Legislating Religious Freedom and Discrimination in Schools: A Theoretical Critique

Societal shifts that call for greater inclusion and the removal of discriminatory barriers in all areas of life have extended to religious schools and discrimination.Generally, discriminating against a person because of their sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, among other protected characteristics, is prohibited in a broad range of contexts. 1However, religious schools may discriminate against staff and students in all the listed traits to avoid injury to the susceptibilities of religious adherents. 2 The resulting concern is that persons with such traits may be denied the opportunity to work or study at a religious institution.Those discriminated against often offend the relevant religion's doctrine, illustrating the fundamental tension between religious freedoms and progressivist ideals.A vast array of arguments has been presented by many stakeholders, each with varying underlying values. 3Positions taken can be broadly categorised into three policy outcomes regarding the Sex Discrimination Act (Cth) s 38 ('SDA') 4 : repealing it, amending it, or leaving it unchanged. 5 Applying Thomas Aquinas' theory of classical natural law, it is submitted that the relevant section should be repealed and that certain necessary amendments should be made. 6 This is achievable by deriving a specific conclusion from first principles that religious schools should not discriminate.Such a conclusion is made possible by relying on the concept that all are made in God's image, that compassion is unconditional, and that Jesus' ministry displayed radical inclusivity.This outcome will ease enduring tensions and ensure all Australians can work and study at religious institutions.