Trying to get your head around to what extent religious individuals and organisations can discriminate against others who are not of their faith or beliefs but who also have basic human rights?

This introduction, written by the Hon. Michael Kirby AC CMG (former Justice of the High Court of Australia), for Equality Australia’s comprehensive report on LGBTQ+ discrimination in faith-based schools and organisation, might be helpful.

In a country like Australia, our laws should protect all of us, equally.

Most people in Australia would recognise and support that principle.

In the past, the place of LGBTQ+ people in religious settings often gave rise to a particular difficulty. Some religious believers sought to enforce ‘inerrant’ scriptural texts. These often caused serious disadvantages, shame and inequality. Still, this was the reason for devising many broad-based religious exceptions in our laws, including in anti-discrimination laws.  At first, these exceptions were extremely wide. Some still are. Eventually, they caused complaints of injustice and demands for change. The changes that have occurred since those times demonstrate today that such exemptions are neither principled nor just.

The Universal Declaration of Human Rights (UDHR, 1948) affirms the inherent dignity of all people and their right to their inalienable rights and freedoms.  These include the right of people to have and to manifest their religious beliefs.  But their rights must also allow accommodation for the rights of others, including LGBTQ+ people and those with different, or no, religious beliefs.

Community perceptions on matters of human sexuality and gender identity have changed with increasing insistence in recent times.  New ideas, such as marriage equality, have emerged. Many such ideas have become accepted quite quickly. They are valued within our society and they encourage a fresh look at overbroad religious exemptions.

The law should provide ample space for people of different beliefs and life experiences to study, work and live alongside one another, including as those beliefs and life experiences may evolve and change over time. This means that we have to move forward together in a way which allows each one of us to coexist, with respect and protection for each other’s dignity and rights.

But how do we devise a rule that, at the one time, allows some of us to have and enjoy a particular religious conviction, while others can remain involved in religious schools and other organisations, while having and expressing divergent experience and beliefs and the need for respect of their lives? This report seeks to provide answers to these and other related questions.

The laws described in this report are often complex and highly technical.  It cannot be expected that every reader will read each and every word of this report.  However, the essential idea contained in these pages is basically simple.

In temples, places of theological instruction and other strictly religious environments, it is reasonable and just to expect that the state will hold back its enforcement of the universal human rights of all, to protect the rights of people to have and practise their religious beliefs.  Not to do so would be inconsistent with the practice and beliefs of such religions.  However, once a person, religious or otherwise, goes beyond such places, it is reasonable and just to expect the state to protect equally the rights and dignity of everyone.  This will include others who hold to minority religious opinions or no religious belief at all (a growing proportion of the Australian population).  Harmony with the rights and freedoms of others will only be achieved by limiting and narrowing the extent to which the assertions by religious believers will be upheld.  Equally, when religious believers go into parts of the secular world, they can expect that reasonable accommodation will be assured to their right to hold and express their beliefs, in a manner that does not impose itself unjustly on others.

There is increasing understanding, and broad acceptance in Australia, that the past overly broad religious exemptions go beyond what is essential and sometimes diminish the enjoyment of the dignity and rights of others.  Where this is so, such exceptions need to be narrowed or curtailed.  Certainly, it is so when they result in serious diminution in the enjoyment of dignity and rights by others.

Reconciling the interaction of diverse beliefs and experiences in the letter of the law may sometimes be difficult.  But, as this report finds, it is not impossible.  The binding principle is to be found in the opening words (indeed the opening word) of the UDHR itself; “All human beings are free and equal in dignity and rights.  They are endowed with reason and conscience.  They should act toward one another in a spirit of brotherhood”.  No approach, other than accommodating, can ensure that the dignity and rights of both religious people and others must be enjoyed together in true equality.  The dignity and rights of all of us must be respected and upheld equally by the law. Reconciliation of competing claims must be achieved by the touchstone of mutuality, necessary to achieve the promise of equality and dignity to all.

The Hon. Michael Kirby AC CMG

Sydney,

18 March 2024

Please read and/or download the FULL REPORT on the Equality Australia website.