The Victorian Civil and Administrative Tribunal (the VCAT) has granted a school (the School) an exemption from anti-discrimination laws that will allow it to maintain a gender balance quota. This case provides an illustration of the operation of  exceptions to general anti-discrimination laws in non-government schools.

The decision to grant an exemption

The School teaches in the Steiner education philosophy. According to the decision of VCAT, ‘in Steiner schools, the class cohort stays together from kindergarten to year 8. Accordingly, social cohesion is a key element in the group dynamic and it provides an opportunity for both boys and girls to experience a broad range of personality types of each gender.’

VCAT goes on to say that ‘the current enrolments for the applicant’s kindergarten and prep classes are 75% boys and 25% girls. Where each class has 19 students, there are only four girls in a class with 15 boys. The girls can be overwhelmed, particularly if boys engage in more robust play. The [School] is concerned that, given the cohort stays together for many years, such a gender disparity will reduce the opportunities for the social cohesion described above.’

The School applied to VCAT for an exemption from the Equal Opportunity Act 2010 (Vic) (the EO Act), which applies to schools. It sought to only offer places to female students in Kindergarten and Prep in order to maintain gender balance.

The application was made without the intervention of the Victorian Equal Opportunity and Human Rights Commission, which has a right to, and was given notice to intervene in the proceedings.

The School brought the application because it wishes to provide a co-educational learning environment. It said that without a balance of genders, parents may withdraw their children (because they didn’t want a single-sex learning environment).

The EO Act prohibits schools from discrimination on the basis of gender. Various provisions prohibit a person from requesting, instructing, inducing, encouraging, authorising or assisting a person to engage in the prohibited discrimination. The EO Act allows exemptions to these provisions to be granted.

In considering the application, the VCAT Member was required to consider the effect the exemption would have on the right to equality. It considered that the basis for the exemption was to offer a true co-educational environment. This went to the issue of educational choice, preparing for a mixed gender society, and to ‘learn and better respect the equality and dignity of each sex’.

In considering the application, the VCAT Member said that ‘I do not understand the exemption application to contain an implication that boys in large numbers are regarded as unsafe for girls or unwelcome. As I understand it, the concern is to give boys and girls opportunities to be with a number of children of their own gender, but also, in circumstances of approximate equality of numbers, to interact with the other gender.’

It was satisfied that the exemption should be granted. An exemption was granted that allowed the School to only offer places to female students in Kindergarten and Prep. This was granted for a period of five years.

Gender in schools

Australia has a mix of anti-discrimination laws at the state, territory and federal levels that appear to overlap. There are, at the federal level, five anti-discrimination acts, in addition to the acts of each state and territory. However, they all work to ensure that the aims of anti-discrimination principles are met.

In Victoria, a school that is wholly for students of a particular sex, race, religious belief, age or age group or students with a general or particular disability may exclude people not of that particular category from admission. However, as this case demonstrates, a school cannot discriminate if it is not wholly for a particular category of students. Similar legislation exists in each state and territory.

The issue of a gender balance in co-education schools does not often arise. However, if a school is considering that it would like to achieve a particular balance, it is important to remember that anti-discrimination obligations must still be observed.