Praise the Lord! Lutheran Schools Can Still Legally Discriminate Against Gay Staff and Students.

A Post by Neil Hart on homosexuality, LGBT , lesbian and gay stuff and the Lutheran Church of Australia.

On the 20th November the Federal Government released draft legislation which consolidates 5 Anti-Discrimination Laws. The proposed laws include new protected grounds for sexual orientation and gender identity.

Submissions on the proposed new legislation were called for early this year and the Lutheran Church and Lutheran Schools gave voice to their concerns through the various independent Schools Associations and an ad-hoc interfaith council. Predictably, the submissions focused on the potential loss of religious freedoms.

Well, it seems their petitions (both to the parliament and, I guess,  to our Lord) were granted. Previous exceptions from anti-discrimination laws on the grounds of religion remain in the new legislation.

Section 33 of the legislation states…

It is not unlawful for a person to discriminate against another person if:

(a) the first person is a body established for religious purposes, or an officer, employee or agent of such a body; and

(b) the discrimination consists of conduct, engaged in in good faith, that:

(i) conforms to the doctrines, tenets or beliefs of that religion; or

(ii) is necessary to avoid injury to the religious sensitivities of adherents of that religion.

Thank God for religious sensitivities. (Insert wry smiley face).

A “Leadership Update” sent out by Lutheran Education Queensland announced the good news.

  …importantly, the Bill does retain most of the existing exceptions for religious organisations – including those involved in the provision of education…

One can almost hear their collective sigh of relief.


Is anyone else just a little bit offended by this? As one Lutheran teacher said to me…

“Dont they realise how wrong this looks to those outside of the religion?”.

Surely he’s right. Every organisation that employs people and offers goods and services to the community are forced by legislation to act appropriately toward those they employ and those they serve. They are compelled not to discriminate. And yet our Church and  Schools maintain that this law should not apply to them because of their “religious sensitivities”. Our church and schools feel uniquely qualified to discriminate…by God I guess (?)



But… That is not the end of the story.

The proposed Bill offers one new ruling that I find very interesting and which, I believe  Lutheran Educators should note well.

Section 33 continues…

The (religious) exception does not apply if:

(a) the discrimination is connected with the provision of  Commonwealth funded aged care.

This means that Lutheran aged care facilities that receive Commonwealth funding are no longer able to discriminate against any of its clients on the basis of their sexual orientation. They can still discriminate against gay employees (insert sad emoticon) but not against those to whom their service extends.

The explanatory notes to the bill state the following

There was significant feedback during consultations of the discrimination faced by older same-sex couples in accessing aged care services run by religious organisations, particularly when seeking to be recognised as a couple. (pg 42)

It’s not hard to imagine the various scenarios.

Pam has a small unit in an aged care facility. She had fallen in love with Joy from the same facility and they have moved in together. They would gladly get married as other couples in this facility have done but the law prevents… If Joy or Pam had their own private unit they would be free to enjoy this fundamental right of a shared life and partnership. However, while they are in the aged care facility of a religious institution they are subject to the whims of the administrators. Acting on the complaints from the facility’s pastor and other residents they are refused permission to cohabit. The aged care facility claims religious exemption from anti-discrimination laws as the basis for their decision.

Or, Harry who is in need of  a higher level of care has found a room  in a religious aged care facility. Men and women in his situation who are married are given generous visiting arrangements and extended certain privacies when it comes to their partners. Harry, however, who has been with Martin for the last 40 years is not given those same rights. Once again the religious exceptions clause to the anti-discrimination laws are used to justify the decision.

So, the government has quite properly responded to protect the rights and needs of this particularly vulnerable group.

The explanatory notes continue…

 When such services are provided with Commonwealth funding, the Government does not consider that discrimination in the provision of those services is appropriate. . (Pg 42.)

The ruling establishes that while a religious organisation has the right to protect its religious sensitivities that protection does not extend as far as  to detriment those who receive the services of the organisation particularly if that organisation receives Commonwealth funding. If I may put words into the legislators collective mouth…

“Not on our watch and not with our money”.


Gay couples in aged care facilities have obviously protested and they have been heard. But there is another vulnerable group who, because of their age, have no voice of their own. I am talking about gay and gender questioning young people who are in the care of religious schools.

Our schools face similar issues to those of our aged care facilities. Attitudes toward gay students is officially governed by Church statements which declare homosexuality to be sinful, disordered and diseased. Pastoral care is often provided by ministers who have sworn to uphold those statements. It is doubtful that these pastors would be able to provide the affirmation that these students so desperately need.

Sex education classes may well be provided by staff who have little understanding of the issues faced by  gay or gender questioning  students. Students may find themselves in classes of teachers who, because of their faith,  are antagonistic toward “homosexual activity” or “homosexual lifestyle choices”. Because of the LCA’s statements these teachers may feel free (even duty bound) to voice their opinions.

One may question whether the above scenarios are accurate and point to the very real positive care that is given in many Lutheran Schools. However, the documented increased levels of depression, isolation, self harm and attempted suicide by young gay people in religious schools and organisations attests to the fact that a very real problem exists. (See Writing Themsleves In Reports 2 and 3 2004, 2010)

So, why has the government acted to protect those vulnerable gay people in aged care facilities and not those in religious schools?

Perhaps its simply because their voice has not yet been heard.

Perhaps someone should do something about that.

Lutheran Educators take note. This is only the start of the story.