School Uniform Debate: Is it discrimination to mandate that girls wear skirts?

You may have seen this debate being featured by various media outlets in recent time. At the centre of the debate is the question of whether it is discrimination to require female students to wear skirts as part of the uniform and/or whether they should be allowed the option to wear pants/shorts to school. All States except Queensland have now mandated offering shorts or pants as an option in state schools. Many private schools are also joining this trend.

But is it discrimination in a legal sense to mandate female students wear skirts?

Discrimination

Non-government schools have a discretion regarding the rules they put in place for their school uniform. As part of enrolling at a non-government school, parents and students agree to comply with the school rules including the uniform policy. This means the school can mandate such restrictions as to what is worn or how it is worn. For example, the policy on piercings or hair length.

Is, however, mandating a female student wear a skirt discrimination?

Discrimination occurs when a person is treated unfairly because of an attribute or a personal characteristic that they maintain. Those attributes or characteristics are identified in the Equal Opportunity Act 2010 (Vic). Gender is an attribute protected by that act.

So on first instance, the answer would be it is likely that this would be discrimination. On its face, the rule exists merely because they are female.

Practicality vs Tradition

Some schools have taken the view that female students are mandated to wear skirts because of school tradition or that girls “look better” in dresses. Whether or not this is legally considered discrimination is up for debate, but it would seem likely. Certainly, any argument of “tradition” would not hold up in defending a discrimination claim.

Whether or not it is discrimination, there is in any case a movement toward pants/shorts to allow all students to enjoy easier movement and play without the burden of a skirt flipping. This change may also encourage increased physical activity of female students in the playground.

Can skirts and dresses still form part of my uniform?

In short, yes. Schools and other organisations can offer an array of uniform options, including dresses and skirts. It is not the offering that makes the policy subject to possible discrimination. Rather it is the mandating of female students to wear a certain uniform on the basis of their gender. To avoid falling foul of the anti-discrimination laws, uniform policies should simply give girls equality in uniform choice and clearly state their right to wear what they are most comfortable with.

How can I protect my school?

Flexibility, flexibility, flexibility! Offer all your students the same choice of uniform options without mandating any choice based on gender.
Have a clear and well detailed policy. This should be more than a one line “girls should be offered pants.”
Ensure the policy is enforced. It is insufficient to have a policy that isn’t implemented and supported.

How can Brennan Law Partners assist?

Independent and Catholic schools that continue to enforce skirts and dresses as the only uniform option for girls are at risk of having legal action and complaints filed with the Anti-Discrimination Commission. To avoid this, it is probably time to have your uniform policies and rules reviewed through a modern lens, particularly in light of the recent social and legal movements. Brennan Law Partners is working with various schools to bring their policies into the current social thinking and to avoid outdated and discriminatory rules.

If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.

This is meant as a guide only and should not be taken as legal advice.