Freedom from sex discrimination or religious freedom to discriminate? Conflicting rights in Australian and Canadian Catholic schools

Year: 2019

Author: Callaghan, Tonya, Higham, Leanne, Jeffries, Michelle, Esterhuizen, Alix

Type of paper: Abstract refereed

Determining the depth of discrimination against gender and sexual minority groups in Catholic schools of selected western nations is best undertaken from an international-comparative perspective. Set within a larger project researching homophobia and transphobia in Canadian and Australian Catholic education, this paper discusses the conflict between the right to be free from discrimination on the basis of sexuality or genderand the right to religious freedom, with particular emphasis on the unfolding Australian context.

Freedom of religionand freedom from discriminationare enshrined in the Canadian Charter of Rights and Freedoms(1982). Within a faith-based school, these two freedoms can easily come into conflict. Catholic catechism defines homosexual orientation as “objectively disordered”, but Canadian Catholic schools operate within a legal framework where sexually diverse identities are constitutionally protected. The tension between religious freedomand freedom from discriminationis currently a central theme within Australian political discourse. Unlike Canada, Australia does not have a bill of rights. While the Australian Constitution (1901) prevents the government from creating laws prohibiting the free exercise of any religion, there is no such protection for sexual and gender diversity. Although the Sex Discrimination Act(SDA) (1984) protects against discrimination on the basis of sexual orientation and gender identity, it also exempts educational institutions from that law, allowing them to discriminate against LGBTI students and staff “in good faith in order to avoid injury to the religious susceptibilities of adherents to that religion or creed”. This exemption, along with the absence of constitutional protection, means lesbian, gay, bisexual, transgender, and intersex (LGBTI) students rely on state-specific laws when their rights are breached in schools, subjecting them to inconsistencies in approaches between different states. In 2018 the Australian Government ordered the Religious Freedom Review, leading to increased debate about whether bolstering religious freedoms would further enshrine discrimination against LGBTI staff and students within educational settings. The re-election of the government in May 2019 placed religious freedom back on the political agenda.

Drawing on law, educational policies, and media accounts, we examine how homophobia and transphobia is enacted and resisted in these contexts. Using critical discourse analysis, we explore the (re)production of discourses about gender and sexuality in relation to Catholic schooling and how policies and practices concerning Canadian and Australian Catholic schools can contradict anti-discrimination laws. Specifically, we highlight LGBTI marginalisation within Catholic schools.