Services & Gender Discrimination
Discrimination on the ‘gender ground’ happens where there is less favourable treatment of one person compared to another, because one is a woman and the other is a man.
Under EU law, a transgender person who experiences discrimination arising from their gender reassignment, or transition, is also protected under the gender ground
People cannot discriminate on the grounds of gender:
- when they are providing goods and services to the public generally or, a section of the public;
- whether these are free or where the goods and services are sold, hired or rented or exchanged; or
- when providing access to and the use of any place or or facility.
What is meant by services and goods?
The Equal Status Acts aim to make sure that people are treated equally when they access goods and services.
You are using a service when a person or organisation does something for you, or supplies you with something.
Goods are any moveable property. For example, goods are items that can be bought or sold.
You are protected if you are using a facility or, service of any nature, including facilities for:
- banking, insurance, grants, loans, credit or financing;
- entertainment, recreation or refreshment;
- cultural activities;
- transport or travel;
- a service or facility provided by a club (which is available to the public or a section of the public);
- a professional trade or service, such as plumbers or financial advisors; and
- educational services; and
- public services provided by the State (for example HSE, local authorities).
This list is not a full list. The Equal Status Acts take a broad view of what a service is.
What is discrimination in public services?
Public services provided by the State, such as government departments and agencies, the health service, social welfare or local authorities are all covered by equality law. This includes things like tax, grant and pension assessments.
While there may be exemptions linked to certain protected grounds, you are entitled to be treated equally in seeking to avail of a range of public services and benefits.
What about financial services?
Financial services such banks and insurers are covered by equality law on services and goods.
Example An insurer gives a man a higher premium than a woman.
Risk exemption for financial services - except for gender
Not all differences in treatment by financial services are unlawful.
Specifically, section 5(2)(d) of the Equal Status Acts allows for difference in the treatment of persons, in relation to annuities, pensions, insurance policies or any other matters relating to the assessment of risk, where the treatment is effected by reference to:
- actuarial and statistical data obtained from a source on which it is reasonable to reply, or other relevant underwriting or commercial factors, and;
- is reasonable having regard to the data or other relevant factors.
Any decision to treat a person applying for an insurance policy less favourably under any of the nine protected grounds, or not to provide a service at all, must be based on reasonable evidence, and relevant underwriting or commercial factors .
If you are refused insurance or quoted a higher premium, you are entitled to the reason(s) for this.
It is also important to note that this exemption does not apply to the gender ground, meaning no difference in treatment by a financial service can be justified on the basis of gender.
Also, although this has not been determined by the Courts, it is worth noting that difference in treatment on the basis of race may also be unlawful.
Refused insurance complaints
If you have been refused insurance cover, you are entitled to go to the Declined Cases Committee of Insurance Ireland, who will obtain an insurance quotation on your behalf.
In order for the Committee to consider your case, you must first have sought and been refused quotations, in writing, from at least three insurers.
Can service providers treat genders differently?
In general, not all forms of less favourable treatment by service providers amounts to discrimination on the gender ground.
Section 5.2 of the Equal Status Equal Status Acts provides an exemption in respect of "differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient".
In Carroll v Gruaig Barber it was found that, this exemption applied in the context of a barbershop where the comparison is as between a man and a woman.
Recent case law has clarified that this is not case where refusal is on the transgender ground.
In the case of Lee Mcloughlin V Paula Smith Charlies Barbers the complainant, who was a transgender male, was refused a haircut in a barbershop.
The barbers refused by stating that they don’t cut ladies hair. On the facts of this case, it was found that the complaint suffered discrimination on the grounds of gender and the claimant was awarded €5,000.
What protections do transgender people have?
Under EU law, a transgender person who experiences discrimination arising from their gender reassignment, or transition is protected under the gender ground, and this was affirmed by the Equality Tribunal in Hannon v. First Direct Logistics Limited (DEC-E2011-066).
In this decision, the Tribunal also found that what it referred to as “Gender Identity Disorder” was a recognised medical condition and that the complainant had a disability within the meaning of the Equality Acts. Under the disability ground, discrimination can occur if there is a failure or refusal by an employer or service provider to provide reasonable accommodation to enable equal participation in employment or equal access to services.
In Hannon v. First Direct Logistics Limited, while the employer had been initially supportive during the employee’s period of transition from male to female, the Tribunal concluded that its conduct – including its failure to discuss the complainant’s needs adequately with her and its request for the complainant to work from home and to continue to use her male identity in work – constituted discrimination on the grounds of gender and disability and that, in the circumstances, the complainant had been discriminatorily dismissed.
What's covered?
The Equal Status Acts 2000–2018:
- promote equality;
- prohibit certain kinds of discrimination (with some exemptions) across a number of specified grounds (Age, Civil Status, Disability, Family Status, Gender, Membership of the Traveller Community, Race, Religion, Sexual Orientation);
- prohibit sexual harassment and harassment across a number of specified grounds;
- prohibit victimisation;
- require reasonable accommodation of people with disabilities;
- allow a broad range of positive action measures.
The Equal Status Acts also implement the following two EU Directives – the Race Directive and the Gender Goods and Services Directive.
How do I know if I’m being unfavourably treated?
Different types of discrimination are prohibited under the Equal Status Acts, these include:
Direct discrimination
This is defined as the treatment of a person in a less favourable way than another person who is in a comparable situation, because they differ on any of the nine grounds described above. This is a difference which:
- exists;
- existed but no longer exists;
- may exist in the future; or
- is imputed to the person concerned (this occurs where a person is labelled as differing under the specified grounds even though this is not the case).
Discrimination by association
This occurs when a person who associates with another person is treated less favourably because that other person differs under any of the specified grounds.
Indirect discrimination
This happens where an apparently neutral provision, criterion or practice which appears unproblematic at first sight, puts a person who differs under any of the specified grounds at a particular disadvantage, compared with another person. This provision, criterion or practice will not amount to discrimination where it is demonstrated that:
- the provision, criterion or practice is objectively justified by a legitimate aim; and
- the means of achieving that aim are appropriate; and
- the means of achieving that aim are necessary.
Procuring discrimination
It is an offence under the Equal Status Acts to procure or attempt to procure another person to engage in discrimination, harassment or sexual harassment.
What responsibilities do service providers have?
Positive action
The Equal Status Acts allow for taking of positive measures (or preferential treatment) which are legitimately intended to:
- promote equality of opportunity for disadvantaged persons;
- cater for the special needs of persons, or a category of persons who because of their circumstances, may require facilities, arrangements, services or assistance.
In addition, the Equal Status Acts allow for the imposition of a reasonable preferential fee, charge or rate in respect of anything offered or provided in respect of families, married couples, older or younger persons, or persons with a disability.
Vicarious liability
Employers are liable for discriminatory acts of an employee in the course of his or her employment.
It is not a defence if the act was done without the employer’s knowledge or approval unless they can prove that they took reasonably practicable steps to prevent the conduct.
It is a defence if an employer can show that reasonable practicable steps were taken to prevent the employee from doing the act, or acts of that description.
Anything done by a person as agent for another person, with the authority (whether express or implied) of that other person shall be treated as if it was done by that other person.
What can I do if I’m being harassed or sexually harassed?
Harassment and sexual harassment
Sexual harassment and harassment in the provision of goods and services is prohibited. A person (‘the harasser’) shall not harass or sexually harass another person (‘the victim’) who seeks to use goods or services provided by the harasser.
What is harassment and sexual harassment?
Harassment is any form of unwanted conduct related to any of the specified grounds. Sexual harassment is any form of unwanted verbal, nonverbal or physical conduct of a sexual nature.
In both cases, it is conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
In both cases, the unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, emails and social media, text messages, pictures, or other material.
A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.
Who is a responsible person?
A person who is responsible for the operation of any place where goods, facilities or services are offered to the public is defined as a ‘responsible person’.
The ‘responsible person’ must ensure that any person who has a right to be there, is not sexually harassed or harassed. It shall be a defence for the responsible person to prove that he or she took steps as are ‘reasonably practicable’ to prevent the sexual harassment or harassment for occurring.
What if I am retaliated against for making a complaint?
Victimisation
It is victimisation if a person is threatened or treated badly because they make a complaint about discrimination in relation to the provision of goods and services. Victimisation is against the law.
For example, it is victimisation if you are threatened or treated badly because:
- you make a complaint of discrimination against a service provider;
- you have been involved in a discrimination case at the Workplace Relations Commission;
- you helped someone else to make a claim;
- you were involved as a witness in a discrimination case at the Workplace Relations Commission;
- you have taken a discrimination claim to court;
- you have told a service provider that you intend to do any of the things mentioned in this list.
What's not covered?
There are several significant exemptions in the Equal Status Acts that apply to the provision of goods and services. The Acts allow for people to be treated differently in certain circumstances.
These exemptions should be read restrictively and should not be allowed to restrict unduly the general prohibition on discrimination.
Exemptions on gender ground
Aesthetic/cosmetic type services
It is not discrimination under the Equal Status Acts to treat a person differently on the gender ground when providing aesthetic, cosmetic or, similar services which require physical contact between provider and recipient.
In Carroll v Gruaig Barber it was found that, this exemption applied in the context of a barbershop where the comparison is as between a man and a woman.
Case law has clarified that this is not case where refusal is on the transgender ground. In the case of Lee Mcloughlin V Paula Smith Charlies Barbers the complainant, who was a transgender male, was refused a haircut in a barbershop.
The barbers refused by stating that they don’t cut ladies hair. It was found that the respondent cannot rely on the Carroll v Gruaig Barber case, given that the complainant in this case under consideration is a transgender man (and not a woman).
On the facts of this case, it was found that the claimant suffered discrimination on the grounds of gender and the claimant was awarded €5,000.
Embarrassment or privacy
It is not discrimination under the Equal Status Acts where a person is treated differently to another person on the gender ground where embarrassment or, breach of privacy could reasonably be expected to happen on account of the presence of a person of another gender.
The former equality tribunal (now the Workplace Relations Commission) considered this exception in relation to difference of treatment as between a man and a women.
In McMahon v Bridal Heaven, a shop specialising in bridal wear sought to avail of the exemption. In this case, the equality officer did not accept that a blanket ‘no men’ policy was permissible given that the privacy of female customers could be secured by availing of dressing rooms and by the option of making a private appointment.
In Blaney v The Bridal Studio, this excemption was successfully relied upon when a man was asked to leave a bridal shop. In the case, the respondents argued that the layout of the premises required that customers would be fitted for dresses while on the shop floor area.
The respondent did not operate a general gender exclusion policy and could legitimatly avail of the section 5(2)(g) exemption on the facts of this case.
Sporting events
Difference in treatment on based on gender in relation to providing or organising sporting facilities or events is permitted if:
- the differences are reasonably necessary having regard to the nature of the facility or event; and
- are relevant to the purpose of the facility or, event.
Drama and entertainment
Difference in treatment on the gender ground in connection with a dramatic performance or, other entertainment is permitted if the difference is reasonably required for reasons of authenticity, aesthetics, tradition or, custom.
Exemptions on all grounds
Wills/gifts
The Equal Status Acts do not apply to the disposal of goods by will or by gift.
Specialised need
The Equal Status Acts permit difference in treatment where the goods or service could reasonably be regarded as being suitable only to the needs of certain persons.
General exemptions
Action required by or under law
A general exemption provides that nothing in the Equal Status Acts shall prohibit the taking of any action that is required under:
- statutory provision or court order;
- any act done or measure adopted by the EU; or
- any international treaty which imposes an obligation on the State.
Only actions that are mandatory are covered. Where the measure leaves some discretion the anti-discrimination provisions do apply.
Certain nationals of other countries
Public authorities can treat certain nationals of other countries differently, on the basis of their nationality, who are outside the State or unlawfully present in it (for the purposes of the Immigration Act 2004) or in accordance with any provision or condition made by or under any enactment, and arising from his or her entry to or residence in the State.
Risk of criminal or disorderly conduct
A provider of goods or services, or a person providing accommodation or related services, can refuse a service or accommodation to a person if a reasonable individual, having the knowledge and experience of the provider, would form the belief that the provision of service or accommodation to
the customer would produce a substantial risk of criminal or disorderly conduct or behaviour, or damage to property in or around the area where the service or accommodation is provided.
Clinical judgment
Treating a person differently does not constitute discrimination where a person is treated differently solely in the exercise of a clinical judgement in connection with a diagnosis of illness or her/his medical treatment.
Capacity to enter into a contract
Treating a person differently does not constitute discrimination if a person is incapable of entering into an enforceable contract or, is incapable of giving informed consent and for that reason the treatment is reasonable.
Case Studies
Seating on an airplane and gender discrimination
| Case | A Service User v. An Airline |
|---|---|
| Topic | The Commission provided legal representation to a service user (‘the Complainant’) who claimed that she had been harassed and discriminated against within the meaning of the Equal Status Acts 2000-2015 (‘the ESA’) on the ground of gender in accessing the services provided by an airline at Dublin Airport. |
| Outcome | The Complainant, who had booked a flight with the airline, claimed that prior to boarding the flight she was requested by the airline’s staff to move from her allocated seat in order to accommodate the religious beliefs of two men who had been allocated the seats beside her and who did not wish to sit beside a woman. The Complainant lodged a complaint with the Workplace Relations Commission. The matter was resolved to the satisfaction of all parties following a mediation process facilitated by the Workplace Relations Commission. |
| Law | ESA |
| Year | 2017 |
Gender discrimination and club membership
| Case | A member of a Club v Chairman of Board of Management, General Manager, & Board of Management of a Club |
|---|---|
| Topic | The Commission granted legal assistance to a member of a private club who claimed that she had been discriminated against within the meaning of the Equal Status Acts 2000-2015 on the ground of gender in relation to certain membership rules and practices that applied to female members of the Respondent club only. She also claimed to have been harassed and victimised because of raising complaints of gender discrimination. The Respondent club was a registered (i.e. licensed) club under the Registration of Clubs Acts, 1904 to 1999. The Complainant lodged complaints with the former Equality Tribunal, now the WRC. This matter raised issues relating to the |
| Outcome | The complaint was listed for hearing before the WRC on 7 April 2016; however, the matter was settled to the satisfaction of all parties on this date. The settlement provided for a change to certain existing practices at the club to ensure equality of treatment for female members of the Respondent club. |
| Law | ESA |
| Year | 2016 |
Search database for more case studies
What's next?
Make a complaint to the Workplace Relations Commission
The Workplace Relations Commission (WRC) is the body that hears discrimination complaints under Ireland’s equality laws. The WRC deals with both employment and service/goods related claims. There is no fee to bring a case to the WRC and complaints can be made online.
Gender discrimination claims have the option of going to the Circuit Court.
Learn more about the WRC process
Contact us
We, the Irish Human Rights and Equality Commission, have a statutory role to fight discrimination and provide information on equality and human rights in Ireland. Please note however that we are not a court and we do not decide on discrimination claims.
Learn more about how to contact us
Contact another organisation
You may find that another organisation could better help you with your issue.
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Employment rights / Equal treatment in services
Workplace Relations Commission
Information and Customer Services (ICS), formerly known as Workplace Relations Customer Services, is responsible for the provision of information relating to employment rights, equality and industrial relations matters by means of a telephone call-in service manned by experienced Information OfficersInformation and Customer Services
Workplace Relations Commission
O’Brien Road
Carlow
R93 E920
Phone: 059 9178990 | Lo-call: 1890 80 80 90 * (09.30 - 17.00, Monday to Friday)
Web: https://www.workplacerelations.ie/en/contact_us/contact-details/
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Social welfare information
Department of Employment Affairs and Social Protection
The Department of Employment Affairs and Social Protection's role is to promote a caring society through ensuring access to income support and other services, enabling active participation, promoting social inclusion and supporting families. Please find below a list of contact numbers for services: - DSP Income Support Helpline for people impacted by COVID-19. Tel: 1890 800 024 – Information Services – Tel: 1890 66 22 44 – Free Travel, Household Benefits, State Pension, Domiciliary Care, Widow(er)s Pension, Widowed Parent Grant, Blind Persons Pension - Tel: 1890 500 000 – Carer's Allowance, Carer's Benefit, Disability Allowance, Disablement Benefit, Invalidity Pension, Bereavement Grant - Tel: 1890 927 770 – Supplementary Welfare Allowance - Tel: 071 9157100 – Homemakers - Tel: 1890 690 690 – Respite Care Grant – Tel: 01 6732222 – Illness Benefit, Injury Benefit, Medical Care – Tel: 1890 928 400Áras Mhic Dhiarmada,
Store Street,
Dublin 1
Information Services
College Road,
Sligo
LoCall: 1890 66 22 44
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Social welfare appeals
Social Welfare Appeals Office
The Social Welfare Appeals Office operates independently of the Department of Social Protection. It aims to provide an independent, accessible and fair appeals service with regard to entitlement to social welfare payments and to deliver that service in a prompt and courteous manner. The main role of the Social Welfare Appeals Office is to provide a fair and independent appeals procedure where a person is dissatisfied with a decision given under the Social Welfare Acts by a Deciding Officer or a Designated Person about their entitlement to social welfare payments or the insurability of their employment.Social Welfare Appeals Office D'Olier House,
D'Olier Street,
Dublin 2
D02 XY31 -
Unfair treatment by a public body
Office of the Ombudsman
The Office of the Ombudsman examines complaints about the administrative actions of Government Departments; the Health Service Executive; local authorities and various other State agencies. Complaints can be made in relation to a wide range of issues, such as entitlement to public services, taxation, housing, education and social welfare.Office of the Ombudsman
18 Lower Leeson Street
Dublin 2
D02 HE97 -
Women's rights and equality
National Women’s Council Ireland
National Women’s Council Ireland mandate is to take action to ensure that the voices of women in all their diversity are heard. National Women’s Council Ireland vision is of an Ireland and of a world where women. Can achieve their full potential in a just and equal society.National Women's Council of Ireland,
100 North King Street
Smithfield, Dublin 7
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Rights and welfare of children
Ombudsman for Children’s Office
The Ombudsman for Children may investigate a complaint made by a child, a family member, or a professional, who has dealings with the child. The bodies that may be investigated by the Ombudsman for Children include Government Departments, the HSE, schools, and public hospitals.Ombudsman for Children’s Office
Millennium House
52-56 Great Strand Street
Dublin 1 -
Child protection
Tusla Child and Family Agency
The Child and Family Agency is the dedicated State agency responsible for improving wellbeing and outcomes for children. The Agency operates under the Child and Family Agency Act 2013, a progressive piece of legislation with children at its heart and families viewed as the foundation of a strong healthy community where children can flourish. Partnership and co-operation in the delivery of seamless services to children and families are also central to the Act.Tusla Child and Family Agency,
The Brunel Building,
Heuston South Quarter,
Saint John's Road West,
Dublin 8.
D08 X01F -
LGBTI+ support services
BeLonG To Youth Services
BeLonG To Youth Services is the national organisation supporting lesbian, gay, bisexual, transgender, and intersex (LGBTI+) young people in Ireland.Parliament House,
13 Parliament St,
Temple Bar,
Dublin 2, D02 P658 -
Transgender persons
Teni Transgender Equality Network Ireland
TENI seeks to improve the situation and advance the rights and equality of Trans people and their families. Its vision is an Ireland where Tran’s people are understood, accepted and respected, and can participate fully in all aspects of Irish society. TENI is dedicated to ending transphobia, including stigma, discrimination and inequality and continues in the struggle for social, political and legal recognition of Trans people in Ireland.Transgender Equality Network Ireland TENI
10 Ellis Quay
Arran Quay
Dublin
Ireland -
LGBTI+ support services
LBGT Ireland
LGBT Ireland is a national organisation underpinned by localised knowledge and responses. For support or information please contact the National LGBT Helpline on 1890 929 539. Available: Monday – Thursday (6.30pm – 10pm), Friday (4pm-10pm), Saturday and Sunday (4pm-6pm).LGBT Ireland
7 Red Cow Lane
Smithfield
Dublin 7
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LGBTI+ support services
NXF
Established In 1979, The NXF Is The Oldest Lesbian, Gay, Bisexual And Transgender (LGBT) NGO In Ireland. The NXF Publishes Gay Community News (GCN) And Campaigns For The Equal Rights Of, And To Combat Discrimination Against, LGBT People In Ireland & Internationally.Phone: +353 1 675 5025
Web: https://www.nxf.ie/
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Standards in health and social care services
The Health Information and Quality Authority (HIQA)
The Health Information and Quality Authority is an independent authority established to drive high-quality and safe care for people using our health and social care services in Ireland. HIQA’s mandate to date extends across a specified range of public, private and voluntary sector services. Reporting to the Minister for Health and the Minister for Children and Youth Affairs, HIQA’s role is to develop standards, inspect and review health and social care services and support informed decisions on how services are delivered.Head office
Unit 1301,
City Gate,
Mahon,
Cork,
T12 Y2XT
Phone: (021) 240 9300
Regional office
George's Court,
George's Lane
Dublin 7,
D07 E98Y
Phone: (01) 814 7400Email: info@hiqa.ie
Web: https://www.hiqa.ie/
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Consumer and competition rights
Competition and Consumer Protection Commission
The Competition and Consumer Protection Commission is the statutory body responsible for enforcing consumer protection and competition law in Ireland.Competition and Consumer Protection Commission
Bloom House
Railway Street
Dublin 1
D01 C576Phone: 1890 432 432
Web: https://www.ccpc.ie
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Declined insurance
Declined Insurance Cases of Insurance Ireland
By way of information, even if a person has been refused cover, they are entitled to go to the Declined Cases Committee of Insurance Ireland who will obtain an insurance quotation for them. In order for the Committee to consider a person’s case, they must first have sought and been refused quotations in writing from at least three insurers.Declined Insurance Cases of Insurance Ireland
Insurance Centre
5 Harbourmaster Place
IFSC
Dublin 1
DO1 E7E8
IrelandEmail: declined@insuranceireland.eu
Phone: (01) 676 1820
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Practices by a GP
Medical Council
The Medical Council regulates medical doctors in the Republic of Ireland. The Council's purpose is to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among doctors. The Medical Council handles complaints relating to a doctor's fitness to practice medicine.Medical Council
Kingram House
Kingram Place
Dublin 2
D02 XY88Phone: +353 1 4983100
Web: https://www.medicalcouncil.ie/Public-Information/Making-a-Complaint-/Making-a-Complaint.html
Fax: +353 1 4983102
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Legal aid
The Legal Aid Board
The Legal Aid Board is the statutory, independent body responsible for the provision of civil legal aid and advice to persons of modest means. Legal advice is any oral or written advice given by a solicitor or barrister, including writing letters and negotiations. Legal aid is representation by a solicitor or barrister in court proceedings. The Legal Aid Board has a number of centers across the country, and the best way to find the one most convenient to you is to contact the Legal Aid Board directly. -
Legal advice
Free Legal Advice Centres
The Free Legal Advice Centre (FLAC) provide confidential, basic legal advice for free and in person across all areas of law. FLAC offers a network of advice clinics around Ireland and you may be able to identify the most suitable one at the following link: Legal Advice Clinic.Free Legal Advice Centres,
13 Lower Dorset Street,
Dublin 1,
Ireland
Phone: Lo-Call: 1890 350 250
Web: https://www.flac.ie/
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Citizen's Information Centres
Citizen's Information
Citizens Information Centres (CICs) provide free, impartial information, advice and advocacy from more than 215 locations around the country.Find a Citizens Information Centre
https://centres.citizensinformation.ie/Phone: 0761 07 4000
Browse the database of organisations working on human rights and equality issues in Ireland.