Sex discrimination in public services: what the law says

Your protection from sex discrimination in services provided by public bodies comes from:
 

  • the Sex Discrimination Act 1975
  • the Gender Equality Duty
  • the Human Rights Act 1998
  • European law

Changes to the law
The European Goods and Services Directive 2004/113 has widened the definition of indirect discrimination in the provision of goods and services.

Sex Discrimination Act

This section is to provide guidance on how public authorities should provide goods, facilities and services where they do so as a public function in order to comply with the requirements of the Sex Discrimination Act ('SDA').

Longstanding provisions under s29 of the SDA applicable to the provision of goods, facilities and services

The SDA already applies to both public and private organisations providing goods facilities and services to the public. Section 29 of the SDA makes it unlawful to discriminate, for reasons connected to sex, in the provision of those goods, facilities and services. This applies to public authorities (for example, swimming, leisure and library facilities provided by a local authority) and to private bodies (for example, shops, restaurants, hire companies etc). For further information on this please refer to Consumer Rights and the Sex Discrimination Act.

When will Section 29 of the SDA not apply to public authorities providing goods, facilities and services?

Section 29 of the SDA applies only to those services or facilities which are of a similar kind to those which might be provided by a private person.  For example: Transport, as both public and private organisations provide this service; Health services which can be provided by both the NHS and the private sector. 
 
Section 29 of the SDA does not apply to acts done on behalf of the Crown (public functions) as these are considered to be different from those which could be done by a private person. For example most social security and immigration matters are not likely to be able to be provided by a private person or organisation.

What additional protection applies?

Public authorities are prohibited from discriminating when carrying out public functions (in addition to the existing protection under section 29 of the SDA) in providing services to the public. A public function is an activity carried out by a public authority which cannot be done by a private body. The types of situations covered by section 21A of the SDA include:

Formulating or carrying out public policy (for example, devising policies and priorities in health, education and transport etc. or making decisions on the allocation of public money).

Exercising regulatory or law enforcement powers (for example: police powers relating to stop and search, arrests and detection of suspects; the regulatory and law enforcement powers of bodies such as Her Majesty’s Revenue and Customs; local authority licensing functions; tax inspection and collection; trading standards activities).

The exercise of a statutory duty or statutory powers or discretion in certain circumstances (for example, a Secretary of State refusing to give leave to enter or remain under immigration provisions). 

What if the public authority provides a service when carrying out a public function?

Where a public authority provides a service as a result of carrying out a public function, for example, a local authority looking after children, this will usually fall within section 29 of the SDA. The test as to whether an activity is covered by section 29 and not section 21A is whether the activity in question constitutes a ‘service to the public’ as opposed to, for example, the public function of discharging a statutory duty such as controlling immigration or collecting tax.
 
In certain circumstances a public authority may be carrying out a public function and providing a service at the same time.  For example, the Inland Revenue performs two separate activities: First a public function defined by statute of collecting tax and secondly a service of providing taxpayers with information regarding their entitlement to tax relief.  The former will be covered by section 21A of the SDA and the latter by section 29 of the SDA. Section 21A will only apply where the discrimination complained of is not made unlawful by another section of the SDA.

When will Section 21A of the SDA not apply?

There will, however, be a number of exceptions to section 21A of the SDA which will allow women and men, in certain circumstances, to be treated differently. These include services provided by the House of Commons, the House of Lords, and various security agencies.

Public authorities involved in preparing, making or considering Acts of Parliament, or in preparing, making, confirming, approving or considering other legislation.

Actions by public authorities which are necessary for the purpose of complying with a requirement of an Act of Parliament or other legislation.

Judicial functions and decisions not to start or continue criminal proceedings will not be covered.

Can single sex services be provided by public authorities?

Section 21A of the SDA will also allow the provision of separate services or services for one sex only in a number of circumstances.

The provision of a service for one sex only where only persons of that sex require the service. The provision of separate services for each sex where a joint service would or might be less effective.

The provision of a service for one sex only where:

  • The service is also provided jointly for both sexes, and
  • If the service were provided only jointly it would or might be insufficiently effective
  • The provision of a service for one sex only where:
  • If the service was provided for both sexes jointly it would or might be less effective,
  • The extent to which the service is required by the other sex makes it not reasonably practicable to provide separate services for that sex

The provision of separate services for each sex in different ways or to different extents where:

  • If the services were provided for both sexes jointly it would or might be less effective
  • The extent to which the service is required by one sex makes it not reasonably practicable to provide the service for that sex in the same way or to the same extent as for the other sex.
  • Action taken for the purpose of assisting one sex to overcome:
  • A disadvantage (as compared to the other sex), or
  • The effects of discrimination

These exceptions apply only where section 21A of the SDA applies. Section 21A will apply only where an activity is not already unlawful under another provision of the SDA.

The Gender Equality Duty

The Gender Equality Duty came into force on 6 April 2007.  It requires public authorities, when carrying out their functions, to have due regard to the need to eliminate unlawful discrimination and harassment to promote equality of opportunity between men and women (section 76A).
 
This duty applies to all public authorities (with limited exceptions) in respect of all of their functions (that is, in service provision, policy making and in employment matters and in relation to the exercising of any statutory discretion and decision making).  It also applies to a public authority in relation to those of its services and functions which are contracted out to a private authority. The gender equality duty aims to make gender equality central to the way that public authorities work, in order to create:

  • better-informed decision-making and policy development
  • a clearer understanding of the needs of service users
  • better-quality services which meet varied needs
  • more effective targeting of policy and resources
  • better results and greater confidence in public services
  • a more effective use of talent in the workforce.

Human Rights Act 1998

The Human Rights Act 1998 (HRA)  came into force on 2 October 2000. the aim of the HRA is to ensure that a set of basic human rights, which are laid down in the European Convention on human rights, are fully respected and can be enforced in the UK. It means that individuals will be able to challenge in court an organisation that performs a public function if they believe that there has been a breach of their human rights.

European Union (EU) law

Some protection is afforded to individuals in national courts by EU law in relation to sex discrimination outside the employment fields in the provision of goods, facilities and services.

Directive 79/7/EEC (Social Security Directive)

Prohibits direct and indirect sex discrimination in relation to social security schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment.
 
The Directive does, however, allow different pensionable ages for men and women when  granting pensions and  in relation to other benefits where necessary. 

Gender Goods and Services Directive 2004/113/EC

Prohibits discrimination and harassment by both public and private bodies in the provision of goods and services. 

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