In brief - It is essential that co-ed schools in Victoria considering strategies to achieve gender balance obtain legal advice about appropriate exemptions to ensure anti-discrimination laws are not breached
Co-educational schools are increasingly aiming to offer learning experiences to students consistent with equal gender ratios. This often follows complaints from parents that classes are “swamped” with students of one gender (almost always more boys than girls) and that this may have implications for learning outcomes.
However, schools cannot just alter enrolments to address gender imbalance. In Victoria, obtaining an exemption under anti-discrimination legislation is the only way schools can lawfully introduce affirmative action policies to attract more female students.
Single sex or co-ed?
Since the 1970s, enrolments in Victorian independent co-educational schools show that these schools have enrolled more boys than girls. According to research examined by Susan Bennett in her PhD thesis, despite decades of comparative research addressing the relative merits of co-educational vs. single-sex settings for girls and/or boys, the results have been inconclusive.1 Nevertheless, a school's gender context is often central to parental decision-making.
Exemption permitting gender-based discrimination
In Victoria, the Equal Opportunity Act 2010 prohibits discrimination on the basis of various personal attributes, one of which includes gender in the area of education. It is illegal to manipulate student enrolments to benefit a particular gender of student without an exemption from the Victorian Civil and Administrative Tribunal (VCAT).
In 2016, VCAT granted an exemption to Ivanhoe Grammar School to permit gender-based discrimination to enable the school to achieve gender balance in its enrolments. The school had been a single-sex institution for 77 years before becoming a co-educational school in 1992. Since that time, the school had taken a range of steps to try to increase the number of female students, including:
replacing the conventional cricket/football oval with a multi-sport facility, which can be used for various sports including hockey, netball, softball and volleyball; and
encouraging girls to hold leadership positions, including school captains, prefects, house leaders and cadets.
Despite these efforts, the school calculated that it would not reach its target of having 45% female students until 2029. The school requested the exemption so it could advertise for female students and offer those students financial assistance.
In deciding to grant the exemption to Ivanhoe Grammar School, VCAT held that the exemption was necessary because the proposed activities of the school (advertising for female students and offering those students financial assistance) would otherwise amount to prohibited discrimination and if the school continued with a skewed number of male or female students, it could not offer a true co-educational environment and would fail to meet the expectations of its students and parents. VCAT also noted that the efforts of the school over the past decade to increase its female cohort had failed. The exemption was granted for a maximum period of five years.
More recently, Woodleigh School was also granted an exemption by VCAT for similar reasons. In that case, the school was permitted to discriminate to achieve gender balance for either male or female students by
structuring waiting and enrolment lists to target prospective students of either gender;
advertising for prospective students in year levels where future waiting lists show a gender imbalance;
allocating student placements, other bursaries and enrolments targeted at prospective students; and
granting scholarships to promote gender balance.
Other co-educational schools that have obtained similar exemptions in recent years include Wesley College, Cornish College and Caulfield Grammar School.
Exemptions last for a maximum period of five years after which time it is assumed gender balance has been achieved, or the school must re-apply to VCAT for an extended exemption.
1 See Susan Bennett, Gender Relations in Elite Coeducational Schools, Deakin University (2015) at xi.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.