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What doesn't count as direct discrimination in health and care services?

This advice applies to Scotland

Generally speaking, a healthcare or care provider isn’t allowed to directly discriminate against you. However, there are some exceptions.

Read this page to find out more about what doesn't count as direct discrimination when receiving health and care services.

Separate services for men and women

The Equality Act 2010 says it’s lawful to provide separate services to men and women if this is a better or more effective way of providing the service.

If the service provider can show they have a good enough reason for treating you differently because of your sex, it's not unlawful sex discrimination.

Example

A new fathers’ support group is provided by a mental health authority because very few men go to the parents’ support group. This is a good enough reason for treating people differently because of their sex. You couldn't complain about unlawful discrimination if you were unable to go to this group because you're a woman.

Single sex services

It’s also sometimes lawful to provide single sex services. This could be because only one sex needs the service or it might be a better or more effective way to provide the service. For example, some health screening services are offered to men only because of health conditions which only affect men. Another example are single sex wards in hospitals and care homes.

It might also be necessary because you would object to someone of the opposite sex being there - for example, separate changing rooms or services involving intimate personal health or hygiene.

In all cases, the service provider must be able to show they have a good enough reason for treating you differently because of your sex.

Exclusion of transsexual people from separate or single sex services

If you’re a transsexual person, you mustn’t be excluded from separate or single sex services provided to people of your chosen gender, unless there’s a good enough reason for excluding you.

Services should be provided to you according to the sex in which you present. In particular, if you have a gender recognition certificate you mustn’t be excluded from single sex services. A gender recognition certificate is a document which allows you to be legally recognized in your acquired gender.

  • More about gender recognition certificates

Different treatment because of age

There are times when it’s necessary to take your age into account - for example, when deciding which is the best treatment for you or what services you need. But if these decisions are based on your age without a proper assessment of your needs, it could be unlawful discrimination.

However, sometimes it’s not direct discrimination if a healthcare or care provider treats you differently because of your age. One of these exceptions is where there's a law which permits people of different ages to be treated differently.

There is also a general exception allowing healthcare and care providers to treat you differently because of your age, if there’s a good enough reason for doing this. This includes targeting some services at particular age groups if they have particular needs.

Example

In England and Wales, women aged 29-49 can have a cervical screening test every three years whereas women in the 50-64 age group are only invited every five years. The Equality Act allows this type of different treatment, as there’s clinical evidence to show that younger women are more at risk of developing cervical cancer. This is a good enough reason for treating you differently because of age.

When is something a good enough reason?

The Equality Act says something can be a good enough reason only if it’s a genuine and necessary reason. The healthcare or care services provider would need to be able to prove this in court, if necessary. This is known in legal terms as objective justification.

Blood donations

It’s not unlawful for a blood service to refuse your blood donation if there are real reasons to think there may be a health risk to you or other people if you donate your blood. For example, if you’re pregnant or recently given birth and giving blood could put your health at risk.

Services provided to some groups only

If an organisation providing healthcare or care services normally only provides services to people with a particular protected characteristic, the Equality Act says they can continue to do so. They can also refuse to provide you with a service if you don’t have that characteristic, but only if it’s not practicable for them to provide you with the service.

Next steps

Other useful information

  • For more information on gender recognition certificates from GOV.UK go to www.gov.uk

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

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