Use of gender factor in justifying differences in treatment in access to goods and services Dr.iur.Kristīne Dupate University of Latvia

(1) Gender factor in justifying differences in treatment (2) Gender factor in insurance (3) Treatment with regard to pregnancy and maternity

(1) Gender factor in justifying differences in treatment Article 4(5) This Directive shall not preclude differences in treatment, if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. What does it mean?

(1) Gender factor in justifying differences in treatment Example (the Directive Point 12 of the Preamble) - ‘differences between men and women in the provision of healthcare services, which result from the physical differences between men and women, do not relate to comparable situations and therefore, do not constitute discrimination’

(1) Gender factor in justifying differences in treatment Justifications: –Biological or social differences acceptable? Intention of the legislator National practices

(1) Gender factor in justifying differences in treatment Examples, (the Directive, Point 16 of the Preamble) –protection of victims of sex-related violence (in cases such as the establishment of single-sex shelters); –reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person's home) –the promotion of gender equality or of the interests of men or women (for example single-sex voluntary bodies); –the freedom of association (in cases of membership of single-sex private clubs) [...] () More social than biological differences

(1) Gender factor in justifying differences in treatment National practices: –Sex segregated services: segregated facilities/‘women’ or ‘man’ days in swimming pools, saunas, spas women taxi services women only cafeterias male only clubs/associations (with public facilities) More social than biological differences

(1) Gender factor in justifying differences in treatment National practices: –Segregation based on: Aim - decency, privacy, cultural and religious traditions, security, avoidance of embarrassment, sexual harassment –Result: wider participation in public sphere, however subject to the proportionality test Aim - social context, society of the same gender –Result: reinforcement of gender stereotypes, social roles. Legitimate aim?!

(2) Gender factor in insurance Actuarial factors – statistical data indicating the risks for persons in various categories (such as age, gender, family history, socio-economic and marital status, region of residence) Application of actuarial factors (including gender) leads to different treatment with regard to premiums and benefits between men and women Risks attributed to a gender: –difference in life expectancy between men and women; –different social behaviour/habits (different risks) What is the reason: biological or social?

(2) Gender factor in insurance The Directive – precludes application of gender as a factor in insurance or requires application of the unisex risk factors

(2) Gender factor in insurance Exception: Article 5(2) ‘[...] Member States may decide [...] permit proportionate differences in individuals' premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data’ What statistical data testify on gender as determining factor? What are proportionate differences?

(3)Treatment with regard to pregnancy and maternity Article 4(1)(a) There shall be no direct discrimination based on sex, including less favourable treatment of women for reasons of pregnancy and maternity Article 4(2) This Directive shall be without prejudice to more favourable provisions concerning the protection of women as regards pregnancy and maternity. Obligation to accommodate special needs in order ensure equal treatment or obligation to provide the same treatment with the others? The case-law of the CJ in the field of employment: obligation to accommodate special needs in order ensure equal treatment (Brown C- 394/96, Tele Danmark C-109/00, Mahlburg C-207/98)

(3)Treatment with regard to pregnancy and maternity Article 5(3) In any event, costs related to pregnancy and maternity shall not result in individuals’ premiums and benefits. Preamble (20) Less favourable treatment of women for reasons of pregnancy and maternity should be considered a form of direct discrimination based on sex and therefore prohibited in insurance and related financial services. Costs related to risks of pregnancy and maternity should therefore not be attributed to the members of one sex only. Obligation to cover pregnancy and maternity risks and provide insurance for the same price? or Obligation to provide insurance not covering risks of pregnancy and maternity on the same conditions with others?

Sources: A.McColgan ‘The Goods and Services Directive: a curate’s egg or an imperfect blessing?’, European Gender Equality Law Review, 1/2009 E.Caracciolo di Torella ; The Goods and Services Directive: Limitations and Opportunities’, Feminist Legal Studies, 2005 E.Caracciolo di Torella, presentation ‘The Goods and Services Directive, Gender Equality and Insurance’, Discussion Paper ‘Discrimination in Access to Goods and Services’