TAH v A School[2024] QCAT 434

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This complaint concerns the required dress of a female student on formal school occasions.
2. [2]
   The complaint was made to the Queensland Human Rights Commission and referred by the Commissioner to the tribunal.
3. [3]
   The complaint was that the school’s uniform policy required female students in years 7 to 12 to wear a skirt to formal school occasions.  That would include school outings or excursions, school ceremonies and events, class photographs, awards nights and external events.  Male students could wear shorts or trousers which was their usual school uniform.  In the complaint, the policy was said to amount to both direct and indirect discrimination of the complainant, a female student at the school in the age group concerned, on the basis of the attribute of sex. 
4. [4]
   The formal occasion uniform policy affected the complainant for about one year during her enrolment at the school.  The year started when a new uniform policy, the subject of this complaint, was introduced, and ended when the complainant left the school.  Very soon after the policy was introduced, the complaint to QHRC was made. 
5. [5]
   Although the alleged discrimination occurred some time ago, there were certain delays in determining it arising from the fact that there were two hearings of the complaint in the tribunal.  The first hearing was adjourned after it started because the parties had come to an agreement in principle about settling the matter.  Unfortunately this did not convert to a formal and binding agreement and so a second hearing was required.  The parties then made written final submissions but these were substantially delayed by various events.
6. [6]
   The complainant is still under age 18, and therefore it is necessary to avoid giving details in this decision which could identify her.  For this reason some details are given more generally than would otherwise be the case.
7. [7]
   With respect to direct discrimination it was said in the complaint that the complainant was treated less favourably than a male student in the same or not materially different circumstances because:

   1. The complainant suffered a greater financial burden than a male student by having to purchase two sets of school uniforms.
   2. Greater care was needed by the complainant to maintain modesty when sitting to ensure the skirt was properly covering her, compared with a male student who could wear shorts or trousers.
   3. In cooler weather, even if wearing stockings, the complainant would not be as warm as a male student who could wear trousers.
   4. In school outings and excursions, the complainant was restricted in the physical activity she could do compared with a male student who could wear shorts or trousers.
   5. The complainant was subject to negative psychological effects by having to wear a skirt on formal school occasions and a male student would not be.  The negative psychological effects arose from ‘negative gender stereotypes and gendered power relations’, and because traditional gender identities were entrenched by the clear visual divide between female and male students.  Also, wearing a skirt sexualises female students because underwear may be exposed.
   6. If the complainant failed to comply with the formal occasion skirt requirement she could face negative consequences of exclusion or suspension or other lesser consequences not faced by a male student.
   7. It would be detrimental to the complainant’s education and unfair, if the complainant failed to attend a formal occasion because she did not wish to wear a skirt and this would not happen to a male student.
8. [8]
   With respect to indirect discrimination it was said that the school had imposed a term that female students were required to wear skirts to formal school occasions and that implicitly this was a term that students must be male in order to be permitted to wear shorts or trousers to formal occasions.  It was said that this was indirect discrimination because:

   1. The complainant was not able to comply with the term requiring her to be male in order to wear shorts or trousers to formal occasions because she was a female student.
   2. A higher proportion of male students, indeed all male students, were able to comply with the term.
   3. The term was not reasonable because there was no clear rationale for imposing such a term, and shorts or trousers were everyday attire for girls and women.
9. [9]
   The complaint therefore relied these sections of the Anti-Discrimination Act 1991 (Qld) (ADA): section 10 (which defines direct discrimination on the basis of an attribute) and section 11 (which defines indirect discrimination on the basis of an attribute).  Section 39 prohibits such discrimination by education authorities in certain circumstances, and of particular relevance here by treating a student unfavourably in any way in connection with the student’s training or instruction.  The complaint may also rely on other parts of section 39 that is where it prohibits any discrimination by any variation of the terms of a student’s enrolment or by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority.  The attribute relied on by the complainant is sex.
10. [10]
    Soon after the referral to the tribunal, the tribunal gave directions requiring the ‘contentions’ of the parties to be provided.  Contentions were made on behalf of the complainant,^[1] and these largely repeated the points made in the complaint as set out above. 
11. [11]
    An issue was added.  It had been said on behalf of the school that the complainant could apply for an exemption from the formal occasion uniform policy.  On that basis it was said that this was a further issue of discrimination (presumably referring to less favourable treatment) because male students did not have to apply for an exemption.^[2]  This form of less favourable treatment was added in more detail in the second filed contentions.^[3] 
12. [12]
    An issue was removed.  The ‘negative psychological effects’ [item (e) of less favourable treatment above] did not appear in the second filed contentions.
13. [13]
    One of the contentions made on the complainant’s behalf also contained information about the complainant’s preferred uniform at school, her unform purchasing decisions and her reasoning for making those decisions.^[4]
14. [14]
    For the school, the contentions which were filed in the tribunal denied that there was any less favourable treatment, and described the allegations as ‘offensive and baseless’.  The submissions addressed the lack of less favourable treatment which had happened prior to the complaint, but in doing so did not deal with the possibility that it can be directly discriminatory to ‘propose to treat’ someone less favourably and that such treatment does not have to be past treatment.  The contentions said that the formal occasion uniform policy was consistent with community standards and most female students chose to wear skirts for everyday school wear despite being able to wear other garments.^[5]
15. [15]
    The contentions filed on behalf of the school said that the term relied on by the complainant in the indirect discrimination complaint was in substance that the formal occasion uniform policy imposed ‘a condition requiring girls to be boys’, and that it was assumed that a female student had a choice about dress on formal occasions when this is not the case.  It was said that in any case the policy was reasonable because it only applied to events for about eight hours a year, unless a student was in the school band or was selected to attend other specifically formal external occasions.  It was said that other than school photos, the events are all seated events that occur indoors and none of them involve physical activity.

The hearing

16. [16]
    At the first hearing it was necessary to consider whether the complaint had been carried on in the tribunal by someone able to do so.  The complaint made to QHRC was made in the name of the complainant’s mother and father, and on the complaint form they said they were making the complaint on behalf of their daughter who was under the age of 18 and therefore could not make the complaint herself. 
17. [17]
    The complainant had appointed her father to act on her behalf in the complaint to QHRC, and the complaint had presumably been accepted by QHRC on the basis that the father was an ‘agent’ of the complainant under section 134(1)(b) of the ADA.  The result was that the father could make the complaint on his daughter’s behalf.  This also meant that when conciliation within QHRC failed, the father was able to require the Commissioner to refer the complaint to the tribunal under section 166(1) of the ADA.  This was done when the father signed a referral form ‘as agent for (the complainant)’.
18. [18]
    Section 166(5) of the ADA provides that for the purpose of the QCAT Act, the complainant is the applicant.  Hence when the referral was made to the tribunal, in the referral documents the complainant was named as the applicant, and her father was named as her representative.
19. [19]
    There was no difficulty with the tribunal accepting the referral, but it meant that a person under the age of 18 and therefore without legal capacity was carrying on an application in the tribunal.  In the mainstream courts this is not permitted, and an application can only be pursued by a person without legal capacity if they do so by a litigation guardian.^[6]  The tribunal’s governing statute and rules are silent about what happens in this situation.
20. [20]
    There was no further formality taken by the tribunal to deal with this issue, but leave was given under section 43 of the QCAT Act for the complainant to be legally represented.  In passing I would note that section 43(2)(b)(i) permits a child or person with impaired capacity to ‘be represented by someone else’.  There is a difference of opinion in the tribunal whether section 43 is concerned only with who can represent a party in an oral hearing or whether it extends to making submissions, signing, filing and serving documents and being a channel of communication for the party.^[7]  But in any case there is no suggestion that either the automatic permission under section 43(2)(b)(i) or leave to be legally represented under section 43 has the same effect as the appointment of a litigation guardian.
21. [21]
    A similar issue arose in BA, DC, FE v State of Queensland [2022] QCAT 332 when Member Fitzpatrick decided that in the tribunal it was not essential for a person without legal capacity to have a litigation guardian to pursue an application, provided they were able to give instructions to their legal representative.  Where they were not able to do this, then a litigation guardian would need to be appointed.  Member Fitzpatrick decided that where a litigation guardian was necessary, the tribunal could appoint one under section 28 of the QCAT Act and it was possible to adopt Rule 95 of the Uniform Civil Procedure Rules 1999 (Qld) and Form 13 in those Rules, to obtain the litigation guardian’s consent so that such an order could be made.
22. [22]
    How to regularise matters was discussed at the first hearing.  In the background was the effect of the Human Rights Act 2019 (Qld) under which, for decisions of this sort, the tribunal would be acting in an administrative capacity requiring it to have regard to a human right relevant to the decision and not unreasonably to limit such a human right.^[8]  It was agreed that the father would be appointed litigation guardian.  On that basis I followed the approach in BA, DC, FE.  The father signed a ‘Consent of Litigation Guardian’ form which was in this form:

I (name of proposed litigation guardian) of (address) have consented to act as litigation guardian in the proceeding for (name of complainant).

I am not under a legal incapacity and have no interest in the proceeding adverse to that of (name of complainant).

23. [23]
    Thereupon I made an order appointing him litigation guardian in the following terms:

(name of father) is appointed litigation guardian for (name of complainant) pursuant to s 28(1) and s 28(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009

24. [24]
    Soon before the first hearing on behalf of the complainant an application was made on behalf of the complainant for various orders.^[9]  Many of these needed to be dealt with and were dealt with at the first hearing.  Part of the application concerned objections to evidence, and this was dealt with between the two hearings by agreement between the parties.  Another was about the orders requested from the tribunal should the complaint succeed.  This was withdrawn at the first hearing on the basis that the parties had reached agreement to settle the matter altogether.  As it has turned out, it has not been necessary to deal with this part of the application since the complaint has not succeeded.  At the second hearing it was confirmed on behalf of the complainant that there were no outstanding applications before the tribunal.
25. [25]
    There was an application made on behalf of the school to strike out the complaint and this was heard at the start of the second hearing.  For reasons given orally at the hearing this application failed.

Evidence given

26. [26]
    Since the complainant was under the age of 18 at the time of the complaint and remained under 18 at the time of the first hearing and the second hearing, some consideration had to be given by the parties and the tribunal as to how her evidence was to be put before the tribunal.
27. [27]
    The tribunal’s directions required evidence to be in statements of evidence, and stated that no party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the tribunal.^[10] 
28. [28]
    There was a statement of evidence signed by the complainant dated 24 July 2022 and filed in the tribunal.  There was some discussion between the parties and the tribunal about whether she was needed for cross examination and if so, how that could be done.  It was proposed that there would be a private session, but recorded, with a limited number of attendees.  As it turned out, the parties agreed some redactions from her statement of evidence and agreed that she was not needed for cross examination and that the statement of evidence could be read by the tribunal.
29. [29]
    Evidence was heard from the complainant’s father.  He made a witness statement dated 20 October 2022.  There was also an unsigned document entitled ‘Statement of Evidence of Complainant – July 2022’,^[11] which appeared to be unsigned evidence of the complainant, but it turned out that it was a document written by the complainant’s father and so it was his evidence and not the complainant’s evidence.^[12]
30. [30]
    The tribunal is not bound by the rules of evidence,^[13] and therefore is able to accept secondary evidence about detriment suffered by a complainant allegedly because of discrimination.  For younger complainants this is an important provision.  
31. [31]
    At the first hearing I explained that the tribunal would accept in evidence all the documents submitted to the tribunal in the referral from QHRC, including the original complaint.  The fact that it is correct to do so appears from the tribunal’s statutory provisions examined by the then President of the tribunal Justice Wilson in Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218.^[14] 
32. [32]
    Here the complaint itself was not done by the complainant who was much younger at the time, but was done on her behalf by one or both of her parents.
33. [33]
    There is a limit to how far the tribunal can go with the relaxed approach to the necessary evidence to support a discrimination complaint.  It should be remembered that a complainant has the burden of proof before the tribunal.^[15]  It would be unfair to a respondent to assist a complainant to prove her case or to give advice to a complainant about how to conduct the proceedings.^[16] One factor here is that the complainant was represented by a firm experienced in court or tribunal work.  In Davis v Metro North Hospital and Health Service [2019] QCAT 18, the tribunal did call a witness and this turned the case in the complainant's favour.  But in that case there was evidence before the tribunal which needed clarification, and the witness called by the tribunal was the best person to do so. 
34. [34]
    Expert evidence was filed in the tribunal on the complainant’s behalf from a registered psychologist which discussed questions of school uniform and their effect on children, in particular uniforms that female students have to wear.  The parties agreed that this evidence would not be relied on by the complainant, so it was not admitted into evidence.
35. [35]
    In deciding whether the complainant had been discriminated against, the tribunal is not acting in an administrative capacity for the purposes of the Human Rights Act 2019 (Qld).  Nevertheless, the tribunal must apply and enforce those human rights that relate to court and tribunal proceedings and limit them only to the extent that is reasonable and demonstrably justifiable in accordance with the proportionality test.  The tribunal must interpret the ADA in a way which is compatible with human rights.^[17]

Direct discrimination

What is meant by less favourable treatment in section 10

36. [36]
    It is necessary in this complaint to consider carefully what is meant by less favourable treatment in section 10 of the ADA, which contains the definition of direct discrimination with the assistance of sections 7 and 8. 
37. [37]
    Firstly, it can be seen from the words of section 10 that direct discrimination requires less favourable treatment of the complainant.  So in this complaint it would be insufficient to show that female students generally had been treated less favourably than male students by the formal occasion uniform policy, if it were not also shown that the complainant was treated less favourably than a comparable male student by the policy.  That the treatment must be of the complainant is also shown by the terms of section 39 (which with section 37, prohibits direct discrimination in the education area), and section 134(1) (who may complain).
38. [38]
    Secondly there is no doubt that whether or not there is less favourable treatment should be tested objectively.  This means that the complainant’s belief that the treatment is less favourable is insufficient to found a complaint of direct discrimination.  But it does not mean that a complainant’s sensitivities, perceptions and values should be ignored.  If they are held on reasonable grounds, then they can be taken into account.^[18]
39. [39]
    Finally, the wording of section 10 makes it clear that for there to be direct discrimination the treatment must be less favourable than the treatment of the comparator.  The comparator is the person without the attribute who is in the same circumstances as the complainant, or in circumstances which are not materially different from those of the complainant.
40. [40]
    In final submissions filed after the hearing,^[19] on behalf of the school an attempt was made to identify the correct comparator for the purposes of section 10, and it was proposed that it was a student who was not female and who did not comply with the formal occasion uniform policy.  This was on the basis (it was said) that it was meaningless to disregard the fact of non-compliance with the policy which was a material circumstance.  On this basis it was said that there could be no direct discrimination because male and female students who did not comply with the policy would be treated the same.^[20] 
41. [41]
    Although this is an example of how a comparator can be adjusted to produce the desired outcome, I do not think this is the correct comparator, simply because the evidence was that the complainant did comply with the formal occasion uniform policy.
42. [42]
    It seems to me that since all students were expected to attend formal school occasions the comparator is simply a male student expected to attend formal school occasions in the same way as a female student would be.  And the question is whether, in its uniform policy applying to formal school occasions, the school treated or proposed to treat the complainant less favourably than such a male student.

Evidence in this complaint about less favourable treatment

43. [43]
    As mentioned above, the complaint contained a list of heads of less favourable treatment.  When considering whether there is evidence to show less favourable treatment it is helpful to do this by considering each head separately.  However it is also necessary then to stand back and consider whether the evidence shows less favourable treatment overall and generally. 
44. [44]
    On the question of greater financial burden, on paper the notion that because of the formal occasion uniform policy the complainant as a female student would suffer a greater financial burden than a male student appeared to have some validity.  The complainant’s father gave evidence that it meant that the complainant would need two sets of school uniforms and he gave the costing for these.^[21]  But it turned out that the family’s financial circumstances were such that there was no hardship in having to purchase another uniform and the complainant’s father said in his evidence that the extra cost was not a matter of concern.^[22]  The evidence from the school was that there had been no concerns expressed by other parents about any extra expense.^[23]  In any case, such a purchase was not necessary because the school had skirts available on loan for formal school occasions,^[24] and as the complainant’s father accepted when giving evidence, a skirt could be a ‘hand me down item’.  As it turned out, on the evidence, the extra expense was not less favourable treatment.
45. [45]
    On the question of modesty, the complainant’s father gave evidence that the complainant had expressed to him a clear preference ‘for trousers for comfort, and without having to move or sit in such a manner that she would risk exposing herself, including formal events where a large number of people would be present, adding to her stress and anxiety about the situation’.^[25] 
46. [46]
    The complainant herself put it this way:^[26]

When wearing a skirt, there is an extra level of thinking required about the way I move and sit, as to not expose myself.

47. [47]
    The reference here to ‘expose myself’ is exposure of underwear, as can be seen from the remainder of the complainant’s witness statement.  In practice, the risk of such exposure is reduced by the length of the skirt - the uniform policy requires the skirt to touch the ground when kneeling, so the skirt is quite long.
48. [48]
    The complainant’s father accepted in evidence that there was nothing in the uniform policy stopping a female student wearing shorts or bike shorts under the formal uniform skirt, and he accepted that wearing those would solve the modesty issue completely. 
49. [49]
    Although his evidence that wearing shorts or bike shorts under the formal uniform skirt would solve the modesty issue completely was probably an expression of opinion rather than evidence of fact, it considerably weakens the evidence of less favourable treatment on the modesty grounds.
50. [50]
    In the application brought on the complainant’s behalf before the first hearing a request was made that the tribunal take ‘judicial notice that girls who are in secondary school are likely to have modesty and discomfort issues, as their bodies change during puberty, and these can be negatively impacted, aggravated and/or exacerbated when wearing skirts and dresses, because of the garments design’.  Although this application was not pursued, I can accept this as a submission about evidence.  Although some of the things in the list are more obvious than others and could be worthy of judicial notice because it would be a waste of time, costly or difficult to prove them,^[27] I do not think that taking judicial notice of these things would help me to decide whether there was less favourable treatment.  This is because, as mentioned above, it is less favourable treatment of the complainant, and not girls in secondary school generally, that is central to the direct discrimination complaint.
51. [51]
    On the question of comfort depending on the weather conditions, in her evidence the complainant explained that:

long pants are warmer than a skirt both during cooler times and times that I feel the cold

52. [52]
    There is no direct statement here that it was a detriment to the complainant to be cooler.  However, it may be said that the implication of this evidence is that on occasions the complainant did feel the cold and if she did so on a formal school occasion, she would prefer to wear trousers rather than a skirt. 
53. [53]
    The evidence from the school was that most of the formal school occasions were inside,^[28] but I accept as was put in cross examination that school outings and excursions would involve some exposure to the outside, and that travel to school might do so, although there would be nothing to stop the complainant from taking a change of clothes if she was concerned about feeling cold.
54. [54]
    However, there is no explanation whether wearing tights, stockings or knee highs would assist, or whether in warmer times (which would be most of the time in Queensland) it would be better to wear a skirt than trousers. 
55. [55]
    On the question of restriction of physical activity, there is no evidence presented on the complainant’s behalf about such occasions, and the evidence from the school was that there is no such physical activity at formal school occasions.^[29]  So it does not appear that there could be any less favourable treatment under this head.
56. [56]
    As said above, the negative psychological effects head was not in later amended contentions, and the expert evidence which was to support it was withdrawn.  In the circumstances I do not need to consider it further.
57. [57]
    The final three heads of alleged less favourable treatment would only occur if the complainant decided not to wear a skirt on formal school occasions as required.  It seems to me however, that all these merge into the question whether the complainant was treated less favourably than a male student by the formal occasion uniform policy.  This is because the less favourable treatment in these three heads would arise from a decision not to wear a skirt on formal school occasions as required, rather than from the policy itself.
58. [58]
    One of these is the suggestion that it was detrimental to the complainant’s education and unfair to the complainant if she failed to attend a formal occasion because she did not wish to wear a skirt.  I accept the evidence given by the school that it would be ‘unlikely’ that a female student would be sent home from a formal event if not wearing a skirt.^[30] 
59. [59]
    Another is that she could face adverse consequences for non-compliance, if she attended a formal occasion not wearing a skirt.  Apart from it being unlikely that a female student would be sent home from a formal event if not wearing a skirt, any other consequences are just speculation.  In any case the complainant’s father accepted in evidence the consequences for non-compliance of the formal occasion uniform policy was the same for female and male students.  On this basis it is difficult to see that this less favourable treatment can be considered as a separate head.   
60. [60]
    Any difficulty faced by a female student in having to wear a skirt on formal school occasions was lessened by being able to apply for an exemption, and there was evidence that this had in the past been granted.^[31] Indeed, the evidence was that the complainant did apply for exemptions and they were granted.  It was said on the complainant’s behalf that it was a disadvantage to have to apply for an exemption and a male student would not have to do so.  In her evidence the complainant put it this way (referring to wearing formal shorts or trousers):

I had to ask permission to wear these items to a formal occasion, unlike the male students.  This is unfair and sexist.

61. [61]
    But the fact is that the complainant was not required by the formal occasion uniform policy to apply for an exemption.  She would only need to do so if she decided not to wear a skirt. 

More general considerations

62. [62]
    Female students did not have to wear a skirt on ordinary school days, that is, non-formal occasions.  They could wear culottes, shorts or trousers instead.  Whether the complainant was treated less favourably than a male student by the formal occasion uniform policy is informed by the fact that, despite having that choice, the overwhelming majority of relevant female students chose to wear a skirt.  This was the same skirt that was required for formal occasions.^[32]  It appears from the statistics provided by the school that female students were generally content to wear skirts.  These means that if, for one reason or another, the complainant did not want to wear a skirt on formal occasions, this view was not shared by other female students.
63. [63]
    Standing back from the specific heads considered above and taking an overall view, the evidence is insufficient to show that the formal occasion uniform policy resulted in, or would have resulted in, less favourable treatment of the complainant as a female student over male students.  To put this another way, there was different treatment between the sexes, but the evidence does not show that the different treatment was unfavourable to the complainant.

Indirect discrimination

64. [64]
    There is a difficulty fitting this complaint into the indirect discrimination provisions of the ADA.  That is because the indirect discrimination provisions are drafted in the conventional form, which would normally require a disparate and adverse effect from the same treatment meted out to those with an attribute and those without (in this case therefore the same treatment of female and male students). 
65. [65]
    The distinction between direct and indirect discrimination was described in Waters v Public Transport Corporation (1991) 173 CLR 349:^[33]

3. [21]
   A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination.  Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).  On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter.  The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. (1971) 401 US 424.  Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

3. [23]
   For there to be (indirect) discrimination .. there must be a requirement or condition imposed upon the complainant with which the complainant does not or cannot comply but with which a substantially higher proportion of persons of a different status do or can comply.

66. [66]
    The treatment here was different between the sexes and not the same.  In an attempt to try to make an indirect discrimination case, those representing the complainant identified the term with which the complainant had to comply as:

that female students were required to wear skirts to formal school occasions and that implicitly this was a term that students must be male in order to be permitted to wear shorts or trousers to formal occasions

67. [67]
    As those representing the school have said in their submissions, this amount to an allegation that the term was:

a condition requiring girls to be boys

68. [68]
    The fact is that the formal occasion uniform policy treated female students differently from male students, and it is that difference in treatment which needs to be examined in this complaint.  That is a direct discrimination issue.
69. [69]
    It is true that the same policy applied both to male and female students, but within that policy they were treated differently.  It is artificial to try to identify a disparate and adverse impact arising from the different effect of the policy on female and male students because in doing so, it becomes clear that the different effect does not arise from the same policy.  The different effect arises from differences in the policy applying to female and male students. 
70. [70]
    This means that it is not possible to identify a term which applied both to female and male students and which requires to be examined under the indirect discrimination provisions of the ADA.  As can be seen above, any attempt to identify such a term fails.
71. [71]
    This is not therefore a complaint which can be dealt with under the indirect discrimination provisions and I would dismiss the indirect discrimination complaint for that reason. 

Conclusion

72. [72]
    For the reasons given above, both the direct and indirect discrimination complaints fail and the complaint is dismissed.