When co-educational schools can’t strike the right (gender) balance

Moores’ recent success in assisting Carey Baptist Grammar School to obtain an exemption under the Equal Opportunity Act 2010 (Vic) (the Act) to lawfully discriminate in student enrolments, is an example of an effective and strategic pathway for schools to ensure an appropriate gender balance in their student cohort without breaching their legal obligations.

Who wins in the gender balance?

In our analysis of the gender balance in co-educational schools in Victoria, 90% of schools reported more male students than female students.[1] At some schools, this was as high as 50% more male than female students. Intrinsic to the strategic plans of many such schools is the principle that, in order for the benefits of co-education to be achieved, a gender balance is required. Schools increasingly want to reflect modern society, where people of all genders work and socialise together, and school students are no longer groomed for distinct gender-bound pathways.

Where there is a lack of equitable gender balance, this can lead to a domino effect, in which female students are withdrawn by their parents due to noticeable imbalance in gender in the student cohort.

What does the law say?

All educational authorities in Victoria are bound by the provisions in the Act, which relevantly, prohibits unlawful discrimination on the basis of gender. Many co-educational schools seek to favour the enrolment of one gender over the other to maintain a balance of male and female students. However, successive decisions in the Victorian Civil and Administrative Tribunal (VCAT) have held that offering bursaries or scholarships, having separate waiting lists for different genders and offering placements, constitutes discrimination under the Act because it is treating a prospective student or student unfavourably on the basis of their gender.

Unless a school successfully obtains an exemption to discriminate under section 89 of the Act from VCAT, it will be at risk of a discrimination claim where it seeks to prioritise the enrolment of students on the basis of gender.

Next steps

If you are a school which would like to seek the flexibility to:

  • structure waiting and enrolment lists to target prospective students of either gender, including have separate waiting lists;
  • allocate student placements in a manner that prioritises students of a specific gender;
  • offer enrolments, bursaries and scholarships targeted to a specific gender; and
  • advertise specifically for male or female students to enter the school at any year level where there is an imbalance in male and female students,

we recommend that you consider seeking an exemption under the Act from VCAT to enable you to lawfully discriminate.

Given that many co-educational schools want to prioritise gender balance, it goes without saying that schools which can successfully maintain an equitable balance have a distinct competitive advantage over others .

How we can help

If you would like to explore your school’s legal options in lawfully maintaining a gender balance and furthering your strategic goals and objectives, please do not hesitate to contact us.

[1] This is based on our analysis of co-educational schools in Victoria who have publicly available information regarding the ratio of their students.