In Indiana a couple of weeks back, a law was passed that allows people to refuse to provide services under the auspices of ‘religious freedom’. This bill was taken to be primarily aimed at discriminating against lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people. Though there has been much outcry about Indiana’s law, few appear to realise that Australian law effectively enshrines religious discrimination against LGBTQI people in numerous ways. In particular, the primary and secondary education sectors are a minefield of homophobic and transphobic law, institutional practice and everyday discrimination. In this, LGBTQI people are the collateral damage of the neoliberal push towards privatisation.

Neoliberalism has arisen as the dominant form of economic policy since the 1980s in Australia and across the West. This has included the privatisation of state services, the deregulation of markets, the destruction of unions and the financialisation of everyday life. As Marxist economist David Harvey puts it in A Brief History of Neoliberalism, though states have become constrained in the kinds of services they provide, the neoliberal state nevertheless guarantees free markets, so much so that ‘if markets do not exist (in areas such as land, water, education, health care, social security, or environmental pollution) then they must be created, by state action if necessary’.

In the field of education in Australia, this has led to the inequitable public funding of private schools. In 2014 in Victoria, there were 333,486 students in the independent and Catholic school sectors; 563,549 in government schools. Australia-wide, about 36 per cent of students attend an independent or Catholic school. This is much higher in the capital cities of Sydney and Melbourne, where close to half of students are educated in non-government schools. Whilst a small percentage of private schools are non-religious the vast majority have an affiliation with a religion. In some cases this is a direct relationship with the religious organisation whereby all staff and students must belong to that religion.

The majority of Catholic and independent schools, however, have at least some students and staff with more diverse religious backgrounds. A growing perception that government schools are broken and a perception that user-pays systems will buy better outcomes has contributed to the stampede of families seeking educational alternatives. This may even mean a faith-based education for a child of a different faith, or no faith at all.

It is up to individual schools to decide whether they will enrol students from different religious backgrounds, or employ staff from diverse faith backgrounds. Exemptions to the anti-discrimination legislation allows for non-government schools to discriminate on religious grounds. More pertinently, current law allows for students and staff to be held to standards of ‘morality’ dictated by religious rather than secular educational authorities. As the website for the Victorian Equal Opportunity and Human Rights Commission states:

Religious bodies and religious schools can discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, martial [sic] status, parental status or gender identity where the discrimination conforms to the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of people who follow the religion.

Other forms of discrimination covered by federal acts such as the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975 are not within the ‘allowed’ forms of religious discrimination. This results in a situation where sexuality becomes the main site of allowable prejudice. Ideas of moral purity and retrogressive family values are able to be imposed upon large numbers of people by religious organisations that would otherwise have much narrower reach. To state that the existence of LGBTQI students and teachers can cause injury makes a specious claim to the vulnerability of religious people. We would argue that this in fact exposes hypocrisy – LGBTQI students and teachers are inordinately vulnerable to bigotry which is legislated against, and generally reviled, in the broader secular community.

Practically speaking, schools servicing half of the community need to draw from a diverse pool of employable teachers and fee-paying students. Or to put it another way: for teachers, half of the job market exists in religious schools. Moreover, as the recently stifled Gonski debate revealed, taxpayer money is channelled into the private school system at blatantly unjust rates. A Victorian government school receives an average of $13,787 per student whilst their private school peers have a profligate $8322 of public funds spent on them each year. In 2012–13, funding for private school students increased by 18.5 per cent in Victoria, while it fell by 2 per cent for state students. Much has been written about the gross inequality that this system props up, but has been little discussion of taxpayer-funded homophobia and transphobia this enables.

Effectively, governments are relying on private schools just as they fund the private health sector. There is an outsourcing of education. Religious organisations are the beneficiaries of successive failures by both major parties to prevent the continued deterioration of the government school sector. The upshot of this is that LGBTQI staff and students are increasingly left at the mercy of moral sensibilities dictated by religious organisations.

In their 2010 study of discrimination by religious schools, University of Melbourne researchers Carolyn Evans and Beth Gaze found that many school leaders instituted a defacto ‘don’t ask, don’t tell’ policy in their schools for both students and staff. One principal of an Anglican school who participated in the study said of their hiring practices that if the candidate ‘exhibited things that made me think that they were of a gay nature I wouldn’t want them in the school.’ Other respondents were more circumspect but underlined that sexuality was of ‘a private nature’ and that there would be problems at school if students or staff were openly gay or lesbian.

It might seem relatively benign to ask staff to keep their sexuality private. Certainly, no one expects teachers to relate sexual experiences to students in their classrooms. But heterosexuality is relentlessly public and often celebrated. A straight, married teacher would never be asked not to wear a wedding ring or go by the salutation ‘Mrs’, whereas a teacher in a same-sex relationship may well be asked to keep that fact private. This quotidian discrimination amounts to enforced closeting, at best. For students, the result is a resounding silence about the possibilities for LGBTQI lives. This is unforgivable given that we know that young LGBTQI people attempt suicide at rates of between 3.5 and 14 times the rates of their heterosexual peers. ‘Don’t ask, don’t tell’ also creates an underclass of staff. As an LGBTQI staff member, one’s rights are not protected. It is cold comfort if colleagues are not outwardly homophobic if it would only take a few parent complaints for a teacher to be summarily sacked.

Without legal backing, LGBTQI staff and students are left in a precarious position, enabled by the neoliberal marketisation of education. With over a third of Australia’s students in private schools, this presents a formidable challenge to the left. The battle to create a more equitable education system must include legal change of anti-discrimination policy, as well as the vital funding reforms called for by the Gonski report. The Gonski reforms are important, but cannot fully address the fundamental restructuring of the education system of the neoliberal period. In the name of better test scores, Christopher Pyne and his ilk push ideological educational reform which is inequitable on more than economic grounds. The appointing of Kevin Donnelly, a conservative who wears his homophobia on his sleeve, to review the National Curriculum is one example of how vulnerable LGBTQI people are under neoliberalism. Left activism must therefore aim at creating a new hegemonic common sense, one that upholds the secular, inclusive values of public education as among our most precious cultural heritages.