Wednesday, 18 May 2016

Female student wins in fight to wear pants – how does the Equal Opportunity Act apply to school uniforms?

Recent news coverage has reported on a story of a primary school refusing a female student’s request to wear pants to school. The Grade 1 student wished to wear pants because she was uncomfortable playing sport, running and climbing in her heavy school tunic and thick stockings. Although the school has agreed to allow the girl to wear pants after her parents raised it with the school and is reconsidering its policy, the incident has raised the issue of discrimination based on sex in the area of education.

The law prohibits discrimination based on a range of attributes in education.

The Equal Opportunity Act 2010 requires educational authorities not to discriminate against a student by denying or limiting access to any benefit, expelling the student or subjecting the student to any other detriment.

For example;

  • refusing to admit a student because of their ethnic background
  • denying or limiting access to benefits available to other students because of a disability
  • expelling a student because of their sexual orientation
  • failing to take adequate steps to prevent or resolve an issue if someone sexually harasses a student.

Direct discrimination may occur where a different dress code for students based on an attribute listed in the Equal Opportunity Act 2010 treats students unfavourably based on the attribute. Requiring female students to wear dresses instead of pants may amount to direct discrimination.

Indirect discrimination may happen if a dress code that applies to all students disadvantages students with an attribute and this is not reasonable. For example, a school that banned religious dress may discriminate based on religious belief against students if this prevented them from conforming to their cultural or religious requirement to wear a turban, yarmulke or hijab.

Government schools are required by education department policy to enforce a similar dress code for both sexes; a uniform should not discriminate based on students’ “personal characteristics” and must allow a range of uniform options for all students. This requirement does not extend to independent schools, including Catholic schools such as the one mentioned in the news story.

The Equal Opportunity Act 2010 has an exception that does allow an educational authority to set and enforce reasonable standards of dress, appearance and behaviour for students. A standard is taken to be reasonable if the educational authority administering the school has taken into account the views of the school community in setting the standard.

Another exception to the Equal Opportunity Act 2010 allows a person or body that directs, controls or administers a religious school to discriminate based on a number of listed attributes if this conforms with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to religious sensitivities of followers of the religion. This could permit religious schools to require students to wear religious dress for example, girls to wear hijab or for boys to wear a yarmulke.