Gender identity in schools: School uniforms and dress codes: Are your policies discriminatory? (Part Two)

Published
25 January 2017

This is the second article in a two-part series on issues surrounding gender discrimination and identity in schools. In this series, School Governance reporters William Kelly and Kieran Seed review practical issues in gender identity as relevant to the school system and investigate changes in obligations due to legislative developments. Part One discussed legislative developments and best practice guidance relating to managing transgender/intersex school students. Part Two discusses practical issues faced by schools in recognising gender identity and student choice through uniform procedures.

In the midst of recent developments for schools on how to manage issues of gender identity, the debate around school uniforms has taken on new meaning.   In the past, uniform requirements were criticised for imposing uncomfortable clothing on students (girls in particular who found dresses and skirts impractical) or for preventing religious expression. Now the debate has expanded to include issues of gender identity.

The questions relating to what transgender students should wear (introduced in our previous article Part One) mean that there is now pressure on schools to change their school uniforms and school uniform policies or dress codes to make them gender neutral.

Because there are no strict legislative requirements on government or non-government schools to have implemented a uniform policy and there are no specific standards set by each state or territory education regulator on school uniform dress codes or managing what students wear, schools have the discretion to set their own uniform standards. Uniform policies or dress codes are left up to the individual schools to create and enforce, as long as they are not unreasonable.

As a practical example of this right and the capacity for schools to change, the Victorian Equal Opportunity & Human Rights Commission reported last year on a primary school refusing to allow a female student’s request to wear pants to school.  The Grade One student wanted to wear pants as she was uncomfortable playing sport and running in a heavy school tunic and thick socks.  After her parents raised the issue with the school, the school agreed to allow the girl to wear pants.  But when the requested change in policy is due to a student's gender identity, and not comfort, the process can be more complicated.

Can school uniforms be discriminatory?

The incident above clearly raises the issue of gender/sex discrimination within the education sector. As discussed in our previous article (Part One), the law in most state and territories requires educational institutions and authorities not to discriminate against a student by denying or limiting access to any benefit, expelling the student or subjecting him or her to any other detriment.  This may include but is not exclusive to:

  •  refusing admission of a student due to race or ethnicity;
  •  denying or limiting access to benefits available to other students because of a disability; and
  •  expelling a student because of their sexual orientation.

In South Australia, the Transgender and intersex student support procedure referred to in our previous article (Part One) makes reference as to how inflexible school dress code policies requiring students to wear a uniform may result in possible breaches of the anti-discrimination legislation, including the Equal Opportunity Act 1984 (SA).  The procedure recommended that students should be able to identify as transgender or intersex and be allowed choose from the uniform options available.

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 which 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 the students.

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

The practical issue with school uniforms

Within school communities and Boards, uniforms are a contentious subject.  It can be argued that a school 'uniform' standards may not only involve clothes but also encompass:

  • hair (style, dyed colour and length);
  • facial hair such as beards;
  • make-up;
  • nail length;
  • general appearance;
  • grooming standards;
  • tattoos and piercings:
  • wearing of jewellery;
  • shoes; and
  • the wearing of certain religious items.

Furthermore, a uniform can support or even create a sub-culture within a school.  A uniform can promote school identity, assist to formalise the expectation of how pupils of the school are to behave, that they belong to a community and that they are a representative symbol of the school's values.  If the uniform was changed, there could be a community and alumni backlash against the change as the uniform often forms a recognisable and integral component of a school’s history, culture and tradition.

Consequently, a plethora of issues arises if a part of the uniform is challenged.   In Melbourne, a Sikh family has lodged a claim with the Victorian Equal Opportunity and Human Rights Commission after a school in Melbourne’s West refused entry to their son. This was because he was wearing a turban, which went against the school’s uniform policy.  In this case, the parents acknowledge section section 42 of the Equal Opportunity Act 2010 (Vic) allows the school to ban the turban, but they call the school's stance unreasonable.

It remains to be seen as to how the VCAT application progresses but ''unreasonable'' or not, schools invest a significant amount of money into how their school uniform looks, how it is sold and the range that they require for their students.  If a school was to change school uniforms regularly to respond to current fashion styles or student demands for alternative options, the financial and administrative costs could be enormous.

The gender issue of uniform

Male/female dress codes

As previously highlighted, traditionally, issues or concerns regarding school uniforms have been usually raised in circumstances such as student comfort or religious freedom. Increasingly, the issue of gender identity is also being raised by students and parents - challenging school uniform rules.

And increasingly, members of the school community are resorting to avenues outside of the school environment to help their cause.  A Victorian mother has started a petition for the Victorian Government to allow girls to wear shorts so they can play without being uncomfortable.  This comes after her daughter’s school refused to allow her to wear shorts after feeling uncomfortable playing and running around in her dress.   Interestingly, the mother's petition states that "My daughter's school does not have a school board or council to take our concerns to. The alternative is to make an anti-discrimination claim against the school." This statement indicates the student is at a government school and reveals an insight into the benefits of non-government schools having structures such as a board or council to be one venue to hear and resolve parent and guardian complaints.

The debate around school uniforms has attracted academic argument stating that school uniforms contribute to gender discrimination by creating a gender divide.  School uniforms can also create problems regarding practicality, particularly focusing on dresses and skirts. This issue was addressed by a Melbourne non-government school which, following research and feedback from its school community, recently allowed female students to wear pants and shorts as a part of their uniform.

In the event a female student wants to wear trousers or shorts, it would be best to consult with the parents to see how the child feels wearing the uniform and to ask why they wish for the change.  Also, if there was a significant change initiated within the school community for girls to wear trousers or shorts, it would be prudent to consult with the school community to ascertain their views.

Transgender uniform procedures

Recently, there have been issues raised in the news about school students genuinely identifying as a transgender and having issues regarding what school uniform wear.  A transgender teen in Victoria had to wear a girl’s uniform whilst identifying as a boy and asked the school if he could wear trousers.  The transgender teen accused them of discrimination after the school denied his request.  The teen was not allowed to participate in cross county or other events as a boy and was banned from using the male toilets.  As a result the teen had to find another school which was more accommodating of transgender needs.

In the event that a school may be required to make changes to uniform policies to accommodate transgender students, which may require a deviation from the school uniform policy or dress code, this may be difficult for schools to justify or implement, as the uniform may be embedded within the school’s culture.

However, if a student came to a teacher and said that they identified as the opposite sex/gender, then policies and procedures should be implemented or enacted in order for the school to do everything possible make sure they do not discriminate against the student.

Possible solutions to the growing problem

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

  •        create a unisex uniform to allow students to have a choice;
  •        create a policy to allow students to have a choice about their uniform;
  •        create a policy detailing uniform requirements for students who identify as transgender; and/or
  •        if girls want to wear shorts/pants instead of dresses/skirts then schools could consult with parents to see how the child feels or provide an option for female students to wear specifically tailored pants/shorts.

 

William Kelly

William is a Legal Research Coordinator at CompliSpace. He assists with drafting and reviewing policies and procedures, as directed, for CompliSpace clients as well as writing regular articles for the School Governance blog. William is a lawyer and an officer of the Supreme Court of Victoria.