedom of educational institutions, there are some clear differences between the SDA and the EOA.

To start with the EOA, s 83A provides the current regime for religious educational institutions and their relationship with employees:

EOA s 83A Religious educational institutions: employment

I have emphasised some key parts of the section here. Note that in particular it seems intended only to provide that discrimination is permitted on the basis of the “religious belief or activity” of the staff member- see s 83A(1)(b). So a decision of a staff member to conduct themselves in ways contrary to the faith commitments of the school, if that decision is not explicitly said to be based on a religious belief, will remain unlawful.

In contrast, s 38 of the SDA is much broader:

It will be noted that this provision means that decisions in relation to staff which are based on the need to “avoid injury to religious susceptibilities of adherents” are made lawful. This somewhat clumsy phrase picks up the deeply-held religious ethos of the organisation. This provides a broader protection than that given by s 83A EOA.

I have previously written two academic comments on how this sort of clash should be resolved. In short, because s 109 of the Commonwealth Constitution gives priority to federal law over clashing state law, I argue that a state law which impairs the operation of a protection provided by federal law on the same topic, is invalid. You can read my original comment in the Australian Journal of Law and Religion here, and my response to a critique of my original comment in the same journal, here.

It is worth noting one other general part of the legal framework. Most discrimination cases are taken in tribunals, not courts. Here there was, it seems, a claim made in the Victorian Civil and Administrative Tribunal (“VCAT”). But correctly that body ruled that it could not hear the matter itself. This is because the High Court ruled in Burns v Corbett [2018] HCA 15 that tribunals, as opposed to the courts, could not hear matters involving federal jurisdiction, and resolving this case would involve the interpretation of s 109 of the Constitution. (See my earlier comments on Burns here.) So the claim has been transferred to a magistrate’s court for a hearing suggested to be in October.

Does this amount to discrimination?

The first question to ask is: do the actions of the school amount to “gender identity” discrimination under the EOA? The phrase “gender identity” is defined in s 4(1) of that Act as follows:

So it would seem that use of the title “Mx”, and a pronoun “they” rather than “he”, might be seen as “personal references” and hence part of a person’s “gender identity”. But this does not answer the question. For unlawful discrimination to have occurred, either “direct” or “indirect” discrimination has to have taken place- EOA s 7(1)(a). For “direct” discrimination based on an attribute, a person must have been treated unfavourably “because of that attribute”- EOA s 8(1). Here the complainant, Myka Sanders, has not been sacked or disciplined. The complainant, from the press report, has been directed not to use the prefix “Mx” on offical documents. It may be argued that all teachers are subject to the same rules- that they should a prefix corresponding to their biological sex.

However, it may be more likely that a claim for “indirect” discrimination can be made, under s 9:

Here it may be said that the requirement (“teachers use prefixes corresponding to their biological sex”) would have the effect of disadvantaging persons with the attribute of “gender identity”. Such persons would find the requirement personally onerous compared to those who do not have this attribute.

The question under s 9(1)(b), then, would be whether the requirement is “reasonable”. Section 9(3) sets out matters to be considered in making this decision, one of which in s 9(3)(b) is whether the requirement is “proportionate to the result sought by the person who imposes” it. The difficulty in making this decision is apparent. One the one hand the complainant feels deeply that the term “Mx” should be used. On the other hand, MACS sees its responsibility to its church and to the parents who have entrusted their children to the school, to not undermine Roman Catholic “anthropology”. The school is quoted in the press as saying:

How does one weigh up the personal comfort of one staff member (who presumably did not use this prefix when starting employment), with a practice that would signal to students a view of human nature that contradicts a fundamental tenet of Catholic teaching?

Would the defence under s 83A EOA apply?

If it seems that there is a possible breach of s 9, then does s 83A assist the school? The provision was quoted previously. In short, probably not. Even if the school had made adherence to the “doctrines, beliefs or principles” of the Roman Catholic faith an “inherent requirement” of the position, under s 83A(1)(b) the reason for the complainant not meeting this requirement seems not to be “because of their religious belief or activity“. The press report does not indicate that the complainant has any religious beliefs about the use of the preferred prefix.

Would the defence under s 38 SDA apply?

However, it seems likely that the defence under s 38 SDA would apply. All that the school would need to show would be that their action “discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”- under s 38(1). So long as they can show that there is no “ulterior motive” in applying this condition, they should be held to be acting in good faith. They would then point to aspects of Catholic teaching that they are required to apply in educating children, and (if relevant) can probably point to deeply-felt objections that Catholic parents would have to undermining such teaching.

Would the SDA defence apply where the EOA defence does not?

Would the school then be able to rely on the s 38 SDA defence, even where the s 83A EOA defence does not apply? This was the subject of my detailed academic papers linked above, where I conclude that the answer is, Yes. In my first article I concluded as follows:

It is to be hoped that the courts will recognise this. Religious freedom is a fundamental human right enjoyed by citizens both individually and as they gather together in religious schools and other organisations.