The Australian Human Rights Commission’s latest report into sexual orientation, gender identity and intersex (SOGII) rights reveals an unresolved tension between religious liberty and the Sex Discrimination Act.
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This tension is keenly felt, but not well understood in contemporary secular Australia.
Most of the report reads as a useful but uncontroversial to-do list, which includes the expungement of past convictions and equalising ages of consent. It also acknowledges some significant current institutional failures, including addressing rural and indigenous LGBTI services. A few areas, like surrogacy legislation, are highlighted as requiring further discussion, thought and evaluation.
However, an apparent conflict between religious freedom and sexual anti-discrimination legislation runs throughout the report.
It is particularly prominent in three areas: marriage, education, and social service provision.
The report references only briefly the unconvincing arguments that same-sex marriage would impinge on religious freedom. ‘Gay’ marriage won’t prevent anyone from getting ‘straight’ married. And conservative religious groups won’t be forced to celebrate same-sex marriages.
Conversely, religious arguments against same-sex marriage – without fail – insult the dignity of existing same-sex relationships, marriages and families.
Such arguments also silence the diversity of marriage practices within religious communities. Who remembers that the global Anglican Communion recommended the recognition of polygamous marriages in 1988?
And what about those religious groups who want the liberty to celebrate same-sex marriages on the basis of their faith?
Tensions between religious and SOGII rights in education and social services are more complex.
Should religious schools be forced to teach LGBTI-inclusive sex education? Should they be allowed to sack a teacher for entering a same-sex marriage? Should they be able to refuse to employ a transgender gardener?
Current exemptions are inconsistent across different types of services.
For example, LGBTI people can be excluded from religious schools, but not from nursing homes.
These are not simple issues, but they are important.