A group of parents want to challenge the local primary school’s uniform policy which lists separate clothing options for girls and boys. Girls must wear skirts (and not shorts), whilst boys can only wear jumpers, and not cardigans. The parents are concerned that this uniform policy places unnecessary constraints on their children, encourages socialisation into gendered norms from a young age, and limits their children’s ability to play freely.
The current position is that a decision about a school’s uniform policy, and the detail of that policy, lie with the authority of the school’s governing board. Schools have a duty, however, to comply with human rights and equality legislation to ensure that pupils are not discriminated against unlawfully by a uniform policy. Under the Equality Act 2010, girls and boys are protected from dress codes which discriminate—directly or indirectly—on their legal sex (which is a protected characteristic in the legislative framework). In 2021, the UK government issued updated guidance on school uniform policies, noting that schools can have differing dress codes for girls and boys, although it should have due consideration to unlawful discrimination, giving the example of a uniform for girls which is significantly more expensive.
Several interviewees in our research raised the problem of dress norms, which require children and adults to dress differently based on their sex or gender. Would decertification help?
Abolishing legal sex status would not necessarily outlaw gender and sex-specific norms. If schools and employers were legally permitted to make distinctions based on sex or gender (as they understood these terms), dress-codes could continue. However, in principle 2 of “Legislative principles for the decertification of sex and gender”, we suggest that employers, service providers, and others should not be permitted to require people to dress or behave differently on grounds of gender or sex. This would make it impermissible for an employee or school student to be told that they must wear the clothing deemed appropriate for their gender or sex. It could also be impermissible for someone to be told that they must dress and look in a way that is deemed recognisable as expressing a specific sex or gender. This would protect someone who wants to dress in a genderless manner involving, for example, a stylised mix of highly gendered clothing and grooming.
If a school student were sent home for wearing clothes deemed appropriate for another sex or gender (but not for them), this could be an example of unlawful direct discrimination. Indirect discrimination would occur, under principle 2, where a group of students identified their gender as disadvantaged by school rules and policies (and where the rules and policies were not deemed a proportionate way of achieving a legitimate aim) – for instance, a requirement that everyone must wear trousers. One difficulty here, from a decertification perspective, is that to bring a case the group of people would have to demonstrate that the trouser-rule disadvantages their specific gender-based group. This might be easier, in the immediate future, for a group who identify as girls or nonbinary to bring a case claiming indirect discrimination than a group who identify as boys.