Religious schools: a transparent right to discriminate?

Discrimination laws have long contained exceptions for otherwise unlawful discriminatory conduct. An increasing site of tension has been the exceptions granted to religious schools. These schools maintain that they should be able to adopt an approach to education which reflects the faith-based ethos of the school community. However, there are concerns that some faith-based approaches can cause harm to, and exclude, LGBTIQ+ staff and students. An approach that has been under active consideration in Australia is to allow some discrimination by religious schools so long as they give public notice of their policy of doing so. This ‘notice provision’ exists in several state and territory discrimination laws, and has been considered in recent law reform inquiries across the country. In this paper, we challenge the underlying idea that prior notice justifies discriminatory conduct. We argue that such an approach sits uncomfortably with the conceptual and theoretical underpinnings of discrimination law, and that transparency is an insufficient reason to permit discrimination. Notice provisions appear to evade, rather than answer, the question of how to balance competing human rights to religious freedom and equality. As such, we argue that discrimination by religious schools cannot be justified on the basis of notice.