This is about queer* kids in religious schools.
I went to law school wanting to change the world, and I remember the exact moment when I realised I’d need to find some other way. It was a subject on Victorian human rights and anti-discrimination law (ADL for short.) It became clear that the arena in which most discrimination is practiced – everyday life, between private individuals – just isn’t covered by anti-discrimination protections, as those protections are configured in liberal democracies like our own.
The configuration of ADL regimes enshrines a distinction that is fundamental to liberalism: a distinction between public and private life. So, for example, you can believe whatever you like, because belief is defined as private. In theory, according to the harm principle advanced by liberal thinkers like JS Mill, the moment you act on your beliefs in ways that harm another person, your conduct is legitimately the target of regulation – in the name of protecting public order and the very same rights and freedoms that are held by others.
ADL prohibits discrimination in public life. In practice, this means it marks out certain aspects of everyday life as public. You can see the full list in Part 4 of the Equal Opportunity Act 2010 (Vic). It includes employment, corporations, industrial organisations and qualifying bodies, educational institutions, provision of goods and services, accommodation, access to public premises, clubs and societies, local councils and sporting activities.
All other domains of everyday life are defined, by implication, as private.
I’ve worked on numerous projects over my working life that tackled stigma and discrimination in one form or another. Stigma towards people with HIV, or sexual racism, which is race-based stigma in sexual contexts. Discrimination towards international students. Many of those projects said something like this: discrimination is illegal, contact the Victorian Equal Opportunity and Human Rights Commission for advice and assistance. But in the vast majority of cases, that was not truthful or helpful advice.
If a person, let’s call them Peter, experiences the most vile HIV stigma from a dating partner, Norman, that’s a private relationship; ADL does not apply. If Norman goes around telling his friends Peter’s HIV status, there’s no legal remedy against that. It’s the truth, so it’s not defamation. There’s no legal right to interpersonal privacy. Peter might be able to get an apprehended violence order, but the damage will be done. The harm in this case is extreme, and it’s a clear-cut case of discrimination, but ADL does not apply because it occurs within a private relationship.
Likewise, if I offer an apartment for lease on the public market and refuse to lease it to tenants of a particular ethnicity, ADL provides some recourse to rejected tenants (if they can prove it was racially motivated). But if I’m leasing a room in my apartment, to live with me, that’s a private relationship and I can discriminate all I want without fear of legal consequence.
There’s another less recognised consequence of the ADL regime: it makes anti-discrimination protections themselves the dividing line between public and private life. That’s why anti-discrimination law is currently a political battleground. Religious conservatives are borrowing tactics from the United States in their fight to remake our country as a Christian nation.
This time last year, Australia had a plebiscite on same-sex marriage. Religious conservatives were fighting to preserve a public statement of discrimination against queer people in legislation, the law of the land. They lost, and a commission on religious freedom was established. A leak this week revealed that the report recommends legislation to allow religious schools to fire queer teachers and expel queer kids.
Now, as David Marr wrote in The High Price of Heaven way back in 1999, it was already legal to fire queer teachers and expel queer kids. Religious institutions were exempted from having to comply with anti-discrimination protections from the very beginning. (The only exceptions are Queensland and Tasmania; WA has announced it plans to join them.) This included religious schools, hospitals, homelessness and family violence refuges.
As soon as the recommendation leaked, there was a counter-leak claiming that really, the recommendation aims to constrain the right of religious schools to expel queer kids, by requiring them to disclose upfront to prospective students and parents that their policy is to expel any student found to be queer.
There are a few things I want to note about that.
The proposal represents an attempt to get permission to discriminate against queer people and relationships into public law. That violates the harm principle: the government does not regulate conduct that does not cause harm to another person. Queer people and relationships don’t cause anyone harm. The peaceful existence of people and conduct of whom or which you disapprove is not harm.
Now, if you want to create a club for straight people to get together and talk about how terrible queer people are, I’m fine with that. I’m not harmed by that exclusion: your clothes are ugly, your haircuts are bad, your cakes and biscuits are made with margarine and your music is terrible.
ADL already provides so-called negative rights to such groups and institutions, in the form of exemptions from ADL. But the ‘religious freedom’ report demands official recognition of a positive right to discriminate, granted by government. This wouldn’t change the rights of religious institutions, but it would change the character of the law.
Let’s come back to the harm principle. There’s a particular problem with this proposal: it involves kids.
Some kids know they are same-sex attracted or sex and gender diverse from a young age. I certainly didn’t; I didn’t work it out until I was 13 yo. That’s not uncommon, and it highlights a particular problem with the proposal to permit the expulsion of queer kids, so long as their parents have been warned upon their enrolment that this is a possibility. The problem is that a child may only come into the realisation they are same-sex attracted at a point in their personal development some time after enrolment.
The proposed recommendation contemplates severing the child from their friendship network, from supportive relationships with teachers, from their own religious beliefs and community. It is beyond question that such an experience will do permanent psychological damage to that child. Similar damage will be done if a same-sex attracted child sees a teacher fired for the teacher’s own attraction or relationships.
Religious people have the right to their own beliefs, and to teach those beliefs. They have the right, granted under the harm principle, to constrain their own lives in the name of those beliefs. They have the right to teach young people those beliefs, and to invite those young people to constrain their own lives in similar ways.
But they don’t have the right to act in ways that will cause lifelong psychological damage to children and young people.
Apparently, the Ruddock report recommends that, ‘In relation to students, the school must have regard to the best interests of the child as the primary consideration in its conduct.’ But religious schools understand same sex attraction as a contagious and voluntary form of transgenderism, from which it is in the best interests of the child to cease and desist.
Rather, the harm principle should guide a legislative response by the state itself. From the earliest days of liberal democracy, it was recognised that the state has a special responsibility for the welfare of children, and the obligation to intervene if those children are being neglected or harmed. That’s reflected in the parens patriae jurisdiction, where any person can apply to a court for an order in the best interests of a child. It’s the basis of child protection law, truancy officers, indeed, the emergence of the profession of social work.
I was recently diagnosed with PTSD, caused by anti-gay bullying in a Catholic secondary college, twenty years ago. Let me be clear: it is child abuse. Research evidence describes its longterm effects for mental health and a range of outcomes including metabolic disorder and cardiovascular risk. It violates the harm principle, and it has no place in a liberal democracy, even one as imperfect as our own.
* Note about terminology: I personally identify as queer and have done for nearly two decades, but this piece initially referred to ‘gay kids’. That’s because I was writing from my own experience of having been a gay kid – although that doesn’t become explicit until the closing paragraph. It was pointed out that the ‘gay’ identifier doesn’t include trans people or lesbian and bisexual women and girls. Neither does my own lived experience of this issue, but as a result of the PTSD I write about, I’m not in any position to have an argument over terminology, so I’ve changed it to queer.