State by state guide as to whether schools can discriminate against same sex students at the formal
WARNING! WARNING!
What I have set out below about religious defences may need to be reconsidered in light of a recent NSW Tribunal decision. Link to the updated post at the end of this post.
I was asked late last week by Triple J about the what if- what if the gay students were going to a school outside Queensland- would the student be able to complain that they had been discriminated against because they could not bring their gay partner.
Good question.
So I’ve set out the shopping list for each State and Territory as to discrimination about refusing students bringing a friend to the school formal who is of the same sex. It’s clockwise starting in Queensland.
Queensland
As I
posted before, it is illegal for a school in Queensland to discriminate in the provision of benefits arising from enrolment (like the formal) or to discriminate in the provision of goods and services (like the formal). This is the case whether the school is state or private, and whether religious or not.
New South Wales
Transgender discrimination- schools in NSW can’t discriminate against transgender students in the provision of benefits (such as going to the school formal) except if they’re a private school, when they can discriminate.
Homosexual discrimination- schools in NSW can’t discriminate against homosexual students (both gay and lesbian) in the provision of benefits (such as going to the school formal) except if they’re a private school, when they can discriminate.
However, this is when it gets trickier for both types of discrimination. Someone providing a good or service cannot discriminate. So for example a school or a function centre organising the school formal is not allowed to discriminate.
There are exceptions for religious schools allowing them to discriminate when it is for “any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”. So if a school, such as the Church of England Grammar School said that for boys to invite other boys (as opposed to girls) to the school formal did not conform to the religious views of the school, then the school might be able to discriminate.
Australian Capital Territory
It is illegal in the ACT to discriminate on the grounds of sex, sexuality or transsexuality. Acts of discrimination extend to preventing a student from gaining benefits from a school, such as going to the formal. The school also cannot discriminate in the providing of goods and services or facilities.
There are exceptions for religious schools to “any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”. So if a school, such as the Church of England Grammar School said that for boys to invite other boys (as opposed to girls) to the school formal did not conform to the religious views of the school, then the school might be able to discriminate.
There is a similar exception specifically allowing religious or faith schools to discriminate “in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed”.
Victoria
It is illegal in Victoria to discriminate on the grounds of gender identity, lawful sexual activity, sex or sexual orientation. Acts of discrimination extend to preventing a student from gaining benefits from a school, such as going to the formal or in the subjecting the student to any other detriment. The school also cannot discriminate in the providing of goods and services.
Religious schools can discriminate for the formal if the discrimination “conforms with the doctrines of the religion” or “is necessary to avoid injury to the religious sensitivities of people of the religion”.
A religious school can also discriminate if it discriminates “in the course of establishing, directing, controlling or administering the educational institution (including the employment of people in the institution) that is in accordance with the relevant religious beliefs or principles.”
So if a school, such as the Church of England Grammar School said that for boys to invite other boys (as opposed to girls) to the school formal did not conform to the religious views of the school, then the school might be able to discriminate.
Tasmania
It is illegal in Tasmania to discriminate on the grounds of sexual orientation, lawful sexual activity, relationship status or gender.
South Australia
It is illegal in South Australia to discriminate on the grounds of “sexuality” which means heterosexuality, homosexuality, bisexuality or transexuality. Acts of discrimination extend to preventing a student from gaining benefits from a school, such as going to the formal or in the subjecting the student to any other detriment. The school also cannot discriminate in the providing of goods and services.
Religious schools can discriminate for the formal if the discrimination “conforms with the doctrines of the religion” or “is necessary to avoid injury to the religious sensitivities of adherents of that religion”.
A religious school can also discriminate if it discriminates on the ground of sexuality, or cohabitation with another person of the same sex as a couple on a genuine domestic basis, that arises in the course of the administration of that institution and is founded on the precepts of that religion. So if a school, such as the Church of England Grammar School said that for boys to invite other boys (as opposed to girls) to the school formal did not conform to the religious views of the school, then the school might be able to discriminate.
Western Australia
It is illegal in Western Australia to discriminate on the grounds of gender history, or “sexual orientation” which means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person. Acts of discrimination extend to preventing a student from gaining benefits from a school, such as going to the formal or in the subjecting the student to any other detriment. The school also cannot discriminate in the providing of goods and services.
Religious schools can discriminate for the formal if the discrimination “conforms with the doctrines of the religion” or “is necessary to avoid injury to the religious sensitivities of adherents of that religion”.
A religious school can also discriminate if it is “in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed”.
So if a school, such as the Church of England Grammar School said that for boys to invite other boys (as opposed to girls) to the school formal did not conform the religious views of the school, then the school might be able to discriminate.
Northern Territory
It is illegal in the NT to discriminate on the grounds of sex or sexuality. Acts of discrimination extend to preventing a student from gaining benefits from a school, such as going to the formal or in the subjecting the student to any other detriment. The school also cannot discriminate in the providing of goods, services and facilities.
Link to update
