LGBTQ activists have fought hard to have discrimination against their communities outlawed. But when these laws are passed, they are usually watered down with special exceptions to let religious groups be openly homophobic and transphobic.
These same groups are routinely given taxpayer funding to run schools and public services. Giving special treatment to groups that openly hate LGBTQ people has predictably awful consequences for queer people – especially children – across nations.
So what are the laws?
Around 100 countries now have some forms of anti-discrimination laws or constitutional protection. However, most only cover some areas, such as employment rights.
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The battle for even essential protection is by no means won. A report from Human Rights Watch in 2019 said that 69 countries still have anti-gay laws. However, in many countries, our legal rights to not be discriminated against are now somewhat protected.
What are the exceptions?
Sadly, that protection is less solid than many people think. Bias against LGBTQ people is actually legal in some circumstances. Exemptions to equality laws exist in almost every country that has them.
Exceptions to these laws are not always a bad thing. Some, such as positive discrimination or in domestic violence shelters, are widely accepted. But religious exceptions to anti-discrimination laws often have very serious consequences for the LGBTQ people affected.
What are the consequences?
The result is that the right of religious groups to discriminate on the basis of sexual orientation or gender identity is protected by law. It can also apply to people with religious beliefs. Practically, it makes LGBTQ people’s human rights conditional.
It’s not just “not forcing churches to take gays”. Many other groups and groups come under the umbrella. Daycare centers, homeless shelters, schools, adoption agencies, universities, and charities can all be affected. It is often legal for religious groups to run them with bigoted practices.
Religious groups often receive tax benefits and government funding to provide public services. That means that taxpayers fund groups that are openly prejudiced. LGBTQ employees experience hostile work environments and can even be fired for their sexual orientation or gender identity. Homophobic workers, on the other hand, can be legally protected.
Religious schools, LGBTQ children and the law
Religious schools are some of the worst examples of misuse of religious privilege. The exceptions mean that schools in many countries can openly teach homophobic beliefs and be protected by law. A secular school could not.
Bigotry in religious schools is common. In many countries, state schools can be religious schools. In others, they are treated as such. In both circumstances, they often receive state funding as part of the national education system.
That means that the state is often financially sponsoring homophobia and transphobia. Even in the case of entirely private religious schools, a certain number of children will be LGBTQ. Those children often have no choice but to attend the school. Having religious parents does not mean a child will be any less harmed by such hostile places.
Experiencing homophobia, transphobia, discrimination, and bullying has been found to increase the risk that LGBTQ youth will attempt suicide. It also affects their health. These attacks are often either tolerated or openly approved of within religious schools.
Attending schools that are accepting lowers the risk of suicide. So does peers and adults being supportive. We all accept the duty of the state to get involved when a child is being physically abused, but religious schools abuse LGBTQ children every day, across countries, entirely legally and with taxpayer funding.
Why special treatment for religion?
Religious groups often have uniquely privileged positions, even in secular countries. Freedom of religion is an important civil right. However, it is often used not only for protection from discrimination but as a stick to beat LGBTQ people and others.
The countries in this article all pay lip service to equality and human rights, despite their acceptance and often sponsorship of intolerance and inequality.
We often allow discrimination from religious groups and individuals that would not be accepted from any other group. Only they are allowed to ignore people’s human and civil rights.
Religious groups all over the world have fought in courts for their religious freedoms including the “freedom” to discriminate against LGBTQ people.
No group should be legally permitted to ignore civil and human rights. No group should be allowed to endorse bigotry under the guise of religious freedom.
USA
The US has freedom of religion written into its constitution. However, in many cases, freedom from discrimination has become freedom to discriminate, especially against LGBTQ people who are currently under attack more broadly. The US has seen states bring in over 300 anti-LGBTQ laws this year, most of which target trans people, especially children.
Legally, there is some national protection against discrimination. Employment law is covered by Title VII of the Civil Rights Act 1964. Housing is partially covered by the Fair Housing Act, although it only protects LGB and/or HIV-positive people.
Some states have some form of local or regional protection for LGBTQ people, which varies massively by area. 29 states have no laws at all that outlaw discrimination.
It was only in 2020 that Title VII was found to include sexual orientation and gender identity (against older rulings). It still has an explicit exemption on religious grounds.
Multiple court cases have confirmed that employment rights often do not apply when someone is working for a religious group. They have shown that discrimination is legal on the grounds of gender or sexuality, and even age or disability. There is an ongoing case challenging whether this lack of rights applies to all employees of a religious group, or just those who take part in religious duties.
Religion v Human Rights in the USA
It’s not only in the context of LGBTQ rights that the US tends to prioritize people’s religious views over other people’s essential rights. One famous example is the Hobby Lobby case, a chain of craft stores owned by Christians.
They were supposed to cover birth control under health insurance for their employees. They won the right in court to not provide some types of birth control due to their religious beliefs. Their personal religious views trumped their employees’ right to healthcare.
What future for LGBTQ rights?
The outlook in the US is not entirely bleak. A federal Equality Act is supported by President Biden and could soon be law if it passes the Senate. This is currently looking unlikely. The Act is being opposed by some conservative and Christian groups.
Various state Religious Freedom Restoration Acts are being floated which supposedly aim to increase religious freedoms, but will instead serve to erode the rights of LGBTQ people.
UK
In the past, the UK has had good LGBTQ rights, although in recent years there has been a movement against trans people. There is one equality law that covers the whole of Great Britain – the Equality Act 2010. It has a religious exemption making it entirely lawful for religious groups to discriminate based on sexual orientation.
Some cases of religious groups trying to use the exception have been found in same-sex couples’ favor, but it is mainly used to defend bigotry in schools and colleges. It has a severe effect on young LGBTQ people.
Legal discrimination in schools
Modern Britain is not a very religious country. Over 50% of Britons have no religion, but around a third of state schools are faith schools. Children with non-religious families often end up at faith schools.
This could be because they are near home, no other schools are available or the school can accommodate their disabilities. That means that parents of disabled LGBTQ children may have no choice but to send their child to a school that teaches prejudice and homophobia.
A National Secular Society report found that “almost all major religious institutions that run schools in the UK consider same-sex relationships to be sinful, and do not recognize same-sex marriage”.
What effect does this have on LGBTQ pupils?
Religious exceptionalism like this means that pupils spend their academic lives in deeply homophobic and transphobic environments.
While religious schools are not allowed to expel LGBTQ students in the UK, they are allowed to teach their own religious beliefs. Practically, that gives them a legal loophole to teach bigoted and prejudiced views.
Reports by LGBTQ students show the difficulty of being forced to stay closeted and being often exposed to homophobic and transphobic abuse. All of which is completely legal.
LGBTQ youth are already more than four times more likely to attempt suicide. For those who experience discrimination, the chance of committing suicide doubles compared to those who don’t. Attending a school that is LGBTQ-affirming lowers that rate.
Australia
LGBTQ rights in Australia are generally well-protected, with one big exception. Despite around 40% of people in the 2016 Census not giving any religious affiliation, religious groups have an unfair amount of power when it comes to education. Approximately one in five pupils in Australia attend Catholic schools. A significant number do not come from a Catholic background.
Australian Catholic schools receive funding and benefits. They are considered practically equivalent to state schools and are often the only schools LGBTQ pupils can attend.
However, LGBTQ staff and pupils have very few rights. It is legal to openly expel a pupil or fire a member of staff for being queer, such as a famous case in 2020 of a Christian teacher fired when she married her female partner.
While these laws in practice mostly matter in schools, they also affect other walks of life. For example, an Australian rugby player, Israel Folau, said publicly on social media that god’s plan for homosexuals was hell. His code of conduct required him not to discriminate and he was sacked.
He took Rugby Australia to court claiming that his bigotry was his religious beliefs and therefore protected. Rugby Australia and Folau settled out of court.
What legal protections do queer Australians have?
Australia has a national equality act, the Sex Discrimination Act 1984, which was changed in 2013 to include LGBTQ people. It has an exemption that legalizes discrimination if it is “in good faith” in order to avoid upsetting religious believers.
That means that pupils often have no choice but to attend homophobic schools where they are openly discriminated against and harassed.
LGBTQ young people in Australia are five times more likely to attempt suicide and young trans people are 15 more times. These numbers are heavily influenced by stigma and lack of acceptance. No doubt being forced to stay closeted to avoid expulsion, or hearing homophobic and transphobic views from teachers and peers, can only add to the struggles of young LGBTI people.
The legality of religious bigotry in school has been widely opposed by Australians from every party. Several promises have been made by successive governments to change the law so that students could not be expelled for their sexual orientation or gender identity. As yet there has been no change.
What does the future hold?
Unfortunately, Australia is currently considering the Religious Discrimination Bill 2021, which supposedly aims to decrease religious discrimination. It will actually take away other people’s rights to be free from discrimination, even to the extent of sacking people if they support LGBTQ rights. Despite it now being watered down, it will still legalize homophobia to an even greater extent.
Canada
Canada has an excellent LGBTQ rights record. In Canada, the constitution itself prohibits discrimination, which has been extended to LGBTQ people. The Canadian Human Rights Act also provides protection to LGBTQ people. However, they both only apply to the government itself, and to certain industries.
Most territories within Canada have their own human rights acts that provide more protection to LGBTQ people. These are also often limited by religious exemptions, which give religious groups the right to behave in ways that would be illegal for any other group.
Education and religious discrimination
This functional right to discriminate is used by religious groups across Canada. Like other countries, religious schools are allowed to ignore civil and human rights. This has included some of the hundreds of religious schools across Canada that receive public funding firing a teacher for being a lesbian.
In another case, a teacher was fired for “any sexual activity outside of heterosexual marriage”. Most recently, a pastor in an ongoing case is trying to sue the Baptist church for firing her in retaliation for coming out as trans.
However, public services such as schools open to the general public are required not to discriminate. The safety and human rights of LGBT students in some situations has been found in court to be more important than “religious freedom” to discriminate. While it is still being fought in courts in Canada, recently more and more court cases have decided on the side of human rights.
Religious groups should be free from discrimination – but they should not be free to discriminate against LGBTQ people. Huge amounts of harm and suffering is caused when our safety and right to exist without harassment come second.
