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School’s skirt rule not discrimination: QCAT

A female high school student who alleged she was discriminated against by having to wear a skirt to formal school events has had her complaint dismissed.

The parents of “TAH”, who attended “A School”, complained to the Queensland Human Rights Commission (QHRC) that their daughter faced direct and indirect discrimination by being required to wear a skirt to formal school occasions while male students could wear their usual uniform of shorts or trousers.

The QHRC referred the complaint to the Queensland Civil and Administrative Tribunal (QCAT), which on Friday dismissed it, finding the school did not discriminate on the basis of sex, under the Anti-Discrimination Act 1991 (Qld).

The school’s uniform policy required girls in years seven to 12 to wear a skirt to formal occasions, including excursions, school ceremonies, class photos, awards nights and external events. Boys could wear shorts or trousers, their usual school uniform.

In terms of direct discrimination, the complainants argued their daughter was treated less favourably than a male student because she:

  • had to purchase two sets of school uniform;
  • had to take greater care to maintain modesty when sitting to ensure the skirt was properly covering her;
  • would not be as warm in winter;
  • faced exclusion or suspension if she failed to comply with the uniform policy; and
  • would suffer detriment to her education, and it would be unfair, if she failed to attend a formal occasion because she did not wish to wear a skirt.

In terms of indirect discrimination, the complaint stated that implicit in the skirt requirement was a term that students must be male to be allowed to wear shorts or trousers on formal occasions. This amounted to direct discrimination because the complainant was not able to comply with that term because:

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  • she was female;
  • a higher proportion of male students, indeed all male students, were able to comply; and
  • it was unreasonable in that there was no clear rationale for it, and shorts and trousers were everyday attire for females.

The school responded that the allegations were “offensive and baseless”. Its contentions included that:

  • the policy was consistent with community standards;
  • most female students chose to wear skirts for everyday school wear despite being able to wear other clothes;
  • the policy was reasonable because it applied to events for about eight hours a year, unless a student was chosen to attend other specific formal external events; and
  • other than school photos, the events were seated, and indoor, and none involved physical activity.

Member Gordon said the complainant’s father had accepted the family did not suffer hardship in having to buy a second uniform, and the school had pointed to the fact no other parents had complained of the expense, and the school had loan skirts available.

On the question of modesty, he said the risk of exposure was reduced by the mandated length of the skirt, and the complainant’s father had accepted the student wearing bike shorts under her skirt would solve the issue.

He said if the student was concerned about feeling cold, there was nothing stopping her from taking a change of clothes to the formal occasions.

He said the consequences for non-compliance with the policy were the same for male and female students, and the school had stated it would be “unlikely” a female student would be sent home from a formal event if not wearing a skirt.

Exemptions were also available, lessening any difficulty faced by female students, he said.

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“Standing back from the specific heads considered above and taking an overall view, the evidence is insufficient to show that the formal occasion uniform policy resulted in, or would have resulted in, less favourable treatment of the complainant as a female student over male students,” he said.

“To put this another way, there was different treatment between the sexes, but the evidence does not show that the different treatment was unfavourable to the complainant.”

Member Gordon said it was difficult to fit the complaint into the direct discrimination provisions of the Act because the provisions required “a disparate and adverse effect from the same treatment meted out to those with an attribute and those without”.

“It is true that the same policy applied both to male and female students, but within that policy they were treated differently,” he said.

“It is artificial to try to identify a disparate and adverse impact arising from the different effect of the policy on female and male students because in doing so, it becomes clear that the different effect does not arise from the same policy.

“The different effect arises from differences in the policy applying to female and male students.

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“This is not therefore a complaint which can be dealt with under the indirect discrimination provisions and I would dismiss the indirect discrimination complaint for that reason.”

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