Is Gender Identity Discrimination a Religious Freedom Issue?

Abstract

Currently, there are certain provisions in Australian law that exempt faith-based organisations from the operation of laws that prohibit discrimination on grounds of gender identity or 'being transgender'. This paper explores whether there is a religious basis for discrimination on the ground of gender identity, with particular reference to how faith-based schools make decisions about children and young people who seek to transition to a new gender identity – with or without parental agreement. While it has long been the case that a very small proportion of people, from early childhood right through to adulthood, identify as feeling they are of the opposite sex, there are reasons to be concerned about the number of adolescents who are now claiming to be 'transgender' – especially natal females. The research indicates that many of these children and young people have multiple mental health problems or are on the autism spectrum, and may have experienced abuse and other adverse life events. There is also some evidence for social contagion amongst friendship groups. The etiology of transgender identification remains poorly understood from a medical perspective. Identification with a gender identity different to natal sex is often accompanied by various beliefs that are incapable of either validation or falsification by science. These include that biological sex and gender are two different things; that gender is what you feel, that gender is fluid, and that it is possible to be “non-binary”. These beliefs conflict not only with religious understandings of the created order, but also with a mainstream understanding that gender is innate and people are not just 'assigned' a gender at birth. The Christian response to children or young people who are experiencing gender identity issues must be pastoral and compassionate, and focused on their best interests; but this does not mean agreeing with their beliefs. There is thus a basis for a religious exemption to prohibitions on discrimination based upon gender identity, if the law is understood to require that the person be accepted as the gender with which they now identify. However, if the law is understood as requiring only that a person should not engage in discriminatory conduct (for example refusing service in a restaurant), then there is no valid basis for a religious exemption. Beyond the issue of religious exemptions, there are compelling reasons not to legislate that any professional working with children or young people has to accept a young person’s self-identified gender identity against his or her professional judgment. Schools need to be free to adopt a pastoral approach, guided by appropriate health professionals, and based upon their assessment of what is in the best interests of the child or young person.