Sex discrimination in the public services: your rights
You have the right not to be discriminated against because of your sex when a public body supplies you with goods or services. This right applies to men, women and transsexual people, just as it would for any other service provider. For more about sex discrimination by service providers, see Sex discrimination by service providers [link to section].
Public bodies also have an additional duty to promote equality (rather than just avoiding discrimination). For more about this, read the Gender Equality Duty [insert link to section in Public bodies: what the law says].
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Accommodation
The Sex Discrimination Act 1975 (SDA) applies to organisations and individuals who provide accommodation and makes it unlawful for them to discriminate on the ground of sex when they dispose of premises or in the way they manage premises.
This includes housing associations and public bodies such as local authorities.
Example:
A local authority provides bungalow accommodation for women at age 60 and men at age 65. It is direct sex discrimination to use the different State pension ages for women and men when providing concessions in housing. These services must be available to men and women at the same age. This issue has been before the courts (Capon v Liverpool City Council [1988]) where it was ruled that age restrictions based upon the State retirement ages were unlawful.
Example:
A university accommodation office produces vacancy lists that specify the sex of students required to fill the accommodation vacancies.
As long as the person providing the accommodation can claim an exception to the Sex Discrimination Act, it would be lawful for the university to produce lists that show this restriction. However, the university should get a written statement from the accommodation provider that they are entitled to rely on the exception. This is because the vacancy lists are considered to be 'advertisements' and the university itself is liable under the SDA for any unlawful adverts it publishes, unless it can show that it relied on a statement from the advertiser that publication would not be unlawful and it was reasonable for it to rely on that statement.
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Exceptions
Some types of organisation are exempt from the Sex Discrimination Act when providing accommodation:
Voluntary bodies that are single sex, non-profit making and not set up under any laws can restrict membership to one sex and provide accommodation to those members. It can also provide accommodation to members of the public of one sex only where this is the main object of the organisation.
There is a similar exception for single sex charities where the provision of single sex accommodation is contained in a charitable instrument.
Communal accommodation – residential accommodation which includes dormitories or other shared sleeping accommodation – can be restricted to one sex only for reasons of privacy and decency or because of the nature of the sanitary facilities available.
For more on your rights in housing, see Rights in action: housing [insert link to section in Rights in Action]
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Benefits
In general, paying state benefits is not likely to be seen as a service similar to that which could be provided by a private body, and so the Sex Discrimination Act is unlikely to apply.
Public bodies do not have to follow the Sex Discrimination Act if it would mean breaking other legislation that they are bound by. For example, it is lawful to start paying the state pension at age 60 to women and 65 to men, even though this is different treatment, because not doing so would breach pensions law.
If you think you have been discriminated against because of your gender in the benefits you receive, see Using your rights [insert link to section] for more information on how to take your case forward.
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Benefits for people over 60
Men and women are often treated differently between the ages of 60 and 65. The underlying problem is that men and women currently have different state pension ages. Women may be eligible for a state pension at age 60 but men must wait until age 65. Other benefits and concessions are offered to men and women at different ages.
However, it is unlawful to use the unequal state pension age as a reason for discrimination when granting other concessions.
Example:
A local authority operates a concessionary bus travel scheme under the Transport Act. Men are eligible for a bus pass at 65 but women are entitled to it at 60.
This is unlawful sex discrimination. From 1 April 2003, the Travel Concessions (Eligibility) Act 2002 equalised travel concession eligibility for men and women at the age of 60. If your local authority refuses to give you a bus pass until you are 65, you should draw this Act to its attention.
Example:
A local football club offers women half price admission from age 60 but this is not available to men until they are 65. This is likely to be unlawful sex discrimination.
For more information on sex discrimination and pensions, see Pensions and related benefits [insert link to section]
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Child contact and family
Services provided by the courts and by agencies such as the Child Support Agency and CAFCASS will not usually be things that can be done by private bodies. This means that if you think you are experiencing sex discrimination in the way the service is provided, you are unlikely to have a claim under the Sex Discrimination Act.
You may still be able to challenge their decisions under the Human Rights Act: see Using your rights [insert link to section] for more information on taking a case forward.
If the service is similar to one that could be provided by a private body, the Sex Discrimination Act will apply as normal.
Example:
A man and woman are in the process of adopting a child, and tell the adoption panel that the man will be the main carer. Their application is unsuccessful and they suspect that this is because the panel wanted the woman to be the main carer.
The provision of adoption services by a public authority is likely to fall within the Sex Discrimination Act as it is similar to the provision of adoption services by private adoption agencies. If it can be proved that the application was denied because of the main carer’s gender, this would be unlawful direct sex discrimination.
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Health
Because the services provided by the NHS are similar to those provided by private hospitals, your right not to be discriminated against is likely to be protected by the Sex Discrimination Act in the same way as it would be in services provided by a private body.
Giving different medical treatment to men and women will not always amount to sex discrimination: some conditions affect men and women differently, so different treatment may be justifiable.
Example:
It is not unlawful discrimination to provide prostate cancer screening only for men or breast cancer screening only for women. There is a material difference between men and women in these cases.
Example:
A woman waiting for a urology appointment at her local hospital is told there are no free appointments for women, only for men. She is placed on a waiting list whereas if she were a man she would be seen immediately.
The provision of health services such as those of the urology specialist is covered by section 29 of the SDA. As you have been treated less favourably than a man, this may be direct discrimination and unlawful, depending on the circumstances.
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Justice and the legal system
The judicial functions of a court or tribunal do not fall within section 29 of the Sex Discrimination Act. Nor will they fall fall within the provisions of section 21A of the SDA. This is because there is a special exemption for judicial functions.
However, judges’ decisions do fall within the Human Rights Act.
For more about your rights when dealing with the legal system, read Rights in action: Justice and the legal system [insert link to section]
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Local Authority services
If the service your local authority is providing is similar to one that could be provided by a private body – for example, housing or leisure facilities – then you have the same protection against sex discrimination as you would from any other service provider.
It is not always discriminatory to provide single-sex services.
Example:
A local authority funds a leisure centre which runs single-sex swimming facilities for women. This is unlikely to be unlawful sex discrimination because the Sex Discrimination Act allows facilities to be restricted by sex where the potential user-group would be seriously embarrassed by the presence of the opposite sex, or where the users are likely to be in a state of undress.
Example:
A local authority is more likely to allocate housing to female single parents than to male single parents because it assumes that women are more likely to be the main carer for children.
If the council is basing its policy on gender-specific assumptions about who should be the main carer, rather than inquiring into individual circumstances, this is likely to be unlawful sex discrimination.
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Nationality
Men and women are often treated differently for the purposes of immigration and nationality services. However, because these decisions are usually made by the State and could not be made by a private body, they are unlikely to be unlawful sex discrimination.
Example:
The British Nationality Act 1981 provides that a child born outside the UK to a British born father cannot automatically acquire British citizenship through his or her father unless the parents were married. A child born outside the UK to a married or unmarried mother who is a British citizen would, however, acquire citizenship automatically. Unmarried fathers are therefore treated differently to married men and unmarried or married women.
If your family life is affected by an immigration or nationality decision – for example, if someone is being deported or applying for citizenship – you may have protection from the Human Rights Act. See Using your rights [insert link to section] for more information on how to take a case forward.
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Pensions, related facilities and transsexual people
Because the law says that men and women receive state pensions at different ages, sex discrimination in this area is a complex issue. You have rights under the Sex Discrimination Act and Human Rights Act not to be discriminated against unfairly because of your gender, but it is unlikely that paying pensions and related benefits at different ages for men and women will breach these rights.
Pensions andThe European Court of Justice has ruled that the UK Government should recognise transsexual people in their acquired gender. This means that a woman who has changed her sex from male to female should be able to claim her state pension at 60.
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Police
When you deal with the police you have the right not to be discriminated against because of your gender.
When they are investigating a crime or providing protection, the police are likely to be governed by the same rules as private service providers. When they arrest and charge people, or do other things that private bodies can’t do, they will be governed by the rules concerning public bodies.
For more about the difference between these situations, see Sex discrimination in public services: What the law says [insert link to section].
For more about your rights when you deal with the police, see Rights in action: Justice and the legal system [insert link to section].
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Political parties
The Sex Discrimination Act allows registered political parties (Section 42A) to regulate the selection of candidates for the purpose of reducing inequality in the numbers of men and women elected to office
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Prisons
Male and female prisoners in the UK are treated differently in several ways. If you have the same need for a service in prison (such as cleaning or clothing) as a member of the opposite sex but it is not provided to the same level, this could be unlawful sex discrimination.
Example:
Female prisoners get a clothing allowance and can buy their own clothes, whereas male prisoners wear standard issue clothing.
Although the male prisoners are provided with clothing, the fact that they do not get to choose their own clothes is likely to constitute less favourable treatment and to be unlawful sex discrimination. This may also be a breach of the Human Rights Act, which protects against unequal treatment.
Having separate prisons for women and men is not unlawful because of an exemption in the Sex Discrimination Act.
For more on your rights in prison, read Rights in action: justice and the legal system [insert link to section]
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