‘Appearance’: the Never-Ending War

There was recently news that a French town had voted to introduce a uniform in six of its primary schools.  One wonders whether they knew what they were letting themselves in for. Though Department for Education (‘DfE’) for England strongly encourages schools to have a uniform, and provides non-statutory guidance to schools on uniform policies, it is ultimately left to schools’ governing bodies to decide uniform policies; there is no legislation in place that deals specifically with school uniform or other aspects of pupils’ appearance; and over the years there have been numerous media stories of pupil challenges to uniform policies.

The DfE’s guidance includes what should be fairly obvious: that the costs of uniforms to parents should be carefully considered; that the views of parents and pupils should be taken into account when changes are proposed; and governing bodies should ensure value for money when appointing suppliers.

However, the DfE’s guidance also says that governing bodies should carefully consider reasonable requests to vary their policies, and that a school must not have a uniform policy that is unlawfully discriminatory. Schools frequently seek legal advice on these points.

Some pupils have succeeded in challenges on grounds of race, religion or both – such as the boy whose school in Harrow did not allow pupils to wear their hair in ‘cornrows’, or the Sikh pupil whose school in Wales did not adapt its ‘no jewellery’ policy to permit her to wear the kara, and whose religious belief identified her as a member of an ethnic group.

Other pupils have failed in court on grounds of religion. Shabina Begum argued that by not permitting her to wear a longer and looser garment than allowed for by the school’s policy, her school had interfered with her human right to manifest her Muslim religion. The Court of Appeal’s decision in her favour was overturned by the House of Lords. Lydia Playfoot failed to satisfy the High Court that by refusing to vary its ‘no jewellery’ policy, meaning she could not wear a ‘purity ring’, her school had unlawfully discriminated against her as a Christian.

Increasingly schools are being asked to vary their uniform policies to accommodate transgender pupils, who are protected from discrimination by the Equality Act 2010. No court has yet ruled on this, and guidance from the Equalities and Human Rights Commission (‘EHRC’), expected in March of this year, is still awaited. Schools are therefore often uncertain as to how to proceed when responding to requests, or when setting and revising their uniform policies.

Rather than listing items of uniform for boys separately from items for girls, some schools decide to list all uniform items together and leave it to pupils to choose from this list what they will wear to school. Schools can have different uniforms for boys and girls, but should be open to reasonable requests for variation. In the absence of fuller guidance from the DfE, the EHRC or the courts, the current message for schools is to be flexible where they can, and to communicate openly with pupils and parents.

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