May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster

Abstract

Section 38 of the Sex Discrimination Act 1984 (Cth) provides exceptions to various non-discrimination obligations of the SDA so that those obligations do not burden religious educational institutions. Legal controversy exists over whether, in light of section 38, a State law that imposes sexual orientation and/or gender identity non-discrimination obligations on religious schools is constitutionally valid under section 109 of the Australian Constitution. In Volume 1 of the Australian Journal of Law and Religion, Associate Professor Neil Foster argued that such a State law would not be valid. This article, a rejoinder to Foster, considers the jurisprudence of the High Court on section 109, as well as other relevant case law. After considering the case law, it concludes that State laws that impose sexual orientation and/or gender identity non-discrimination obligations on religious schools can be consistent with section 38 of the SDA and thus not rendered invalid due to section 109 of the Australian Constitution.