A ‘hierarchy of rights’ will leave many without recourse from discrimination
While it has been anticipated for several years now, the Religious Discrimination Bill 2021 is already making headline news for failing to protect individuals from discrimination based on religious belief. In today’s analysis, Helen Dalley-Fisher and Toni Hassan (@ToniHassan) of the Equality Rights Alliance (@ERAAustralia) provide a summary of ERA’s submission that explains how the Bill will undermine gender equality. Portions of this analysis also previously appeared in the Canberra Times.
It was a relief this year to see the federal government take steps towards implementing the two excellent reports on women's workplace safety by the Sex Discrimination Commissioner, Repect@Work and Set the Standard. Both tackle the cultural barriers to women's workforce engagement in the form of harassment and discrimination.
At the same time, it's great to hear that the federal government is interested in legislating to protect the right to freedom of thought, conscience and belief. Australia endorsed the right to freedom of thought, conscience and belief in 1980 by ratifying the International Covenant on Civil and Political Rights (ICCPR). After 40 years, it's high time we had a federal protection against religious discrimination.
It's therefore extremely frustrating to discover that the Religious Discrimination Bill 2021 not only fails to properly implement the freedom of thought, conscience and religion, but it also manages to exacerbate the sort of cultural barriers that the Sex Discrimination Commissioner's reports seek to overcome. It's an own goal of impressive proportions.
The right to freedom of thought, conscience and religion has two parts: the right to hold, not hold or change your beliefs; and the right to put thoughts and beliefs into action ('manifestation'). Under the ICCPR, the right to manifest religious belief is not an absolute right. The ICCPR says that the manifestation of thoughts and beliefs can be qualified, if necessary, to "protect public safety, order, health or morals or the fundamental rights and freedoms of others."
The Religious Discrimination Bill denigrates some rights
Section 12 of the Bill says that a statement of religious belief is protected, even if it would have been unlawful under other anti-discrimination legislation. That means that a sexist statement which would have been unlawful under the Sex Discrimination Act or one of the State discrimination acts is now fine, as long as it isn't malicious, and doesn't threaten, intimidate, harass or vilify.
Section 12 of the Bill actually reverses the limitation on the manifestation of belief as set out in the ICCPR by specifically removing protections under existing discrimination laws. Rather than limiting the right to manifest beliefs to protect the rights of others, the Bill actually limits the human right of others to freedom from discrimination, in order to protect the right to manifest beliefs.
In its current form, this Bill is capable of protecting sexist, racist and other discriminatory statements as long as they constitute a religious belief and are politely or benevolently expressed, no matter how serious the outcome to the person affected.
Why this matters to women
One of the greatest barriers to gender equality is tackling unconscious bias and discriminatory assumptions, norms, and cultures. Women are more likely to engage in the workforce and to be promoted to leadership if workplaces are supportive. Unconscious bias has been identified as key to the persistence of the gendered wage gap. Creating safe and empathic police and legal cultures is critical to improving reporting rates for sexual and gendered violence. Challenging those cultural norms which condone gendered violence is central to lowering overall rates of violence against women. Enabling environments are key to improving the participation of women and girls in STEM subjects and careers. Girls report not considering a career in politics because the dominant political culture is seen as unsafe.
In short, culture is key to achieving gender equality.
In its current form, the Bill is capable of providing protection to people who express views which contribute to sexist cultures in workplaces and in public through the provision of goods and services. The effect of ‘moderately expressed’ negative views on the ability of marginalised people to break barriers to equality is well documented, but ‘benevolent’ or ‘friendly’ statements will not be caught by the Bill.
Benevolent sexism is a key reinforcing factor in cultures which are unsupportive to gender equality. Identifying benevolent sexism as harmful can be difficult even for those who do not share the belief system of the individual. As academics Małgorzata Mikołajczak and Janina Pietrzak explain:
While the negative effects of hostile sexism are undisputed, there is less social acknowledgement of the negative consequences of benevolent sexism. These effects are documented in research, but remain obscured, to their perpetrators and targets alike, by the fact of their indirect influence.
It is important to note that the term ‘benevolent’ is intended here to convey the speaker’s intention, rather than the effects of the statement, which are far from benevolent. The most concerning element of benevolent sexism is that its effects are slow but deep, like the dripping of water on stone. Regular, low-level reiteration of well-intentioned sexism wears away at an individual’s ability to envisage and implement change. For an individual in a workplace or seeking access to goods and services, tackling deliberately hostile sexism is difficult enough, but tackling benevolent sexism requires a high level of insight, energy and perseverance, a job that will be made significantly harder under this Bill if the sexism is expressed as a religious belief and is therefore protected. Consider the position of:
… the woman who would like to apply for a leadership role in her workplace but is contending with an environment in which an influential manager is telling their peers that he believes that women should be subservient to men.
…the single mother who is told by her landlord that he believes marriage is for life and that her ex has rights to her.
… the survivor of domestic violence who has to sit next to a co-worker who expresses the belief that women should not be able to refuse their husbands sex in marriage.
…the young woman who wants to report a sexual assault but knows that the local police sergeant in her rural community believes that women who drink alcohol in public have sinned.
The situation is even more complicated for women and girls who face multiple and intersecting forms of discrimination, who find themselves having to address benevolent sexism alongside or in complex combination with racism, agism, ableism etc. Consider the position of:
... the woman with a disability who finds concentrating on their work difficult because their co-worker keeps bringing coffee to their desk as a kind gesture to the person who has been abandoned by God.
…the Aboriginal woman who is considering asking for a raise but knows the decision will be made by someone who has stated the belief that God made white people superior to people of colour.
In each of these examples the damage done by the statement of belief is in its contribution to a culture which is unsupportive of women. In such a culture, there is a real risk that women will self-censor or self-limit, i.e.: avoid taking risks or trying to break the mould, because the expression of belief makes her consider a positive outcome is unlikely and because the benevolence of the expressed belief makes opposing the sentiment socially and emotionally difficult.
The Bill will make it significantly more difficult for an individual to draw attention to or complain about inappropriate comments made at work, school or in the provision of goods and services or in complaints to qualifying bodies which confer professional qualifications. It may have the unintended effect of actively working against efforts to address unconscious bias and other cultural barriers to women’s human rights. Section 12 means that neither the Sex Discrimination Act 1984 nor any of the equivalent State or Territory legislation will protect women in these situations.
What happens now?
In the last few days, both the Senate Committee on Legal and Constitutional Affairs and the Joint Parliamentary Committee on Human Rights have issued their statements on the Bill. While both reports raise concerns on the Bill, overall the recommendation is to pass it into law with what amounts to minor amendments. It is therefore likely that the Bill will become law without many substantive changes. Just today, Senior Minister Simon Birmingham said the Government will see “as much discrimination removed possible [sic] while respecting” the ability of schools of faith to set their own ethos. Birmingham says a strengthened Bill will seek to protect gay students from expulsion without protecting trans students at the same time.
Religious speech and other manifestations of religious belief should not be absolutely protected at the cost of the human rights of others. This principle is recognised in the framing of art 18 of the ICCPR and should be recognised in the framing of this Bill. At present, the Bill removes existing protections for discriminatory behaviour in the form of statements of religious belief and makes no provision for balancing the freedom of religion against rights to non-discrimination.
In its current form, the Bill therefore has the unfortunate effect of pitting the freedom to manifest one’s belief against the right to freedom from discrimination of women, girls, people of colour, people with disability and others. Protecting the right to freedom of thought, conscience and religion does not have to happen at the expense of other rights or other people.
This Bill tells people of faith that their needs and rights are more important than the needs of other people. For a government which says it supports women's rights in the workplace, this Bill is a significant misstep.
This post is part of the Women's Policy Action Tank initiative to analyse government policy using a gendered lens. View our other policy analysis pieces here.
Posted by @SusanMaury