Corney & Lind Lawyers was recently able to act for a non-state school in defending the school’s dress and haircut policies, and received a favourable outcome from QCAT. This decision highlights that school dress codes can be enforced, particularly where:
- the policy has been made known to parents;
- the dress code is representative of the culture and ethos of the school; and
- the school otherwise acts reasonably in applying the policy.
This article considers the recent decision of Senior Member Fitzpatrick in XA (BY ZA) v School [2024] QCAT 15, and the implications arising from this for schools.
THE FACTS
The parties’ names have been de-identified to protect the privacy of the child the subject of this proceeding.
XA was enrolled as a Prep student at the School for the year commencing 2024. He is a boy with long hair, which he typically wears in a “neat topknot style”.
At all material times the School had in place a detailed Code of Behaviour which includes the following:
Pride in appearance is a measure of self-esteem and loyalty to the College. Students must wear their full uniform (formal or sporting), without any clothing additions or variations, and ensure it is maintained clean and in good repair. The formal uniform is to be worn at all College activities, and to and from school, unless otherwise advised.
Hairstyles must be in keeping with the neat and conservative style of the uniform, and as defined by the College. This means that hair must be a natural colour, and fashion trends or extremes of hair length are not acceptable. Fringes must be above the eyebrows. Long fringes swept or held back by hair product are not acceptable. Boys’ hair must be trimmed about the collar and the ears, and must not have any significant difference in length between the side and the top; girls must tie hair back from the face with College approved accessories only.
ZA, the father of the young child, filed a Complaint with the Queensland Human Rights Commission (QHRC) in late 2023, framed in terms of direct and indirect discrimination on the basis of gender. A conciliation conference was scheduled between ZA and the School for 8 February 2024, some two and a half weeks after XA was due to commence classes.
On 12 January 2024 ZA filed an application in QCAT pursuant to section 144 of the Anti-Discrimination Act 1991 (Qld) (the AD Act) seeking an interim order, or injunction, that XA:
- be accepted as enrolled at the School;
- commence on 22 January 2024 without complying with the School’s hairstyle policy which would require XA to have his hair cut; and
- not be bullied or subjected to negative comments about his hair by students or staff.
OUTCOME
In declining to grant the injunction, Member Fitzpatrick found:
- no prejudice to the QHRC process or any order the Tribunal might make if no interim order was made in the terms sought by ZA;
- XA was unlikely to establish a prima facie case of direct discrimination because he was unlikely to establish that different treatment with respect to hair is unfavourable treatment, which is a necessary element of the claim;
- on a preliminary assessment, XA did not demonstrate a prima facie case with respect to a claim of indirect discrimination; and
- the balance of convenience favoured the School and the application of its Code to all students.
PREVIOUS DECISIONS
Many schools will be aware of the 2020 Judgment by Member Traves in Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 and the subsequent 2022 determination by Senior Member Howard and Member Fitzpatrick in the Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118.
In that case, Cyrus Taniela was a young boy of Cook Islander and Niuean descent. It is a tradition or cultural practice associated with Cook Island/Niuean culture for the eldest son to undergo a hair-cutting ceremony at a time of choosing of the parents. Shortly after commencing school, Cyrus’ mother was informed that his hair was in breach of the uniform policy, and that failing a haircut he would be unenrolled from the school. It was held that this amounted to indirect discrimination on the basis of Cyrus’ race pursuant to s 39 of the AD Act.
LESSONS FOR SCHOOLS
What then, can schools learn from the 2024 decision by the Tribunal, and how is this case different from the findings in Taniela? We summarise the key takeaways below:
- a dress code is not required to make provisions which apply identically to boys and girls.[1] In other words, rules concerning appearance will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality, and taken as a whole, neither gender is treated less favourably in enforcing that principle.
- Unlike Cyrus, there was no evidence that XA was unable to comply with the requirement that he cut his hair, the length of which was a matter of personal choice.[2] At paragraph [12] of the Judgment, the Member stated:
There is no suggestion of any racial, cultural, religious or gender identity significance to the manner in which XA wears his hair. Given the very young age of XA which I infer to be 4 or 5 years, it is reasonable to assume that XA’s hairstyle is a styling choice made by his parents and that the views set out in the Complaint as to restriction and disadvantage are the views of ZA.
- In the absence of any attribute such as race, culture (applicable in Taniela), religion or gender identity such that long hair is a relevant characteristic, the requirement that boys’ hair be trimmed above the collar was not unreasonable.[3]
WE CAN HELP
Do you need assistance drafting school policies which uphold your school’s traditions and values while being responsive to the diverse identities and needs within the student body?
Do you need assistance in evaluating and/or responding to a request for accommodation?
Contact our School Law team on (07) 3252 0011.
[1] At [26].
[2] At [28].
[3] At [30].