Friday, October 18, 2013

An appalling decision

The Human Rights Review Tribunal has ruled in the case of Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [PDF]. The case was about Geno Sisneros, who had been refused permission to become an Anglican Priest because he was gay (or because he was in a de facto relationship rather than single or married). On the face of it, the decision should have been open and shut: sexual orientation is a prohibited ground of discrimination. It is illegal for a qualifying body - e.g. one conferring a qualification to become a priest - to refuse to confer a qualification "by reason of any of the prohibited grounds of discrimination". While there is an exemption to protect religious independence, it applies only where the discrimination is on the grounds of sex or religious belief. The discrimination was not on those grounds. Therefore it was illegal.

The HRRT thought differently, effectively ignoring the clear meaning of the law and reading in wide latitude to discriminate for religious reasons. If they can cloak it under the guise of religion, its OK. So, churches can now discriminate against the disabled, and on the basis of race, simply by saying that hate is a religious tradition.

In the process, they seem to have stepped away from the substantive interpretation of discrimination adopted by the Courts, under which discrimination is assessed on the basis of its effects, not intent (so an action is discriminatory if it materially disadvantages someone on the basis of a prohibited ground, regardless of whether it is driven by prejudice or not). But it gets worse: this sort of construction - discrimination is illegal unless for a specified reason - is universal in the Human Rights Act. And there are other religious exemptions, which now apparently apply more widely. So under the HRRT's interpretation, churches can now refuse to employ gay people, and religious schools can expel gay students (or ones with children).

I'm hoping that there will be an appeal, because this is simply untenable. This isn't the Middle Ages. Religious groups must obey the law like everybody else. And that includes the Human Rights Act and its principles of non-discrimination.