LITIGATION CASE STUDY 3

DISCRIMINATION ON GROUND OF SEX

COPE v GIRTON GRAMMAR SCHOOL LIMITED (1995) EOC 92-680

Girton Grammar School had a school uniform policy which provided that:

'Hair must be well brushed in a neat, appropriate and conventional style. It must be held back if worn in a longer style. Boys shall have hair to collar length at a maximum.'

The complainant was a 15 year old male student at Girton Grammar. In an attempt to comply with the school's policy, he tied his hair back so that it was above his collar, and even wore a 'short back and sides' wig to school. The school told the complainant that he would not be allowed to attend for class unless he cut his hair.

The complainant argued that the school's policy discriminated against him on the ground of sex. He argued that a girl with the same length of hair would not have been prohibited from attending school.

The school argued that it was in its interests to maintain standards, and that its policy was aimed at ensuring neatness.

The complainant sought an interim order under s.46(3) of the now repealed Equal Opportunity Act 1984 (Vic). This sub-section allowed the Equal Opportunity Board of Victoria to make an interim order preventing a party to a proceeding from acting in a manner prejudicial to any final decision that the Board may make. The complainant ultimately sought an order allowing him to return to school and attend classes.

The Board granted the interim order, as it found that the complainant had established a prima facie case of discrimination. It also found that no detriment to the public interest would result from the order. The Board found that the requirement relating to the length of boys' hair 'singled out' boys, and was prima facie unfavourable treatment on the ground of sex. The fact that the school's discrimination occurred for the best of motives, that is to foster desirable values in students, was irrelevant. Once less favourable treatment is found, motive is irrelevant: Waters v Public Transport Corporation (1991) 173 CLR 349.

The Board balanced the public interest in the school maintaining its standards and rules, with:

'... the public interest to recognise growing capacity for decision making of children as they mature and the gradual change that occurs in those in authority over them (such as parents and teachers) from a somewhat coercive role to the role of a counsellor.'( page 78,156)

The Board found that, on balance, the public interest dictated that the order be made. The Board also found that detriment may accrue to the complainant's case if the order was not made. In the absence of an order, the complainant may have been forced to leave the school. He might ultimately have sought only damages at the final hearing, rather than a return to classes at the school. This meant that his case could be altered in a detrimental way.

The Board summarised the position as follows:

'... our decision should not be interpreted to indicate that a school cannot make rules governing its student body. Of course, it can. What it cannot do is to discriminate against a student within the terms, and on a ground, set out in the Act.' (page 78, 157)

The respondent's appeal was dismissed by the Supreme Court of Victoria: Girton Grammar School Limited v Cope (1995) EOC 92-713.

This case indicates that schools should carefully consider whether their rules and policies may be held to discriminate. Even the most well intentioned policies, which have the support of the majority of students and parents, may unlawfully discriminate against a student. The case provides a stark example of the principle that motive is irrelevant in cases of discrimination. http://wisdom.psinet.net.au/~aiswa/tehan.htm

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