The law is dynamic, constantly evolving to reflect shifting societal values and beliefs. This notion is particularly evident in the field Anti-Discrimination, which continues to develop in response to the growing expectation that the legal system will fiercely protect individual rights. For educational institutions, who are charged with providing learning environments free from discrimination and vilification, this shifting landscape can create many pitfalls in formulating and revising policies and procedures.
These difficulties are highlighted in the recent decision of the Queensland Civil and Administrative Tribunal in TAH v A School [2024] QCAT 434, which considered the requirement imposed by the College’s uniform policy that female students in years 7 to 12 must wear a skirt to formal school occasions. Deciding in favour of the school, the Tribunal found that this requirement constituted neither direct nor indirect discrimination pursuant to the Anti-Discrimination Act 1991 (Qld) (the AD Act).
Background
The complaint was that the school’s uniform policy required female students in years 7 to 12 to wear a skirt to formal school occasions. That would include school outings or excursions, school ceremonies and events, class photographs, awards nights and external events. It was alleged in the complaint that the policy amounted to both direct and indirect discrimination on the basis of the attribute of sex.
Direct Discrimination
With respect to direct discrimination, it was alleged that the complainant was treated less favourably than a male student in the same or not materially different circumstances because she:
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- had purchase two sets of school uniforms (financial burden);
- had to take greater care to maintain modesty when sitting;
- would not be as warm in winter (even if wearing stockings);
- would be restricted in the physical activity she could partaken in during school outings and excursions;
- faced exclusion or suspension if she failed to comply with the uniform policy; and
- would suffer detriment to her education, and it would be unfair, if she failed to attend a formal occasion because she did not wish to wear a skirt.
Indirect Discrimination
It was alleged that the uniform policy created an implicit term that students must be male in in order to be permitted to wear shorts or trousers to formal occasions, and that this constituted indirect discrimination because as a female student she would be unable to comply.
Findings
In dismissing each question, the Tribunal had regard to the following:
On the question of financial burden:
(a) the financial circumstances of the complainant’s family was such that there was no hardship in purchasing a second uniform;
(b) no concerns had been expressed to the school by other parents;
(c) skirts were available on loan for formal occasions from the school; and
(d) second-hand skirts were available at a cheaper price.
On the question of modesty:
(a) skirts were required to touch the ground when kneeling, and therefore quite long; and
(b) students could wear shorts or bike shorts under the skirt.
On the question of comfort/warmth:
(a) there was no explanation whether wearing tights, stockings or knee highs would assist with the cold; and
(b) in warmer times, it may be preferrable to wear a skirt than trousers.
On the question of physical activity:
(a) the evidence from the school was that there is no such physical activity at formal school occasions.
On the question of adverse consequences:
(a) it would be ‘unlikely’ that a female student would be sent home from a formal event if not wearing a skirt;
(b) any other consequences were just speculation; and
(c) the student could apply for an exemption from wearing a skirt on formal occasions.
By way of further, general considerations, the Tribunal noted that female students did not have to wear a skirt on ordinary school days. In despite of having that choice, the overwhelming majority of relevant female students chose to wear a skirt and appeared that they were generally content to wear skirts.
Indirect Discrimination
On the question of indirect discrimination, the Tribunal found that the complaint amounted to an allegation that the term in question was “a condition requiring girls to be boys”, and that it would be artificial to try to identify a disparate and adverse impact arising from the different effect of the policy on female and male students. The different effect arose from differences in the policy applying to female and male students. Put simply, the complaint should have been addressed as a direct discrimination issue rather than raised as indirect discrimination.
What Should Schools Consider?
This case illustrates important considerations by educational institutions when developing regulatory frameworks.
Here, the respondent school had implemented a policy that achieved the desired standard of formality while remaining within the bounds of the law. When introducing new policies, schools should assess whether the policy may lead to complaints and take reasonable and practical steps to avoid potential disputes. Regular reviews of existing policies and procedures should also be undertaken to ensure ongoing compliance.
Vocare Law is well equipped to assist our Schools & Education clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions your current School Policies or whether you would like our office to formally review any policies. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Courtney Linton & Jack Macpherson.
**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
