Allegra Spender pushes to remove religious exemptions against LGBTIQ students, teachers

The Sex Discrimination and Fair Work Amendment (Equality in Treatment in Religious Schools) Bill 2026, introduced on October 12, seeks to repeal the offending exemptions in federal sex discrimination law, as well as removing the related provisions in federal workplace relations law. It also extends protections to associates of those who are captured under the current exemptions.

Section 38 of the Sex Discrimination Act 1984 (SDA) makes it lawful for religious education institutions to discriminate against a teacher, student or contract worker due to their “sex, sexual orientation, gender identity, marital or relationship status or pregnancy”.

The proposal took centre stage in 2018, as the national religious freedoms debate took off prior to then-Coalition Prime Minister Scott Morrison shooting it down.

Morrison’s push to establish a religious freedoms regime in 2018 uncovered their existence. His years-long religious crusade was defeated after debate on these exemptions.

Labor PM Anthony Albanese promised to progress the reform in 2022, but changed his mind.

Spender, independent MP for Wentworth, is pushing popular reforms, despite far-right commentators claiming it as an attack on religious freedom.

“These exemptions have already been removed in state and territory law, to varying degrees, but there are no national standards,” Spender told NSW Parliament on October 12.

“The Australian Law Reform Commission’s 2024 review found that religious schools could still maintain their ethos without this exemption.

“At its heart, section 38 of the Sex Discrimination Act is repealed in its entirety and replaced with a far narrower provision,” Spender said in her second reading speech on her private member’s bill.

“Protections are also extended to a person’s associates ... This means a child cannot be treated differently just because she has two mums.”

The bill repeals the current provisions affecting students, teachers and contract workers in section 38, replacing it with a provision that allows institutions to preference staff based on faith in two ways — at their initial employment and in the promotion of senior leadership roles such as “principal, vice-principal, religious education teacher, chaplain” or any other comparable role.

The bill inserts section 7AAA into the SDA, which makes it unlawful to discriminate against an associate, such as a spouse or relative, of a person protected under the act. It removes provisions that permitted discrimination based on sex, sexuality or gender.

It also repeals provisions in the Fair Work Act 2009 that extend discrimination into workplace agreements.

“But preferencing is not a licence to discriminate,” Spender said. “A school can choose a candidate because of their faith. It cannot fire someone because of their sexuality. Many students have wonderful, formative experiences at religious schools. Many LGBTQIA+ students come out to their friends and teachers in these schools and are accepted. But … this is not everyone’s experience.”

The exemptions in section 38 of the SDA relating to sexual orientation and gender identity were inserted into the act when a 2013 bill added anti-discrimination provisions into the law that related to sexual orientation, gender identity and intersex characteristics. The exemptions in respect of gay and transgender individuals joined pre-existing ones that permitted discrimination based on sex.

The October 2018 Ruddock review into religious freedoms recommended tightening these exemptions in federal law, which drew attention to and then condemnation of the laws.

While Morrison initially tried to downplay the outcry, he reversed course and promised to repeal the discriminatory measures targeting students. But Morrison, a Pentecostal, attempted to progress three versions of the Religious Freedoms Bill — two in 2019 and one in 2022 — and the removal of any exemptions was forgotten.

Each version of the religious freedoms legislation was increasingly watered down.

Three years of debate on these laws made it clear that his measures sought religious privileges.

The public debate over religious concerns is different to the present, with the conservative push to insert the controversial International Holocaust Remembrance Alliance definition of antisemitism into all levels of government to curb criticism of Israel and its genocide.

At the beginning of the decade, arch-conservative Christians were pushing to ensure that their religious beliefs trumped everyone else’s. The five-year-long religious freedoms debate came to an abrupt end in early 2022 when Morrison shelved the bill at the eleventh hour.

This was because five Liberal MPs crossed the floor to support an amendment by independent MP Rebekha Sharkie, which sought to make it unlawful to expel gay and transgender students. Morrison was not prepared to allow this change for transgender students.

Albanese promised to remove exemptions for students and teachers in the lead-up to the May 2022 election.

In March 2024, Labor had two draft laws — one to remove the exemptions and the other to progress religious discrimination protections. But as it did not receive Coalition support, both were dropped.

Spender told parliament that since 2016 there have been 10 inquiries, more than 260 hearings and more than 70,000 submissions related to religious discrimination and the removal of the exemptions. She questioned why four years after federal Labor made a commitment, nothing had been done.

She said that while the removal of the exemptions will not encroach on the way in which religious educational institutions operate for the most part, the repeal of the law is necessary because, as it stands, the message it sends rings out “well beyond the school gate”. The existing laws say that discrimination against LGBTIQ people is permitted on some occasions.

“Australians expect equality in front of the law, not least from those institutions that are partly funded by taxpayers,” Spender added. “Getting this balance right is not easy, but our laws need to be applied fairly across our country. I think there is a practical and sensible pathway through this … that this parliament could unite around.”

[Paul Gregoire writes for Sydney Criminal Lawyers, where this piece was first published.]