Equality and Exemptions: Discrimination to Promote Gender Equality in Education

Carey Baptist Grammar School Ltd (Anti-Discrimination Exemption) [2009] VCAT 2221 (23 October 2009) Carey Baptist Grammar School ('Carey') was also successful in its application to VCAT for an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act').  VCAT renewed Carey's exemption to enable it to treat prospective female students preferentially in order to promote a gender balance of the student body. 

Facts

Carey is an independent school that was initially for boys only.  However, in 1979, the school community decided that Carey would become coeducational, and it commenced enrolling female students. 

Deputy President McKenzie indicates that the benefits of coeducation include: ‘the opportunity to gain knowledge and understanding each sex of the other and to appreciate both the similarities and differences between the sexes, including differences in ways of thinking…[and] increasing self confidence in relations between the sexes’.  However, McKenzie DP indicated that these benefits are diminished or lost if there is a gender imbalance.  It is unclear what evidence was submitted in support of the benefits of coeducational programs or the need for gender balance to ensure enjoyment of its benefits.

Carey has been granted exemptions since 1997 to advertise for prospective female students to enter the school, and to structure its waiting lists, allocate student placements and offer bursaries and enrolments in a manner that is preferential to female students.  The number of female students at Carey has increased over this period such that, in 2009, 48 per cent of the total student body was female.

Despite this, McKenzie DP found that, without the exemption, ‘[t]here would be a growing majority of boys to girls across the various year levels of the school, and the school's coeducational model might fail’.

Decision

The principles enunciated by President Bell in Lifestyle Communities Ltd (No 3) [2009[ VCAT 1869 were applied.  Namely, McKenzie DP held that, in determining whether to grant an exemption under the EO Act, it is necessary to consider which human rights are engaged and whether the proposed exemption limits those rights in a way that is justified under s 7(2) of the Charter.

Deputy President McKenzie held that the application engaged the right to equality, as protected by s 8(3) of the Charter.  Notably, McKenzie DP did not consider the right of children to protection under s 17 of the Charter, which is arguably relevant considering the evidence that coeducation is advantageous for boys but disadvantageous for girls.

Deputy President McKenzie considered the exemption to be a justified limitation on the right to equality of prospective male students.  This is because the limitation aims ‘to provide choice in education’ and ‘ensure that the coeducational experience [at Carey] continues to be viable and to benefit both sexes’.  In McKenzie DP's view, the exemption is proportionate, and the least restrictive way to prevent Carey's female students being ‘swamped’ and coeducation undermined.

Carey's submission that the exemption was not discriminatory because it assisted or advanced female students, who are disadvantaged because of discrimination, was rejected.  Carey did not demonstrate how girls are disadvantaged in their education, and so it could not rely on the 'special measures' provision in s 8(4) of the Charter.

It is a condition of the exemption that Carey must notify VCAT if, at any time, there is an equal gender balance in each and every year level at each school campus.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2221.html. 

Melanie Schleiger is a lawyer with Lander & Rogers