Adolescent Gender Identity and the Sex Discrimination Act: The Case for Religious Exemptions

Abstract

There is a lot of controversy about section 38(3) of the Sex Discrimination Act 1984 (Cth) (‘SDA’) which permits discrimination by faith-based schools against students on the basis of their sexual orientation and gender identity. This article explains the background to this provision, which in its present form was the result of amendments in 2013. It also explains the problems that would arise if the subsection were repealed without making other amendments to the SDA. Faith leaders have consistently made it clear that they do not want the right to expel or discipline students on the basis of sexual orientation or gender identity and so support the repeal of s 38(3). However, other amendments are needed to protect the rights of faith-based schools. These are, in any event, necessary to buttress the (very doubtful) constitutional validity of the 2013 amendments insofar as they concern gender identity. There is also a need for broader changes to the SDA to address the confusion about how the law on gender identity applies to children and adolescents. It is unclear when a child gains a legally protected gender identity; whether a clinical diagnosis of gender dysphoria is needed; what respect needs to be given to the views of parents, even with a Gillick-competent adolescent; and what professional discretion can be exercised by school principals when they consider that supporting the social transition of an adolescent is not in his or her best interests. The SDA needs to be amended to make clear that it does not require schools to support and affirm the ‘social transition’ of a young person against the wishes of a parent or when the school considers in good faith that this is not in the best interests of the young person. Difficult pastoral issues need to be left to professional judgment, drawing upon the best advice available from the young person’s treating medical and mental health practitioners.