Reconciling Freedom and Equality for Peaceful Coexistence: On the Need to Reframe the Religious Exemptions in the Sex Discrimination Act

Abstract

In this article I evaluate the capacity for the religious exemptions in the Sex Discrimination Act (Cth) to provide peaceful coexistence through reconciling freedom and discrimination. The exemptions provide that religious educational institutions can directly discriminate against staff and students on the basis of sexual orientation and gender identity if they do so in good faith and in accordance with their religion to avoid injury to the religious susceptibilities of adherents to that religion. The exemptions fail to provide peaceful coexistence through reconciling freedom and discrimination for two reasons. First, the exemptions are offensively and irrelevantly targeted at sexual minorities, undermining the dignity of diverse staff and students. Second, in their form as exemptions, they frame the communal rights of people of faith as a grudging exception to a general prohibition against discrimination, positioning religious institutions as seeking a special privilege to maliciously make decisions based on prejudice. Reframing the exemptions as positive associational rights simultaneously addresses these twin failures by 1) removing the stigmatic focus on sexual minorities, 2) supporting equality, and 3) providing a necessary and robust legal protection for religious educational institutions to select and regulate members of their community to maintain a religious ethos, thus supporting religious freedom. The recognition of positive rights for religious institutions contributes to peaceful coexistence by promoting diverse approaches to the public good while avoiding the hostile targeting of sexual minorities.