Email from IHREC in response to my question ' am I able to advertise therapy services only for people whose biological sex is female, regardless of what gender they identify as?'
I noted from your email you request information in relation to advertising a therapy service for female clients.
The response below is provided for information purposes only.
The Equal Status Acts 2000 to 2018 (“the ESA”), prohibit discrimination on ten specific grounds in the provision of goods and services, obtaining or disposing of accommodation and in relation to educational establishments. The ESA defines ‘service’ as “a service or facility of any nature which is available to the public generally or a section of the public.”
The ten grounds of discrimination covered by the ESA are gender, civil status, family status, sexual orientation, religion, age, race, membership of the Traveller community, disability and the housing assistance ground (in relation to the provision of accommodation services).
The gender ground entitles you to equal treatment whether you are a man, a woman or a transgender person. Further information on the ten grounds can be found in the Frequently Asked Questions on the Equal Status Acts section of our website (www.ihrec.ie).
Direct discrimination occurs where a person is treated less favourably than another person would be treated in a comparable situation on any of the above 10 grounds. Indirect discrimination occurs where an apparently neutral provision puts a person who is protected by any of the above grounds at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Exceptions
I refer to your query regarding exceptions to the ESA. In general, not all forms of less favourable treatment by service provider’s amounts to discrimination on the gender ground.
Section 5(2)(g) of the ESA provides that treatment of persons on the gender ground are permissible “where embarrassment or infringment of privacy can reasonable be expected to result from the presence of a person of another gender”.
The former equality tribunal (now the Workplace Relations Commission) has 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.
Section 5 (2)(c) of the ESA 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. 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.
Section 6(2)(e) provides that the discrimination prohibition does not apply in respect of ‘the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.
Making a complaint under the Equal Status Acts
In terms of bringing a successful complaint under the Acts, the complainant must first demonstrate that there has been less favourable treatment as between two persons, where the complainant falls under one of the above protected grounds, and the other (the comparator) doesn’t but is in a similar situation. In this regard, the law allows for either actual or, in certain situations, hypothetical comparators to be relied upon.
It is a matter for an individual to decide whether they wish to pursue this matter before the Workplace Relations Commission. At the end of this letter I have included a short Information Note on how to lodge a complaint with the Workplace Relations Commission. It is important that you read that information. If you wish to make a complaint of discrimination, you must notify the person against whom the complaint is being made, in writing, within two months of the date of the most recent occurrence of the discrimination. If there is no reply within one month or if the reply is unsatisfactory, your complaint should be lodged with the Workplace Relations Commission within six months of the discrimination. It is your responsibility to ensure that all legal deadlines are met.
The contents of this note are provided for information purposes only to assist you and do not constitute a legal analysis of your particular situation. While we seek to ensure that the information provided is accurate and up to date, it is not a legal interpretation of the law and should not be relied on as such. For any professional or legal advice you should consult a suitably qualified person.