What’s in the Equality Bill?

In the world of Malta’s secular Christian organisations and faith schools, a cultural war is being waged against the Equality Bill, a new set of rules that places a renewed onus on employers to curb discriminatory practices.

The pro-life Life Network Foundation, the Catholic schools commission, and former Nationalist politicians like the conservative Tonio Borg have stepped up the opposition.

The schools claim they will be prevented from employing Catholics to teaching positions, because the law presents them with a challenge: candidates to a teaching profession in which the Catholic faith is not a genuine requirement, could be able to challenge schools’ employment of less meritorious candidates.

Firebrands like pro-life activist Miriam Sciberras are demanding special treatment for Catholics through a conscientious objection clause that would allow professionals, like doctors, to refuse medical treatment they would deem contrary to their faith. She claims these people are being “threatened into compliance” through an act of Marxist indoctrination.

In her long list of protestations, Sciberras claims the “evil” anti-discrimination law could lead to people taken to court for wearing a cross around their neck, or schools forced to close unless they change their curriculum.

But little in the Equality Bill seems to suggest this nightmarish scenario.

From EIRA to Equality

Malta’s chief employment rulebook, the Employment and Industrial Relations Act, includes so-called ‘protected characteristics’ where any discriminatory treatment on marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association is illegal.

The same law already gives leeway to employers on particular roles that require a particular skill set when “such a characteristic constitutes a genuine and determining occupational requirement provided that the objective is legitimate and the requirement is proportionate.”

For example, an ambulance driver would be required to be able-bodied enough to drive an ambulance in high-pressure situations, therefore ‘excluding’ persons with certain disabilities.

The same rules allow ethos-based employers, like church and faith schools, to recruit people for a role which objectively requires the employee to hold the same faith.

The Equality Bill reinforces the EIRA’s provisions but says the schools can differentiate “limitedly” on the basis of faith if there is a “sufficiently genuine and legitimate justification”. That means that it is only on those roles in which there is a  genuine, legitimate, and justified purpose, specifically educators of religion, that faith may be considered as a factor in their recruitment.

The law will make it illegal to discriminate against anyone when it comes to access to goods and services, advertising, financial services, education, trade union or association affiliation, jobs and recruiters, or carrying out business.

It will mean that nobody can get “less favourable treatment” when it comes to supplying goods and services.

Wide-ranging exceptions

There are special protection or benefits for people – as well as less favourable treatment from laws – that are based on protected characteristics which can be “reasonable, proportionate and legitimate”; although never on the basis of colour, ethnicity or race.

For example, measures of positive action aimed at achieving equality, are not discriminatory.

However, Malta’s national curriculum already mandates religious studies on the basis of a Catholic faith. So the employment of a Catholic-faith teacher cannot be constituted as discriminatory for this purpose.

It is when a physics teacher, for example, whose superior qualifications are passed over for the employment of a lesser-qualified Catholic, that a faith school would have a case to answer for.

Religious rules not ‘discrimination’

There is a clear swathe of clauses that declare that “less favourable treatment” on the grounds of belief, creed, or religion are not discriminatory if they are based on (i) the internal workings of an institution (ii) the ethos of that institution is based on creed (iii) they are religious services (iv) and if such treatment is “a genuine and determining requirement” to reach a legitimate aim.

Religious worship benefits from other important protections

The Equality Bill, contrary to claims by its antagonists, allows faith schools to enforce policies “for teachers within educational establishments, the ethos of which is based on a belief, creed or religion, and the requirement for teachers to act in good faith” with said policies.

The only difference here is that the school cannot interfere with teachers’ private lives.

But the school would have to prove that such a policy is a genuine occupational requirement and a proportionate means of achieving a legitimate aim – that is, a physics teacher is still free to profess their faith during a physics lesson inside a faith-school.

There is an exception for teachers of religion

If it is a genuine and justified requirement, institutions such as schools can adopt less favourable treatment on the grounds of religion in the case of the teaching of religion but also other educational activities where the school’s ethos is based on such belief.

Religious symbols are not going anywhere

It is written black-on-white: the display of religious symbols in public places when such symbols are deemed to have a cultural value, or temporary display during religious events; and the display of content relating to religion, is not discriminatory. (Neither is political messaging).

Conscientious objection

The government is opposed to a conscientious objection clause, saying it could potentially leave thousands of individuals without access to an unknown number of services.

The Constitution already allows persons to refuse to serve as a member of a naval, military or air force if they have a conscientious objection to it; the Affirmations Act allows persons to refuse to take an oath; and the Embryo Protection Act had a time-bound provision which allowed health care professionals to register their objection to perform any technique of medically assisted procreation within 3 months from the coming into force of that Act in 2013.

Conscientious objection clauses in Malta are few and far between, and when included, are very restrictive.

But the Equality Bill guarantees non-discrimination for all in all spheres of public life, including healthcare services and a wide range of protected characteristics; inserting a conscientious objection clause would basically defeat the entire purpose of the law.

The question is, which goods and services would be refused, and how many people would be refused jobs or services, on the basis of ‘conscience’? Which professionals would be able to deny clients: would a surgeon be able to refuse to operate on a person on the basis of their conscience? Would a midwife be empowered to refuse their service on the same basis – for example on services which are legally available in Malta such as IVF treatment and hormone treatment? After all, a medical professional does not need ‘conscience’ to object to a service which is illegal at law such as abortion and euthanasia – which is why the claim that abortion would be imposed on professionals without it is completely false.

“Those pushing for a blanket ‘conscientious objection’ clause to be included in the Equality Bill have been using the abortion red herring to push it forward. This is wrong, because the Equality Bill has nothing to do with abortion,” say the pro-choice doctors’ NGO Doctors For Choice.

In any case – Doctors For Choice point out – the need for doctors to carry out abortions is being overstated. “Women can carry out their own abortions with pills up to 12 weeks of pregnancy and only a minority of them may need to seek medical attention.

“This whole issue is being blown out of proportion by those who simply wish to retain their right to discriminate.”