Among the myriad of issues that schools deal with on a daily basis, school uniforms would be one of the most contentious. A uniform can promote a school's identity, assist to formalise the expectation of how pupils of the school are to behave, show that pupils belong to the school community and be a representative symbol of the school’s values.  If the uniform is changed, there could be a community and alumni backlash against the change as the uniform forms a recognisable and integral component of a school’s history, culture and tradition.

Can School Uniforms Be Discriminatory?

As mentioned in our previous article, jurisdictional-specific equal opportunity legislation, such as the Anti-Discrimination Act 1977 (NSW), prohibits discrimination on the basis of gender identity or sexuality, while the Sex Discrimination Act 1984 (Cth) prevents educational discrimination due to a person’s sex. As a result of this, inflexible dress codes may be considered to be infringements of the federal and state/territory discrimination laws.

However, it is well established that exemptions under anti-discrimination laws exist for various categories of educational institutions. The exemptions in each jurisdiction differ in wording but essentially provide the same exemption for schools to discriminate against students, and employees, based on characteristics or qualities that would go against the teachings and beliefs of the school, including religion, race and sex.

In addition, in most states and territories there is a provision in the relevant anti-discrimination legislation that allows schools to discriminate on the basis of setting and enforcing reasonable standards of appearance and behaviour of students. For example, section 42 of the Equal Opportunity Act 2010 (Vic) allows schools to discriminate regarding sex/gender with regard to dress code, appearance of students and behaviour of students.

But when it comes to school uniforms, just because schools are legally allowed to discriminate, should they?

Mothers on a Mission

Dr Amanda Mergler and Simone Cariss formed Girls’ Uniform Agenda in February 2017. Girls’ Uniform Agenda is an Australia wide group, advocating for the choice of shorts and pants for all girls at all schools. The organisation aims to:

1. support parents and girls who seek to have uniform policy changes implemented in their schools
2. encourage school leaders to recognise that girls should be offered a range of suitable formal and informal uniform options, including shorts and long pants
3. work with uniform suppliers to increase the range of girls’ shorts and pants options available, and
4. campaign for legislative and policy change in this area.

Based on its research, the organisation has presented six key reasons for girls to be allowed to choose to wear pants or shorts over a dress or skirt. These include:

• Physical Activity - current Australian research shows that girls in dresses and skirts are limited in how much they move during active play.
• Learning - sitting on the floor during classroom activities can be limited when wearing dresses or skirts.
• Modesty - wearing dresses and skirts can accidentally publicly reveal what is underneath, especially if cartwheeling or playing on the monkeybars.
• Legal Risk - preventing girls from choosing dresses or skirts could present a discrimination claim against the school.
• Gender Stereotypes - rigid gender stereotypes don't allow girls the same amount of freedom as boys.
• Social Expectations - all professions have a choice of uniform (e.g. police officers) and schools should reflect this social expectation.

Where Does Your State/Territory Stand on School Uniforms?

Queensland

On 15 July 2018, Education Minister Grace Grace announced in a media release that all Queensland state schools must offer more uniform choices for girls, including shorts and pants, from 2019. However, while state schools will now have to offer greater choice to girls, each school will still be responsible for design, colour and style.

New South Wales

On 24 July 2018, Premier Gladys Berejiklian and Education Minister Rob Stokes announced changes to the schools' uniform policy, forcing all NSW government schools to let girls wear pants if they want to. Schools will have up to three years to make the change. The state's new policy also calls on all school items to be "affordable, comfortable and suitable" for all body types.

Western Australia

In September 2017, Education Minister Sue Ellery announced that it was mandatory for schools in WA to offer girls the choice of wearing pants or a dress to school. Principals are now required to make sure there are "gender neutral" uniform options for all students.

Victoria

Also in September 2017, Education Minister James Merlino announced a new policy to allow female students at all public schools the option of wearing shorts and pants from the beginning of 2018. The guidelines also say that all students should have access to the full range of available school uniform options.

South Australia

Despite not having any specific guidance from the SA Education Department, the majority of state schools in SA allow girls to wear shorts and pants.

Tasmania

There is no clear policy in Tasmania and individual schools in this state have their own uniform requirements and dress codes.

Australian Capital Territory

Despite not having any specific guidance from the ACT Education Department, the majority of state schools in the ACT allow girls to wear shorts and pants.

Northern Territory

It's compulsory for students at all government schools in the NT to wear a uniform until at least Year 9. (Senior schools make their own decision about this.) However, the territory's uniform policy does not mandate the exact uniform items to be made available, nor does it directly address gender. The uniform policy is due to be reviewed in October 2018.

Considerations for Schools

A school uniform can promote school identity, assist to formalise the expectation of how pupils of the school are to behave, create a sense of belonging to a community and represent the school’s values. Nevertheless, there is nothing to say that school uniforms must remain in the past and cannot adapt to modern times.

For schools that may be considering a review of their uniform standards, the following options may be worthy of discussion:

• create a unisex uniform
• create a policy to allow students to have a choice about their uniform, and
• provide an option for female students to wear pants/shorts tailored to individual requests that fit within the style of the rest of the school's uniform.