It can sometimes be difficult to discern if a particular activity falls within s29 (goods, facilities or services) or s21A (public functions) and therefore it can be difficult to assess what exceptions apply. Very fine distinctions have been drawn in case law. Although the exceptions within s21A refer to 'services', the vast majority of a public authority’s services will fall within s29 (goods, facilities or services) or s22 (education), not s21A. Therefore, public authorities should note that the exemptions below for single-sex provision do not apply to services which fall within s22 or s29 SDA.
In order to determine whether a particular activity falls within s29, the crucial test is whether it can truly be said that the function in question constitutes a ‘service to the public’ (as opposed to, for example, discharging a statutory duty such as controlling immigration or collecting tax). The direct provision of services such as transport or recreational facilities clearly fall within s29.
Case law has indicated, however, that in certain circumstances a public authority may be performing a public function and providing a service at the same time. For example, it has been established that the Inland Revenue performs two separate activities – first a statutory duty of collecting tax and secondly a service of providing taxpayers with information regarding their entitlement to tax relief. Further, case law has found that the police are, in certain circumstances, providing a service (as opposed to discharging their statutory duty) when assisting or protecting victims of crime.
Public authorities may need to obtain legal advice if they are unclear whether a particular service falls within s29 or s21A SDA, and therefore which exceptions apply. Each case should be assessed on its own particular circumstances. This is important because a public authority must ensure that it is acting lawfully before providing a service on a single-sex basis.
Single-sex approaches to public functions
S21A(9) (8-13) SDA (margin note)
Discrimination in the exercise of public functions is lawful for:
the provision of a service for only one sex where only persons of that sex require the service
the provision of separate services for each sex where a joint service would or might be less effective
the provision of a service to one sex only where: it is also provided jointly, and if it were provided jointly only it would or might be insufficiently effective
the provision of a service for one sex only where: if the service were provided for both sexes jointly it would or might be less effective and the extent to which the service is required by the other sex makes it not reasonably practicable to provide separate services for that sex
the provision of separate services for each sex in different ways or to different extents where: if it were provided for both sexes jointly it would or might be less effective, and the extent to which the service is required by one sex makes it not reasonably practicable to provide the service for that sex in the same way or to the same extent as for the other sex