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Bob is a male prostitute who only services female clients. Charles is a homosexual male who would like to solicit his services, but Bob being straight and so finding this proposition unenticing, refuses. Has Bob unlawfully discriminated against Charles?

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    This is an interesting take on the "bona fide occupational qualification" exception. But that exception is related to hiring personnel, not to selecting customers.
    – vsz
    Jan 15 at 10:00
  • The advertised service centers around a customer's vagina, much like a hair cutter's service centers around a customer's hair. Each one constitutes a material condition for having that respective service rendered. That is different from discriminating against traits unrelated to the actual service (like refusing to bake a cake for a homosexual etc.). Jan 15 at 19:08
  • @Peter-ReinstateMonica That "refusing to bake a cake" story got a really disingenuous spin how it entered popular consciousness. It was not like "ah, so you're a homosexual, no cake for you" how your comment might make it look like. It was about specifically ordering a cake with an inscription promoting something the baker disagrees with. The baker offered them to take any of the readily-made cakes, but they refused and insisted on the baker adding that message. Imagine if someone went to a Jewish baker and demanded him to write "death to all Jews" on it. Or a Muslim baker to mock Muhammad.
    – vsz
    Jan 16 at 9:18
  • @vsz Re baker: I did not refer to a specific case, did I? In that specific case though, I assume the inscription was not "death to all cis males" or such. Jan 16 at 10:47
  • @Peter-ReinstateMonica : No, it was not. But it was still not the case of those poor homosexuals staying hungry because the baker refused to serve them. It was them demanding the baker to write an ideological message on the cake the baker disagreed with, while the baker still offered them to choose any of the existing designs. That's completely different from how a large part of the sensationalist media presented the case.
    – vsz
    Jan 16 at 11:12

3 Answers 3

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We will not address the legality of sex services but the core of the question, refusal to provide service because of a protected characteristic.

Under the equality law, generally, service must be provided regardless of the protected characteristic. Service providers are encouraged to accommodate and adapt their service, such as giving a free admission ticket to disabled clients so their caregiver can assist them. The only instances where this is not the case is when it falls under one of the statutory exceptions.

The Human Rights Commission says:

There are some exceptions to the general rules of equality law, when people’s protected characteristics may be relevant to the goods, facilities or services you provide. For businesses, these are:

[...]

  • separate services for men and women or single-sex services

[...]

You are allowed to provide single-sex services (services just for men or just for women) where this is objectively justified and:

the services may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex

[...]

  • Separate services for men and women could be provided by a beauty therapist where intimate personal health or hygiene is involved

For example, a female masseuse is allowed to only service female clients because of the close contact she has with the clients.

A beauty therapist who operates on her own and provides massages in clients’ own homes only provides this service to women. She believes the restriction is objectively justified and it also involves physical contact between the client and herself, which is something she has a reasonable objection to. It is likely that the provision of the service in this way will come within the exception

Conclusion

Given that sex services go above and beyond the physical contact of a massage, Bob has most certainly not committed any transgression against Charles' rights.

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  • I ran a tiny edit to make the point stand out a little more.
    – Trish
    Jan 15 at 15:21
  • @Trish you are most welcome to even add your own content. This knowledge base is a collaborative one. Jan 15 at 18:23
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It has not been adjudicated whether it is prohibited discrimination for a sex worker to not provide their services to all people, apparently discriminating on the grounds of gender or sex.

However, a somewhat analogous issue has arisen in the context of genital waxing. The BC Human Rights Tribunal found that a service that does not provide scrotum waxing is not discriminating against a transgender woman who "was seeking to have hair removed from a scrotum." See Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222:

Section 8 of the Code only applies to services which a person customarily provides to the public. ... "A grocer is not required to service a bicycle." ... In the case of genital waxing, I find that the differences in procedures, as well as its intimate nature, are important to defining the service. ... Second, I accept that this is an intimate service that a person must actively and specifically consent to provide. It requires the service provider to handle a stranger's genitals for a prolonged period of time, in a private setting. ... Ms. Yaniv attempted to draw parallels with other circumstances where LGBTQ+ persons have been denied services — for example, in connection with gay weddings. I do not find the circumstances analogous. There is no material difference in a cake which is baked for a straight wedding, and one that is baked for a gay wedding. Nor does baking a cake for a gay wedding require you to have intimate contact with the client. Taking another example, there is no material difference in renting a room to a gay couple or to a straight couple, and renting out rooms does not require intimate contact with the client. ... in the case of genital waxing, I have found there is a material difference in waxing different types of genitals and that, because of its intimate nature, service providers must consent to provide service on a particular type of genitals. What the law requires is that, having chosen to provide a particular service, they must provide that service without discrimination. For example, a person who customarily waxes vulvas cannot discriminate amongst their clients with vulvas, and likewise for a person who customarily waxes scrotums. ... This is largely dispositive of Ms. Yaniv's genital waxing complaints because she has not persuaded me that waxing a scrotum was a service customarily provided by these respondents.

I predict that a similar line of reasoning would be adopted to allow sex workers to choose their clientele.

The discussion in the comments is interesting, so I will more directly address the sex work context:

On balance, the above factors reinforce my prediction that courts will not allow anti-discrimination regimes to constrain the discretion sex workers have to choose their clientele.

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    I wonder if at least some discrimination laws do apply to sex workers, though: can they discriminate based on race? There is not a material difference in providing sexual services to people of different races, but it's an open secret that many sex workers prefer to avoid clients of particular races, so it seems like this is an issue that the courts will have to take up eventually.
    – Brian
    Jan 14 at 21:07
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    @Brian: They probably do apply, but I assume actual prosecution is very difficult, because the sex worker could always claim personal reasons. You would have to prove that they systematically refuse service to members of a particular race etc. - that is probably hard to do in practice.
    – sleske
    Jan 15 at 9:53
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tl;dr: In Germany, prostitution in general is covered by discrimination law. However, providing service based on gender would probably fall under one of the exceptions in discrimination law, thus would be legal. The law presumably still applies in other cases, such as for discrimination based on race or ethnicity.


In Germany, the main law against discrimination is the Allgemeines Gleichbehandlungsgesetz (AGG) (English translation: General Act on Equal Treatment).

The AGG generally outlaws discrimination based on "race or ethnic origin, gender, religion or belief, disability, age or sexual orientation" (Section 1). However, it also lists a number of exceptions where some forms of discrimination are allowed. While it does not explicitly list protitution, Section 20 ("Permissible differences of treatment") says (emphasis mine):

(1) Differences of treatment on the grounds of religion, disability, age, sexual orientation or gender are not deemed to be a violation of the prohibition of discrimination if they are based on objective grounds. This may in particular be the case where the difference of treatment

[...]

  1. satisfies the requirement of protection of privacy or personal safety,

I believe that a prostitute only serving clients of the opposite gender would probably be covered under "protection of privacy", similarly to how bathrooms or changing rooms may be separated by gender. Note that the German original uses "Schutz der Intimsphäre", with Intimsphäre being a bit stronger than just "privacy" - I would rather translate it as "intimate sphere", so it refers to things such as a person's sexuality and other deeply personal issues.

Another parallel: There are many fitness centers that only accept female members, and I am not aware that this has ever been challenged in court, so it seems to generally be considered legal. That would seem to be a similar case.


For further reading, here is an article that specifically addresses the question when the AGG allows different treatment based on gender (only in German, unfortunately):

„Frauenparkplätze - Und ihr wollt emanzipiert sein?“ ("Women parking - so you claim being emancipated?").

It is by the official "Antidiskriminierungsstelle" (the federal body against discrimination), so it is at least a semi-official statement.

The gist of it is similar to my answer - discrimination can be justified if it protects the personal safety or the intimate sphere.

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