Liberals rebel to protect trans students as Religious Discrimination Bill passes lower house

The federal government’s contentious Religious Discrimination Bill has passed through the House of Representatives after a marathon session of Parliament.

However, in a significant blow to the government, five Liberals crossed the floor just before 5am to vote with Labor and crossbenchers in support of independent MP Rebekah Sharkie’s amendment to abolish the right of religious schools to discriminate against gay and transgender students.

Prime Minister Scott Morrison in Parliament on Wednesday.Credit: Alex Ellinghausen

The two pieces of legislation – the bill to create a new Religious Discrimination Act and the separate amendment to the Sex Discrimination Act – were voted on one after the other, after the push for laws to protect the rights of faith communities and church schools was accompanied by a counter push to strength protections for LGBTQI students.

Bridget Archer, Trent Zimmerman, Fiona Martin, Katie Allen and Dave Sharma rebelled to repeal section 38(3) of the Sex Discrimination Act that allows religious schools to discriminate against students on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy. That vote was carried by a margin of 65 to 59 votes in what a Labor source described as a “crushing win”.

In a move Prime Minister Scott Morrison had hoped would appease his moderate backbenchers, the government had sought a much narrower amendment to the act that would have prohibited religious schools from expelling students because they are gay. But it left schools with a broader right to discriminate against gay students in other ways, and did not protect transgender students at all.

Ms Sharkie said that while she voted against the Religious Discrimination Bill she was “proud to have played a small part in making bad legislation better”.

“After a marathon battle, my amendment to help protect students from all forms of discrimination has been passed,” Ms Sharkie said in a Twitter post.

The package of bills will now proceed to the Senate, where the government will have to decide whether to try to knock out the Sex Discrimination Act amendment or accept it.

In the Senate, Labor will again try to amend the Religious Discrimination Bill’s controversial statements-of-belief clause, which seeks to create a new legal protection for religious speech by overriding state and federal anti-discrimination laws. The opposition is also seeking a couple of other changes, including to insert an anti-vilification clause into the bill.

Labor narrowly lost a vote to limit the scope of the statement of beliefs clause in the lower house on Thursday morning. Mr Zimmerman and Ms Archer crossed the floor to support the amendment, leaving the vote tied at 62-62, with Speaker Andrew Wallace using his casting vote to defeat it.

When it came to voting on the final religious discrimination bill itself, Mr Zimmerman abstained but Ms Archer voted to reject it after earlier crossing the floor in favour of all Labor amendments, which were ultimately defeated.

The result was 90 votes in favour and six against, with the bill passing the lower house after 4am on Thursday following more than 10 hours of debate. Labor on Wednesday agreed to support the bill in the house on the basis it would seek to amend it.

Ahead of the vote, Mr Morrison moved to quell unrest in his ranks by announcing a new parliamentary committee to examine the reforms, to be chaired by Ms Allen with support by Ms Martin.

The Prime Minister said he had “honestly hoped” the bill would “unite” the house and enjoy bipartisan support.

Mr Morrison said there would be a “time and place” to discuss potential further reforms to protect transgender students and LGBTQI teachers, pointing to the review he has asked the Australian Law Reform Commissioner to carry out within six months, instead of an original 12.

“That time will come and the work must be done ... that will set the clock on another debate to then take place,” he said. But he said that was not a reason to defer introducing protections for those of faith.

“We understand that parents, in making choices about their children’s education are looking for the religious ethos of their school communities to be respected, consistent with the choices that they have made as families and as parents about the manner in which their children will be educated,” he said.

As debate on the proposed laws continued late into the evening on Wednesday, Mr Zimmerman said the statement of beliefs clause “puts religious faith on a pedestal above other rights in a way that I have serious problems with”.

He said he had been “disturbed” by the debate around transgender students, and the attempt to draw a line to protect gay students but not gender diverse children.

“For me, there is nothing different about your sexuality or your gender than the colour of your skin. And I don’t believe that this Parliament would waste a second if there was some old law, which said that a school or any institution could discriminate against you because of your race and allow that to stand on the statute books,” Mr Zimmerman said.

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