OPINION
This month marks the tenth anniversary of a seven-year-old girl being ejected from a Mandurah Christian school because she was being raised by two gay dads.
School Principal, Andrew Newhouse, said at the time, “If I’d known her dad was gay, I would never have enrolled her.” This story was lead news on TV that night.
The bigotry caused outage. Liberal Premier Colin Barnett strongly criticised the school. Labor Opposition Leader, Mark McGowan, said the law that allowed this was wrong. He offered the expectation that a future Labor Government would repeal it.
In the end, neither Colin Barnett nor Mark McGowan lifted a finger to do anything. This included McGowan’s six-year period as Premier which started shortly after this case.
This anti-LGBTQA+ law has been in place since 1984. It was introduced by the Burke Labor Government. So, what is it?
Under the 41-year-old Western Australian Equal Opportunity Act, there are sweeping “religious exemptions” that allow faith-based organisations to discriminate against LGBTQA+ students, staff, people accessing services and volunteers. Mostly this impacts employees and students in faith-based schools, despite these organisations receiving substantial taxpayer funding.
Two years after the seven-year-old student was turfed out, history teacher, Craig Campbell, was sacked from his employment at a Rockingham Baptist College in the heart of McGowan’s electorate. The school learned that Campbell is gay and dumped him. It became an iconic moment in the middle of the national debate around marriage equality.
Again, Labor MPs expressed outrage, but the law wasn’t changed.
There are only three states where discrimination against students has not been completely prohibited. WA, along with NSW and South Australia remain the hold-out states. And, while the situation for teachers is more complicated, most jurisdictions protect them too.
In 2017, WA Attorney General, John Quigley, called for a review of the EO Act. It dragged on for years. The final recommendations were strong and included the removal of the special religious exemptions, not just in schools but also in faith-based services such as aged-care, charities, and disability services.
The McGowan Labor Government then sat on that report. Nothing happened. Quigley said repeatedly he was unable to act until the federal government made clear what it was doing in this area with regards to proposed ‘Religious Discrimination’ laws. That claim was rightly dismissed as nonsense and was called out as an excuse for inaction.
Federal Focus
The issue of LGBTQA+ students in faith schools became topical during the Scott Morrison period of government. Prime Minister Morrison pursued a personal agenda for “religious freedom,” but encountered push-back from within his own party wanting protection for kids in faith schools.
It’s important to understand here that the proposed federal reform would only have impacted WA, NSW and SA, because that’s where the gaps are. The politics of western Sydney was driving Morrison to meddle in national reform, and he saw the country through a Sydney lens. Under pressure, Morrison promised to amend the Sex Discrimination Act to “protect gay students”, as a sop to Liberal moderates needed to pass his proposed Religious Discrimination Bill. But the promise was contingent on his RDB passing first. They didn’t buy it.
That, and the fact the federal Bill didn’t protect teachers or trans students. The Morrison Bill ultimately collapsed when crossbenchers and liberal moderates in the lower house amended the bill to protect all students – and then Morrison dropped his Religious Discrimination package completely rather than see those extra protections become law.
Federal Labor, meanwhile, ducked and weaved, told religious constituencies that Morrison was to blame for the mess, and allowed the Teals, Greens, Independents and Liberal moderates to lead campaign opposition to the Religious Discrimination Bill.
The failure of the Morrison Bill meant that WA Labor no longer had an excuse for inaction locally, but it still did nothing.
When Albanese defeated Morrison in May 2022, he did so with a promise to protect LGBTQ+ students and teachers, and that he would task the Australian Law Reform Commission to recommend how this should be done, which it did. It tabled its report in March 2024. It called for straight-forward amendments to protect students and teachers.
It gave the Federal Labor Government a mandate to act. It didn’t.
Instead, unnerved by push-back from the religious right, Albanese wobbled on the issue before dumping it. While some faith schools said they didn’t discriminate and didn’t want to, the religious fundamentalists kept pushing for the right to discriminate, backed by Christian Schools Australia.
It ended in stalemate. Federal law continues to allow discrimination in gap states. This is where it gets tricky.
The States
The law in Victoria protecting LGBTQA+ students and teachers in faith schools is strong. However, the Catholic Church in that state argues that Federal Law (allowing discrimination) overrides it. A test case is underway and headed for the courts.
In Queensland it is strong for students, but weak for teachers who are subjected to a sort-of ‘Don’t Ask, Don’t Tell’ regime.
In the ACT and NT it is strong – but the NT law is under threat of being watered down by the CLP in that jurisdiction, especially for teachers.
In NSW, the ‘Greenwich Equality Bill’, was gutted by the Minns Labor Government in 2024, which removed the protections for LGBTQA+ teachers and students. They were thrown under the bus. Premier Minns said his government was waiting on a report from its Equal Opportunity Commission on the issue before considering legislation. This was another excuse to do nothing. The NSW report into faith schools is still being consulted on.
Tasmania has the best laws (implemented 1998), but the religious right have always detested this law, largely because its near 30-year existence proves that the sky hasn’t fallen in, and schools didn’t have to close – which Catholic schools on the mainland currently claim will be the result of removing their special exemptions.
As with the current Victorian test case, Catholic Education Tasmania, and its diocese, argues that state law is overridden by federal law, claiming that the discrimination is allowed by the Albanese Government.
While this claim is nonsense – it’s clear the Catholics are preparing for a legal battle and likely want to push it to the High Court.
Which brings us back to WA
The McGowan/Cook Governments promised to reform this law locally. They haven’t done it. Premier Cook pledged to pass the Bill before the last election. He didn’t. And now we have the legal challenge underway in Victoria, with similar cases potentially looming in Tasmania, as constituencies jostle for clarity on religious discrimination and LGBTQA+ equality.
In this context, it seems likely that the Cook Government will use the current interstate legal challenges as a fresh excuse to do nothing. “We’ll have to wait”, will be today’s political dodge.
The Purity Purge
The push by the Catholics and evangelical churches to establish “a positive right to discriminate,” is known behind the scenes as “the purity purge.”
Essentially, what it facilitates is a pulling-up of the drawer bridge. It allows faith schools to refuse to employ or enrol LGBTQA+ staff and students. And, over time, as LGBTQ+ staff and students graduate, leave and retire the purge is complete. In the end they get what they want: the total removal and refusal of any LGBTQA+ staff and students.
It’s no different to hanging up a sign that says, “whites only, no blacks”, but it’s wrapped up in the euphemism of “a positive right to hire.”
As the Cook government dawdles on this reform, anti-LGBTQA+ groups continue to push for “the positive right to discriminate,” knowing this sounds benign to most voters, but hides a harsh reality.
For more than a decade our community has been insisting on reform that brings us up to date with Tasmania. For more than a decade, state governments have delayed, deferred and distracted on this issue.
This month, WA Labor is promoting its current reform to surrogacy as a great LGBTIQA+ achievement. It will allow gay couples to have a child. At the same time, they continue to preside over a law that allows more than 200 schools in WA to reject that child as a student – simply because they come from a rainbow family.
The seven-year-old girl thrown out of primary school for having gay dads has now graduated high school. There are still no signs of any legislation by WA Labor to protect LGBTQA+ staff and students in faith schools, and no commitment to a timetable of reform.
Brian Greig is a spokesperson for Just_Equal Australia.
