Attorney-General Michaelia Cash says protecting trans students poses risk to religious schools’ ethos

Attorney-General Michaelia Cash says a move to immediately strip church schools of the ability to discriminate against transgender students would raise complications over bathrooms and uniform requirements, and risk eroding the ethos of single-sex religious schools.

Coalition MPs are deeply divided over the federal government’s proposed religious freedom laws, with Prime Minister Scott Morrison facing a revolt from moderate MPs should the bill go to a vote this week.

Attorney-General Michaelia Cash has defended the government’s proposal to protect students from being expelled at religious schools but not transgender students. Credit: Alex Ellinghausen

At a lengthy party room meeting on Tuesday morning, Mr Morrison was warned by several MPs they could not accept his proposal to prohibit schools from expelling gay students as part of the religious bills package while leaving transgender students vulnerable to discrimination.

Coalition members were unable to resolve their disagreement over the bill, with the meeting to resume after question time on Tuesday.

The bills package will create a new Religious Discrimination Act, and also amend s38(3) of the Sex Discrimination Act to make it unlawful to expel students because they are gay – but the narrow amendment will leave schools with a legal basis to discriminate against students on the basis of gender identity.

Senator Cash said the decision to protect only gay students – but not transgender students – from expulsion as part of the proposed laws was about ensuring single-sex schools were not ill-equipped to deal with students who transitioned, while also respecting the wishes of other parents.

“If subsection 38(3) of the Sex Discrimination Act were amended to remove the exemption for religious schools to discriminate against a student on the basis of their gender identity, it could have the potential to effectively nullify the intention and ethos of religious single-sex schools,” Senator Cash said.

“For example, if a current student transitioned whilst enrolled at a single-sex school, a religious single-sex school would not be adequately equipped to cater to the needs of the opposite sex. Matters such as uniforms, bathrooms, as well as the wishes of other parents to send their children to a single-sex school would need to be addressed.”

Labor frontbencher Tony Burke would not say whether the Opposition would accept the exclusion of transgender students from the scope of the amendments, telling ABC radio the party would determine its position once it had seen the final version of the bill.

But he added: “The Prime Minister previously said he would end discrimination for all students, and he should be true to his word on that.”

In a letter to Labor leader Anthony Albanese in December, Mr Morrison told his opponent there was “no place in our education system for any form of discrimination against a student on the basis of their sexuality or gender identity” and informed him the government would amend the SDA to address the issue.

The amendment has been welcomed by the Australian Christian Lobby, which revealed on Monday that it had been negotiating with the government “about a very narrow and very precise amendment”.

“It needs to focus merely on the expulsion of students or the non-expulsion of students based on sexual orientation only,” ACL deputy director Dan Flynn told Vision Christian Radio.

“The government is wanting to know our opinion on a day-by-day basis.”

Swimming champion and LGBTQI advocate Ian Thorpe, who was in Canberra to lobby against the proposed laws, condemned the bill as “state-sanctioned discrimination” that sought to “gain rights for one group of people, whilst excluding another group of people”.

A group of moderate Liberal MPs, including Dave Sharma, Katie Allen and Fiona Martin, had been pushing for the full repeal of s 38(3) of the Sex Discrimination Act, which gives religious schools a legal exemption to discriminate against students on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy providing it is done “in good faith in order to avoid injury to the religious susceptibilities of adherents” of the religion.

The government’s proposed amendment will deal only with the expulsion of gay students and will leave untouched the provisions relating to gender identity, marital and relationship status and pregnancy. Instead, the government has commissioned the Australian Law Reform Commission to review the operation of s38(3) and advise whether further changes are required once the Religious Discrimination Act has been in operation for 12 months.

Senator Cash said the ALRC process was “an important and crucial step that cannot be rushed”.

The proposed amendment does not involve the full repeal of section 38(3) of the act, which gives religious schools a legal exemption to discriminate against students on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy providing it is done “in good faith in order to avoid injury to the religious susceptibilities of adherents” of the religion.

Queensland Liberal MP Angie Bell, who had been a key hold out within the party, confirmed she would now vote for the bill in light of the amendment covering gay students, agreeing that protections for transgender students should instead be addressed by the ALRC.

“Transitioning students are at the highest risk of experiencing mental health difficulties and present particular challenges for single sex schools. Those details will be looked at through the ALRC process and reported back 12 months after the passage of the religious discrimination bill.”

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