Beauty care services offered solely to women (TAS 37/2020, issued on 27/11/2020)
The Ombudsman for Equality was notified that an offer on intense pulsed light therapy by Beauty Salon A was only intended for women.
The Ombudsman for Equality requested a report on the matter. The private entrepreneur who owns Beauty Salon A replied that she only provides beauty care services to women. She justified this by stating that she is a Muslim and cannot touch men who are not a part of her family for reasons of decency. According to the religious interpretation of some Muslims, it is not appropriate to touch people of the opposite gender if they are not a part of your family or close relatives.
The Ombudsman for Equality found that the issue was not that services were offered to men with disadvantageous terms compared to women. Instead, the case concerned providing services solely to women. Therefore, the situation was assessed on the basis of section 8e(2) of the Equality Act.
The section states that provision of goods and services exclusively or mainly to representatives of one gender is allowed if it is justified in order to achieve a legitimate objective and this objective is sought to be achieved by appropriate and necessary means.
Section 8e of the Equality Act and the Government Proposal for the Act are based on the Council Directive on implementing the principle of equal treatment between men and women in the access to and supply of goods and services (2004/113/EC).
Council Directive 2004/113/EC and the Government Proposal for section 8e of the Equality Act list examples of legitimate objectives that are acceptable reasons for diverging from the principle of equal treatment. Even though the list cannot be considered to be comprehensive, any exceptions not mentioned in the Directive or the Government Proposal for the Equality Act must be similarly justifiable based on the purpose of the Directive. The purpose of the Directive is to combat discrimination based on gender in access to and supply of goods and services.
When assessing the acceptability of the conduct of the self-employed person, factors related to her basic rights, such as freedom to conduct business and religious freedom, must also be taken into consideration. If the self-employed person would be required to provide beauty care services to men, she would have to end her business or abandon a principle that is part of her religion.
However, reasons related to religion, conviction or culture do not automatically and necessarily constitute an acceptable reason for diverging from the principle of equal treatment between genders. The same applies to the freedom to conduct business and the principle of equality. The assessment involves considering what is the significance of equality between genders compared to other basic rights in the individual case if the rights are in contradiction. The Ombudsman for Equality is not aware of any established legal practice related to section 8e of the Equality Act or any interpretation of the Directive 2004/113/EC that have addressed this issue.
The Government Proposal for section 8e of the Equality Act and Directive 2004/113/EC both state that in access to and supply of goods and services reasons of decency may constitute a legitimate reason for differences in treatment.
Touching a person of the opposite gender is a key aspect of the concept of decency. People have varying views on where to draw the line of decency when it comes to touching a person of another gender. In the assessment of the current case, it was not decisive whether the views are based on religious beliefs or other reasons. The principle of decency, that it is not acceptable to touch a member of the opposite gender, can be taken into consideration as justifying grounds for the provision of beauty care services solely to one gender by a self-employed person. This interpretation does not jeopardize the objectives of Directive 2004/113/EC. The case does not concern public healthcare services, for example, where the interpretation of acceptable reasons of decency is stricter.
The Ombudsman for Equality found that the reasons of decency presented by the self-employed person in the case are considered to be a legitimate objective, pursuant to section 8e(2) of the Equality Act, for offering beauty care services solely to women. Offering beauty care services solely to women has been an appropriate and necessary means for achieving this objective. Therefore, the case does not involve discrimination in violation of section 8e of the Equality Act.