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Who’s wearing the pants? School uniforms: The issue that keeps on giving

7/06/17
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With the myriad of issues that schools deal with on a daily basis, school uniforms would be one of the most contentious.  Over the past year, the topic of school uniforms has been regularly in the news where school students, parents or school communities are requesting or implementing gender-neutral school uniforms.

In the School Governance article Gender identity in schools: Part 2 – School uniforms and dress codes: Are your policies discriminatory? we previously wrote on the topic of transgender students and how schools can cope with the challenges posed by implementing a gender-neutral uniform policy.

Recently, a Sydney mother won a battle against a NSW government school so that her daughter could wear shorts and pants at school.  Her battle involved going to the NSW Anti-Discrimination Board to challenge the school’s decision.

A mother on a mission

In 2016, the mother sent her two daughters to school wearing pants instead of the school dress. Unfortunately, the daughters were subject to bullying and teasing by other students for being different.  This resulted in the school deciding that girls could only wear dresses or tunics, in accordance with the school's uniform policy.  In NSW government schools, the principal is free to establish the school's own uniform policy in line with the Department's Uniform Guidelines and policy.

The mother decided to challenge the government school’s decision and went to the Anti-Discrimination Board, who referred her to the not-for-profit and policy organisation Public Interest Advocacy Group (PIAC), so the matter could be taken further. The Anti-Discrimination Board handles complaints under the Anti-Discrimination Act 1977 (NSW). As stated on its website the Board "can help you and the other side find a way of solving the problem."

Before the matter could progress any further, both the mother and the school settled confidentially. The school agreed to change its policy to provide a trousers and shorts option while continuing to provide a tunic and dress option for female students.

This confidential settlement has not stopped the mother and PIAC writing to the NSW Education Minister to urge the Minister to introduce a gender-neutral uniform policy for all NSW government schools.


What are the legal considerations for schools

Under the Anti-Discrimination Act 1977 (NSW) (NSW Act), it is unlawful for anyone to discriminate on the grounds of race, religion, sex, nationality, disability or age.  However, it is well established that exemptions under anti-discrimination laws exist for various categories of educational institutions. Under section 31A of the NSW Act non-government schools are exempted from the prohibitions on discrimination on the ground of sex.  The issue of dress then becomes a matter for school policy in terms of dictating what the uniform standard will be for students, whilst also complying with anti-discrimination legislation.

In the NSW case, the mother may have had more grounds to challenge the school as it is a government school which is not exempted from the requirements of the Anti-Discrimination Act.


Lessons for schools to learn

There is substantial debate around school uniforms, even attracting academic argument that school uniforms contribute and promote a gender divide within a school community and also create problems regarding the practicality of school dresses.

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.

As the situation described in this article shows, a conflict over a school uniform may result in legal action.  Without the need for parties to even think of resorting to legal action to resolve their issue, it may be best for schools to ask affected parents what is troubling their child about the school uniform and to ask how the matter can reach a mutually beneficial resolution.  Robust internal complaints handling procedures are critical to achieving effective communication internally, before the matter attracts public attention.

In the event a female student wants to wear trousers or shorts, or a male student wants to wear a dress or skirt, schools should consult with the parents to see how their child feels when wearing the current uniform and to ask why they wish for the change.  Furthermore, if there is significant demand with the school community for students to have access to the full range of uniform options, it would be prudent to consult with the school community to ascertain their views and see whether the school’s policy should be amended to accommodate community needs.

 

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About the Author

William Kelly

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