The Sydney Mardi Gras festival has already started and this year, the traditional parade takes place on 7 March. It's timely then that a Sydney Independent MP has drawn attention to a topic of concern for the gay and lesbian community by calling for greater protection for gay and lesbian teachers from discrimination in non-government schools.

According to a report in the Sydney Morning Herald, Mr Alex Greenwich, the Member for Sydney, intends to introduce a bill in the NSW parliament to amend the Anti-Discrimination Act 1977 (NSW) (the Act), which currently allows non-government schools in NSW to discriminate against employees on the grounds of homosexuality.

For the most part, the NSW Act is a State replica of similar provisions which exist at a Federal level. See our article on ethos clauses in employment agreements for more information about the grounds on which religious bodies and faith-based educational institutions are allowed to discriminate against employees under the Sex Discrimination Act 1984 (Cth) and Fair Work Act 2009 (Cth).

However the NSW Act goes much further, exempting 'private educational authorities' (that is, private schools) regardless of whether they are faith-based educational institutions or not, from a number of the discrimination provisions in matters of employment and the provision of educational services. That means that on the face of it, it is legal for a non-government school in NSW to discriminate against an employee on the grounds of his or her homosexuality, transgender, and marital or domestic status:

• in the terms of his or her employment contracts;
• by denying, or limiting access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
• by dismissing the employee or subjecting them to any other detriment.

For many schools, their ability to refuse employment to a homosexual person, or to treat them differently to non-homosexual staff, won't be expressly stated in any recruitment or selection policy, but this will likely be justified under criteria such as 'cultural fit' or 'being inconsistent with and supporting the school's values'.

Schools choosing to follow this path in NSW should beware, aggrieved employees may still have a right to take action under the federal Sex Discrimination Act . The federal Sex Discrimination Act only exempts faith-based educational institutions, which is taken to include  educational institutions with religious affiliations.  The Fair Work Act, which on the face of it, protects employees and job applicants from adverse action taken by an employer on the basis of (amongst other grounds) homosexuality. The Fair Work Act has an opt-out provision for any exemptions which are listed in a State's discrimination legislation, if the matter occurred in that State. So the 'private educational authority' exemption in NSW would allow independent schools in NSW to discriminate against homosexual people without the protection of the Fair Work Act.

According to the Sydney Morning Herald, Mr Greenwich believes it is unacceptable in 2015 to have laws that allowed discrimination in employment on the basis of sexuality.

The article refers to letters that Mr Greenwich has written to NSW Premier Mike Baird and Opposition Leader Luke Foley in support of changes to the Act. The Sydney Morning Herald quotes Mr Greenwich in the letters as saying: 'forcing teachers to hide their sexuality for fear of losing their job is bad for both teachers and students. If teachers or other staff are fired for their sexuality, this will impact significantly on same-sex-attracted students while encouraging bullying and homophobia.'

This is not the first time Mr Greenwich has campaigned for changes to the Act. In 2013 we reported that he introduced a private member's bill to amend the Act to prevent non-government schools from discriminating against students on the basis of sex, transgender status or homosexuality.

If Mr Greenwich's proposed amendments to the NSW Act succeed in removing the exemptions which currently apply to non-government schools, the amended Act would actually become better aligned with the present Federal legislation, in that only religious bodies and faith-based educational institutions are able to discriminate against homosexual teachers. This would certainly make it clearer for independent schools which are not faith-based, to determine the risks of implementing discriminatory employment practices.

Mr Greenwich's bill has not yet been introduced into Parliament.