Australia: School uniform policies and racial discrimination

Student's claim succeeds

Cyrus was a student at the Australian Christian College, Moreton from 29 January 2020, when he commenced his preparatory year. The College is an independent, co-educational, Christian independent school operating from the Preparatory year to year 12.

Cyrus' father was of Cook Islands and Niuean origin and his parents wanted to practise that culture. In the Cook Islands/Niuean culture, the eldest son in a family does not have his hair cut until around seven or eight years of age, when it is cut in a ceremony that symbolises the boy's transition to manhood. Accordingly, Cyrus' hair had not been cut since birth.

Cyrus attended his first day at the College with his long hair tied in a bun. Two days later, the Principal informed his mother that Cyrus' hair was in breach of the School Uniform Guide, which provided:

Later that afternoon, Cyrus' mother spoke to the Deputy Principal, seeking an exemption from the uniform policy on account of Cyrus' Cook Islands/Niuean ancestry and the cultural reasons for his long hair. She was unhappy with the Deputy Principal's response and arranged a meeting with the Principal to explain the cultural reasons for Cyrus' long hair. She told the Principal that a hair-cutting ceremony was planned for his seventh birthday.

At that meeting, the Principal said he would gather some information to present to the College Board about the matter. However, the Board Chair advised the Principal the next day that the uniform policy was endorsed by the Board and no exemptions would be allowed.

The Board Chair informed Cyrus' mother that the Board would not allow an exemption and were also not willing to compromise by allowing Cyrus to braid his hair. A week later, she sent a formal letter of complaint to the Board. She received a response two days later, which relevantly provided:

The President of the Cook Islands Council of Queensland wrote to the Principal about Cyrus on 14 February 2020 and the College Board agreed to give Cyrus until 21 February to comply with its requirements.

On 18 February, Cyrus' parents filed a complaint with the Queensland Human Rights Commission, alleging unlawful discrimination and also made an application for an interim order under section 144 of the Anti-Discrimination Act 1991 (Qld) prohibiting the College from taking any steps to exclude Cyrus from the College until the complaint had been heard by the Tribunal.

Discrimination in Education

Section 7 of the Anti-Discrimination Act contains a list of “attributes” on the basis of which discrimination is prohibited. The relevant attributes of Cyrus' case were race and sex. Sex is not defined. In the schedule, race is defined to include:

1. colour; and
2. descent or ancestry; and
3. ethnicity or ethnic origin; and
4. nationality or national origin.

Discrimination on the basis of an attribute can be direct or indirect. Section 10 defines direct discrimination as:

10 Meaning of direct discrimination

Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Indirect discrimination is also defined:

11 Meaning of indirect discrimination

1. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term –
   1. with which a person with an attribute does not or is not able to comply; and
   2. with which a higher proportion of people without the attribute comply or are able to comply, and
   3. that is not reasonable.
2. Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –
   
   1. the consequences of failure to comply with the term; and
   2. the cost of alternative terms; and
   3. the financial circumstances of the person who imposes, or proposes to impose, the term.
3. It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
4. In this section –

term includes condition, requirement or practice, whether or not written.

Sections 10 and 11 do not make any discriminatory act unlawful but merely define what will amount to discrimination. Section 39 makes certain discriminatory acts unlawful in the context of education by providing that an education authority (in this case, the College) must not discriminate –

1. in any variation of the terms of a student's enrolment; or
2. by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or
3. by excluding a student; or
4. by treating a student unfavourably in any way in connection with the student's training or instruction.

Discrimination on the basis of Race

The Tribunal found that the hair-cutting ceremony for the eldest son was a tradition or cultural practice associated with the Cook Island/Niuean culture and the ceremony should take place at a time of the choosing of the parents (as an integral part of the practice). Further, the Tribunal was satisfied that discriminating on the basis of race includes discriminating on the basis of the features of that race (including shared cultural practices, traditions, customs or characteristics of the race). This was because the definition of race includes those customs and cultural practices or, alternatively, they are incorporated by the ‘attribute extension provision' of section 8 of the Anti-Discrimination Act, which extends discrimination on the basis of an attribute to account for a characteristic of the attribute.

Accordingly, the Tribunal found that Cyrus could not, consistent with the customs and cultural practices of his racial group, comply with the requirement to cut his hair before second semester 2020.

Direct Racial Discrimination

Direct racial discrimination requires a comparison between how the person with the racial attribute, including characteristics of the attribute, was treated and how another person, without the attribute is or would be treated in circumstances that are the same or not materially different.

Dealing with discrimination on the basis of race, the relevant comparator was held to be a boy whose racial customs or beliefs are not compromised by the uniform policy as applied by the College. This approach takes into account the characteristics of the race generally, which, in this case, included a tradition whereby the eldest son of the family does not have his hair cut until a time decided by his parents as appropriate to mark his transition from boyhood to manhood.

The question then was whether the College would have denied another student the benefits of their education in the same or similar circumstances. To the Tribunal, the answer to this was clear: the College would not have denied a student the benefit of their education, where the student complied with the education policy and therefore found that there had been direct discrimination on the grounds of race.

Indirect Racial Discrimination

Indirect discrimination, for the purposes of section 11, required a term to be imposed with which a person with an attribute does not or is not able to comply. The Tribunal found that the term (to cut Cyrus' hair by second semester 2020) was not a requirement with which Cyrus could comply, as the timing for the hair-cutting ceremony was a matter for Cyrus' parents to determine.

For the term to constitute indirect discrimination, it must be “not reasonable”. The Tribunal found that the exclusion of Cyrus from school was a serious step, which would cause significant emotional distress. The Tribunal also accepted that relaxing the uniform policy in Cyrus' case may lead to pressure on the uniform policy, with others also seeking exemptions. However, overall, the Tribunal found that the term was not reasonable. Therefore, the College's uniform policy was subject to the operation of the Anti-Discrimination Act and it would be possible to explain the grounds of the exemption to the school community.

Accordingly, there was a finding of indirect discrimination on the grounds of race.

Discrimination on the basis of Sex

It was also argued before the Tribunal that “Cyrus has been treated less favourably than a female student on the basis of his sex, because a female student with long hair would not have been required to have her hair cut.” This was a claim of direct discrimination. In the opinion of the Tribunal, the relevant comparator for the purposes of ascertaining whether there has been direct discrimination on the basis of sex was a school-age person who was not a boy.

Discrimination does not necessarily arise from different treatment from sexes. It will only exist if one or other sex is treated less favourably. In regard to uniform policies generally, treating boys and girls differently is not, of itself, sufficient to demonstrate that one or the other has been treated less favourably. This is a question of fact.

In this case, the uniform policy identified its purpose and then proceeded to set out the requirements in respect of hairstyles for both boys and girls. There were constraints in relation to girls' hair and in relation to boys' hair, and there were also constraints that applied to both. All these requirements furthered the purpose of the uniform policy.

Considered as a whole, the uniform policy in relation to hair does not treat boys less favourably than girls. Accordingly, there was no finding of sex discrimination.

Conclusion

This case suggests that now is a good time for schools to consider their uniform policies. Should you include an exemption from the normal requirements in some circumstances, such as students who cannot comply due to cultural practices or attributes? For co-ed schools, would your policy in your situation which has different rules for boys and girls pass muster?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.