School uniform policy found to be discriminatory on religious grounds

A Melton Christian school has been found to have discriminated against a young Sikh student because its uniform policy explicitly required boys to have short hair and did not permit students to wear any head coverings related to a non-Christian faith.

The student, who was 5 years old, had uncut hair and wore a head covering called a patka, which were essential practices of the Sikh religion. The student was therefore not able to comply with the school’s uniform policy, by cutting his hair and not wearing a patka, because of his religious belief.

The school amended its uniform policy in September 2014 to explicitly state that boys must have short hair and that students may not wear any head coverings related to a non-Christian faith. The policy stated:

Boys’ hair must be short, off the eyebrows, ears and shirt collar with obvious facial hair removed. Head and/or face coverings that are related to faith-practices of faiths other than the Christian faith are not part of the [school] so may not be worn to school.

The student’s parents did not proceed with their enrolment application for their young son after being told that they would have to comply with the policy.

The decision of VCAT was that the policy, in so far as it prohibited the wearing of a patka and required boys to have short hair, was not reasonable, and was therefore discriminatory, because:

• the school was unable to satisfy VCAT that its policy reflected the view of the school community when it was amended
• prohibiting head coverings of a non-Christian faith did not achieve the results sought by the school of uniformity, inclusivity, and protection from inadvertent discrimination
• the school could make a reasonable adjustment to the uniform policy by allowing the student to wear a patka in the same colour of the school uniform
• while it was a Christian school, it had an open enrolment policy which meant that it accepted enrolment of students from other faiths, with a little over 50% of the school community not identifying explicitly as Christians and many families at the school having no religious faith at all
• it was not reasonable to accept enrolment applications from students from non-Christian faiths only on condition that they do not look like they practice a non-Christian religion.

The school sought rely on two exceptions under the Equal Opportunity Act, namely:

• that an educational institute that operates wholly or mainly for students of a particular religious belief may exclude from that institution students who are not of that religious belief
• An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students.

VCAT held that the school could not rely on the religious belief exception because even if the school operated mainly for the benefit of students from one religious belief, the exception did not allow the school to exclude people with some religious beliefs but not others, or to exclude people who have a particular religious belief, such as Sikhs who wear patkas.

Further, VCAT also held that the school could not rely on the exception that allows schools to set and enforce reasonable standards of dress, appearance and behaviour, because the exception did not permit schools to have uniform policies that were discriminatory on the ground of religious belief.

Following VCAT’s decision, the proceeding has been set down for a compulsory conference to enable the parties to attempt to reach an agreement in relation to what orders, if any, VCAT should make.

Reference: Arora v Melton Christian College (Human Rights) [2017] VCAT 1507