Sexual Orientation Discrimination in Goods, Facilities & Services

The right to not be discriminated against because of sexual orientation has been extended (since 2007) from an employment situation to the provision of goods, services and facilities. Because society today operates very much on a heterosexual basis, the clear beneficiaries of this legislation are mostly lesbian, gay and bisexual people. However, the right covers anyone of any sexual orientation and so would extend to a situation where a straight person was refused entry to a gay establishment, for example, even though this may occur less often. Discrimination on the basis of sexual orientation may be refusing to provide facilities, goods or services, or offering a lower standard than is offered to others of a different sexual orientation. Other than limited exceptions, this applies to all public and private sector providers, whether or not the goods, services and facilities are provided for money. The discrimination may be directly against an individual of a different sexual orientation, because of their association with someone of a different sexual orientation, or because of a perceived sexual orientation.

In 2010, the Equality Act (‘EA’) consolidated all previous legislation relating to sexual orientation discrimination and is the reference point for claims made after October of that year.

Examples under the EA include:

– a lesbian women being refused access to a gym.

– a gay man being refused life insurance (subject to some limited exceptions).

– a department store refusing to offer a gift list for a civil partnership.

– an advertisement for a gig that is open only to gay men (here, the Equality and Human Rights Commission can also challenge and penalise those responsible).

– refusing to let or hire premises on the basis of sexual orientation, for example for a civil partnership (subject to limited exceptions).

– a landlord refusing to rent a flat to a gay couple (subject to limited exceptions).

– a head teacher refusing to admit a child to a school either because the child is gay, or the parents are gay.

Specific legal protections

Direct discrimination

Directly discriminatory treatment in the provision of goods, services and facilities on the basis of sexual orientation will arise where a person has been treated less favourably because of their sexual orientation, and where this results in disadvantage or detriment to that person. For example where a gay man is offered a less attractive gym membership package than a straight man, or two gay men kissing in a bar are asked to leave when heterosexual couples doing the same thing are not.

A claim for direct discrimination requires a ‘comparator’ – a real or hypothetical person who is in a ‘not materially different’ situation to the person of a different sexual orientation, other than the sexual orientation.

Direct discrimination may against the individual complaining of the discrimination or because of an association with someone else (for example, a father’s sexual orientation), or where there is a perception of a certain sexual orientation, whether or not that is the case. Discriminatory treatment may be unconscious so there is no need to prove that it was done on purpose and that there was a motive. There may also be sexual orientation discrimination within a sexual orientation group – so a gay man can discriminate against another gay man.

Indirect discrimination

Indirect discrimination results from a ‘provision, criterion or practice’ that applies to the person complaining of discrimination, puts that person – and people of a sexual orientation group – at a particular disadvantage compared to those of a different sexual orientation and is not objectively justifiable (i.e. not a proportionate way of achieving a legitimate aim). The ‘provision, criterion or practice’ should apply to everyone equally which is why the discrimination is indirect. For example, allowing only married people to be members of a club.

Victimisation

A claim for victimisation will protect someone who is involved with an EA claim (or a claim under previous legislation, such as the Employment Equality (SexualOrientation) Regulations 2003). This may be someone who is bringing proceedings themselves, providing evidence or information relating to proceedings, making allegations of sexual orientation discrimination in the provision of goods, services or facilities, or doing anything by reference to the legislation to the person whose conduct is potentially discriminatory (or any other person). As long as they are done in good faith, these acts are all considered ‘protected acts’ and where someone receives unfavourable treatment as a result of doing one of these this will be victimisation. An example here may be where a complaint is made against a pub for sexual orientation discrimination and then the complainant receives unfavourable treatment at the pub as a result.

Under the EA, the facts of what happened (and from which discrimination could be inferred) must be proved by the person making the claim. After that, the party against which the claim is made must provide a reason for the conduct that is not based on sexual orientation discrimination.

Exemptions

There are exemptions for certain religious organisations whose main purpose is not commercial and who are focused on practicing, promoting or teaching a religion or belief. Here, access to membership, goods, facilities or services provided by the organisation, or joining in certain activities, can be restricted on the basis of sexual orientation to comply with organisational doctrines or avoid confrontation with members of the organisation that have ‘strongly held religious convictions.’

Bringing a claim

This type of claim is brought in a County Court and must be made within six months less one day of the discriminatory conduct, or the last day of the discriminatory conduct if it was ongoing. These time limits can be extended but this is not done in every case so it is wise not to rely on an extension being granted.

A questionnaire can be used by an individual who feels they have been subject to sexual orientation discrimination in the provision of goods, services or facilities, either to obtain information for the claim or to establish whether or not that person feels they need to make a claim. The questionnaire should be served on the correct form, by the recommended method within six months of the discriminatory treatment, before the start of the court proceedings. A lack of response to the questionnaire, or a poor response that deliberately avoids the questions in the questionnaire can result in an inference of discrimination being drawn by the courts.

In terms of the remedies for sexual orientation discrimination, these can be financial (such as monetary compensation) or non financial (such as an injunction to ‘right the wrong’).