It is not uncommon during an election campaign for the culture war volume to be cranked up to eleven. Debates around the definitions of women and transgender athletes, Indigenous or Western history in the National Curriculum, and sexual morality in religious institutions are all coming to a head this week.
However, many engaging in these debates often neglect to notice where the consequential legal cases are commonly played out – where the rubber hits the ivory tower.
It is in universities and higher education where the culture wars reach their zenith, with the resulting implications of court decisions dripping into industries and communities below.
The complexities facing universities of evolving laws regarding gender
Take the just resolved US case of Meriwether v The Trustees of Shawnee State University. In this case Philosophy Professor Dr Nicholas Meriwether was disciplined by university officials because he declined a male student’s demand to be referred to using female pronouns. His objection was based on his philosophical and religious beliefs, but he did offer to compromise by using the student’s chosen name instead. The University refused and instead mandated that the Professor use the pronouns. The case went to court and the University eventually had to pay $400,000 in damages and rescind its policy.
Or the 2019 UK case of Felix Ngole, a social work student who was expelled from his course at Sheffield University for posting comments on his personal Facebook page in support of biblical teaching on marriage and sexual ethics. Felix was told that he “may have caused offence to some individuals” and had “transgressed boundaries which are not deemed appropriate for someone entering the Social Work profession.” A judge ruled against Ngole after a High Court trial in London in 2017, but then three appeal judges overturned the ruling indicating that it was in fact the University that acted in a discriminatory manner.
Or finally consider the case of Trinity Western University (TWU) v the Law Society of Upper Canada. TWU sought to uphold their faith ethos for staff and students through a Community Covenant Agreement, which included a clause which indicated their belief that “sexual intimacy should be confined to the sacredness of marriage between a man and a woman”. Two Canadian provincial law societies decided not to authorise graduates of the recognised and accredited legal degrees as able to practice in the provinces due to the College’s beliefs, claiming that they imposed ‘harm’ on LGBTI+ students. The Canadian Supreme court sided with the Law Societies in a 7-2 decision, with the dissenting judges noting the serious impairment of the decision on the religious freedom of TWU.
Although the examples above are all international cases, there have been similar cases in Australia of students, teachers and institutions being detrimentally impacted for offending the new orthodoxy. None of them has yet to reach the higher courts, but there is no doubt these higher education cases will arise within the next term of Parliament.
The value of faith-based institutions and what could be lost
The most likely institutions to be caught up are those operating in Victoria, where the Andrews Government has passed laws which attach serious risk of criminal prosecution to any conversations around gender dysphoria or sexual orientation that are anything but completely affirming. Andrews has also introduced changes to the Victorian anti-discrimination laws which strip religious institutions of the right to only employ staff who uphold their religious culture and ethos. There have even been whispers of Australian professional accreditation bodies considering a ban on recognising graduates from certain institutions who hold traditional beliefs.
Arguably there are many Australians who may support such legal stoushes, viewing faith-based higher education as a bygone relic they would happily see smashed into dust. However, it is worth considering what would be lost if these institutions were not adequately protected from the ominous lawyer-filled tsunami on the horizon.
Surveys show that graduates from faith-based institutions are three times more likely to enter human services industries, 2.5 times more likely to be involved in community service, and average significantly higher on student satisfaction than the larger public universities. They are the major providers of health workers, counsellors, youth workers, pastors, social workers, chaplains, and teachers. Faith-based higher education institutions therefore play a key role in not only the service of our nation, but also the rich diversity that makes up any strong education system in a liberal democracy.
Australia does need a religious discrimination bill
It has therefore been deeply concerning to see the failure of the 46th Parliament to plug the glaring legal gap in religious discrimination, despite the support of 82% of 48,000 respondents in the recent report from the Parliamentary Joint Committee on Human Rights. The Coalition was unable to fulfil this election promise, with a number of rebel Liberal MP’s choosing to cross the floor on the issue. Prime Minister Morrison has at least committed to reintroducing the legislation, though whether he would have the numbers are increasingly doubtful.
Labor, on the other hand, being guilty of ignoring the religious vote in the last election, risks making the same mistake. The Opposition leader has not committed to a religious discrimination bill, but has indicated to ACHEA that Labor will instead be seeking further consultation (apparently putting aside the last 5 years of exhaustive consultation on the issue). They have however committed to expansion of anti-discrimination legislation, and the ALRC review of religious exemptions in the Sex Discrimination Act, both which unfortunately provide little comfort to those facing imminent legal challenges.
If whoever forms Government isn’t able to find the right balance of religious freedom and competing rights by Christmas, the cultural wars will likely continue into perpetuity. If this is the case then – God help us – because our faith is certainly waning regarding the ability of the politicians to rise above the culture wars and get the job done.
Dr Jeannie Trudel is the chair of the Australian Christian Higher Education Alliance (ACHEA) and President of Christian Heritage College