The tensions between Australian state and federal anti-discrimination laws are being tested in Victoria with a case being brought against Melbourne Archdiocese Catholic Schools (MACS).

A MACS school in Melbourne refused to allow a male teacher, who identifies as “non-binary”, use his “preferred pronouns” and the title “Mx”.

According to The Guardian:

Two years ago, non-binary teacher Myka Sanders – who uses they/them pronouns and Mx for their title – asked Sacred Heart Girls College in Oakleigh, Melbourne if their gender identity could be recognised at school.

MACS told the teacher that using “preferred pronouns” and “non-binary” titles such as “Mx” goes against Catholic anthropology, stating that:

This personal decision by a staff member has consequences that affect the whole school community, as the decision illustrates an ideological shift from Catholic teaching and an inability of the staff member to uphold the vision and mission of the Catholic school.

Sanders initially went to the Victorian Civil and Administrative Tribunal, but MACS argued their defence relies not on state laws but on federal legislation, which lies outside the Tribunal’s jurisdiction.

This is an important distinction, given that religious protections in Victorian and other state anti-discrimination laws have been increasingly weakened over many years, while federal laws retain much stronger protections for faith-based schools.

The case has been moved to a magistrate’s court for a hearing later this year, but is expected to end up in the High Court of Australia, which would rule on the Constitutional questions raised by the conflict between state and federal legislation.

The apparent conflict between Victorian and Commonwealth laws might seem like a technical issue, but a High Court decision resolving this issue could have profound ramifications for religious schools in Australia.

Associate Professor Neil Foster writes that the case:

has the potential to require the courts hearing the matter to address the question (not so far resolved) whether an organisation can rely on a religious freedom right granted by Commonwealth law, if that right is not recognised by State law.

HRLA defends religious schools and churches from state anti-discrimination laws that threaten their right to employ people who share the tenets of their faith.

Similarly, the right of a faith-based school to teach and express their beliefs about gender and identity is fundamental to freedom of religion.

HRLA will monitor this case carefully and continue to speak up for the right of people, both individually and collectively, to teach and practice their faith.