by Christopher Brohier
News Weekly, July 1, 2017 http://www.newsweekly.com.au/issue.php?id=477
Let me introduce Emily. Emily is not her real name, but she is a real person, and the issue of Safe Schools became real to me in a new way when I met Emily.
She sat across my chambers table with her mum, and she told me what it was like being in a classroom, in a Safe Schools sex-education class, where you’re taught differently. Because when she was in a Safe Schools sex-education class, talking about gender issues, one of her classmates who knew she didn’t agree with what was being taught told the teacher this. The teacher said: “Well, let’s see if we can change her mind by the end of this.”
In the history class, the teacher was teaching about the civil rights movement and drew parallels with the current issue of same-sex marriage. In her school they have lunch meetings for the Safe Schools program, and many of her friends go to that. She said she feels alone and depressed, and is sometimes even afraid that she’ll be beaten up for her views. And that impressed me as to what it was like being a person with a biblical or true worldview living in a Safe Schools environment today.
Five issues of defence
I want to consider some legal issues about how we can resist this imposition. I will review five related issues and suggest possible remedies: the bullying of children who oppose the Safe Schools program; discrimination against teachers and students who oppose the program; the duty of care of educational authorities as to the use of cross-gender toilets; the liability for education authorities who are complicit in transitioning of children; and the duty of care for educational authorities in cases of gender dysphoria.
Let’s look first at the issue of the duty of care of a school. A school holds what the law calls a “non-delegable” duty of care to its students. That means that it’s not enough for a school to employ competent teachers and say they’ve discharged their duty, but a school has to take reasonable care even while those teachers are taking care of the students.
So, the education authority is responsible to care, and this responsibility exists whenever the schoolmaster/pupil or school teacher/pupil relationship exists. Nor is the responsibility limited to school hours. In the case of the Catholic Church v Koffman, a 12-year-old boy was injured by the conduct of other students about 20 minutes after school, and the court held that the relationship between schoolmaster and pupil was still existing: it didn’t end when the bell went.
The court has said that, where there is a relationship of power and intimacy between students and teachers, and these cases are usually in cases of sexual abuse, the duty of care holds. In a Safe Schools class there is a power relationship between the teacher, who’s communicating certain doctrine, and the students, and this is an intimate relationship because in this program the teacher is talking about the most intimate details of life.
Late last year, my wife and I sat with a group of concerned Chinese mothers. They have primary school children, and one of them said that in their classrooms, students are not just taught about sexual issues, but are taught to experiment in the areas that give them pleasure. This is actually occurring in Australia’s classrooms.
A difficulty rises where there’s exercise of statutory power. Recently the High Court heard a case where the hospital let a man out who had been admitted with mental issues. He was released and then he murdered his friend. The hospital was not held liable because it had exercised its statutory duty, which required it to keep a person under its protection only for a minimum amount of time. But the education acts contain nothing that voids the deposition of duty of care.
Another difficulty arises in negligence claims, as negligence is not actionable without proof of damage. Actual physical or psychological damage must be demonstrated, the trouble being in these cases that harm may not show up immediately.
In a recent paper on issues of school liability, the director of Legal Services at the South Australian Department of Education and Child Services spoke of what it was like in schools these days. She said as soon as a parent was dissatisfied with a site leader’s response, they rushed off to engage the services of a lawyer. Now that was put in a negative context, but in my view, this is something we may have to adopt.
If a parent is worried, they should send a warning letter – preferably through lawyer – to say “this is happening, we are concerned, we believe you are breaching your duty of care, if there is loss we will sue you”. An early-warning epistle may cause some concern and consternation, and hopefully, the headmaster will do something!
Next is the question of action for assault and battery. Now an assault, in law, is where one person causes another person to have a reasonable apprehension of harm; there doesn’t need to be any physical injury. That is battery, where there is physical interference. These are both criminal offences. That might be an avenue of redress, if there’s actual physical bullying at school.
Heightened risks with shared toilets
The next issue is the duty of care of school authorities that allow boys who identify as girls, for example, to use the girls’ facilities. A case was brought last year in NSW over an incident that took place in 2013. The mother of a disabled girl, who was allegedly abused by four boys, sued the Education Department. The boys allegedly lured the girl into a toilet, saying they were going to play a game. Two boys took watch outside, while two stuffed her mouth with toilet paper so she couldn’t scream while they abused her. Now if that happens where there’s separated toilets, the risk is heightened where there are shared toilets.
What the mother alleged was that the department knew, or ought to have known, that the child suffered from disabilities that made her particularly vulnerable, and that leaving her unsupervised exposed her to harm. That sort of approach is very fitting to a case that might ensue where boys are allowed to use girls’ toilets, because the allegation would be that it was known that if you put a pre or pubescent boy in a toilet block with girls, something could happen, and the teachers of the school should know.
The next issue is discrimination against teachers and students. Now, there are lots of discrimination acts in Australia; the Sex Discrimination Act and the Racial Discrimination Act federally, and each state has its own discrimination act. Discrimination is generally the unfavourable treatment of a person on the basis of a protected attribute. I want to suggest that we start to use the discrimination acts as a sword, instead of just seeing it as something that’s used against us. Because our side of the debate has traditionally been on the defence, we have allowed the other side to conduct the attack.
We can start using this legislation, because religious belief or activity is protected in Tasmania, and sexual orientation includes heterosexual orientation. Take the example of Emily: It could well have been discrimination against her for the teacher to say: “Well, we’ll see if we can change her mind by the end of the class.”
The next issue is the liability of authorities that are complicit in medical transition without parental consent. Now, childhood gender dissatisfaction often remits; it is not synonymous with cross-sex behaviour. Therefore any school that facilitates medical treatment, without or even with parental consent, will expose itself to a serious risk of a negligence claim in the future.
The problem here is that you have to wait for some of these children to go through the process, suffer the wrong, find out they were wronged, and then take the action; you’re talking about a 10–15-year lead time, and the harm is already done.
Lastly, what duty of care does a school authority have to a child with gender dysphoria? It goes back to the general definition of a non-delegable duty, and the school would have to take expert evidence as to handle each child.
All of these matters are complex and fact sensitive, so early and expert legal advice is needed. For just this purpose we have formed a legal group called The Human Rights Law Alliance. We’ve been formed with the help of the Australian Christian Lobby to provide expert and early legal advice on matters of religious liberty particularly, but touching these battles.
I want to suggest that we have to do three things. First, we have to plan. We have been talking about having a workshop with lawyers, teachers, and doctors, so that we can properly plan how to run actions. Second, we have to resource those actions. This is going to cost money to do. And third, we need to let parents know that we can act. Because, if we act thoughtfully and properly in the courts, we can win.
Christopher Brohier is an Adelaide-based lawyer. This article is based on the address he gave to the NCC National Conference in Melbourne in January 2017.Share