5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

(2) F14[Subject to subsections (4) and (4A), subsection (1) shall not apply in respect of—]

(a) an activity referred to in section 7(2),

(b) a service related to a matter provided for under section 6, or a service offered to its members by a club in respect of which section 8 applies,

(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient,

(d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk F15[(other than on the gender ground or in any other circumstances to which the Gender Goods and Services Directive is relevant)] where the treatment—

(i) is effected by reference to—

(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or

(II) other relevant underwriting or commercial factors,

and

(ii) is reasonable having regard to the data or other relevant factors,

F15[F14[(da) differences in the treatment of persons on the gender ground, or in any other circumstances to which the Gender Goods and Services Directive is relevant, related to the assessment of risk in respect of classes of insurance to which this paragraph applies pursuant to subsection (3) where the treatment—

(i) is effected by reference to—

(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or

(II) other relevant underwriting or commercial factors,

and

(ii) is reasonable having regard to the data or other relevant factors, and

(iii) is effected, in the case of a class of insurance specified in paragraph (a) or (b) of subsection (3), pursuant to a contract which is concluded before 21 December 2012,]]

(e) differences in the treatment of person on the religion ground in relation to goods or services provided for a religious purpose,

(f) differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,

(g) differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender,

(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,

(i) differences in the treatment of persons on the gender, age or disability ground or on the ground of race, reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment,

(j) an age requirement for a person to be an adoptive or foster parent, where the requirement is reasonable having regard to the needs of the child or children concerned,

(k) a disposal of goods by will or gift, or

(l) differences, not otherwise specifically provided for in this section, in the treatment of persons in respect of the disposal of goods, or the provision of a service, which can reasonably be regarded as goods or a service suitable only to the needs of certain persons.

F15[(3) The classes of insurance to which paragraph (da) of subsection (2) applies are—

(a) those classes of insurance named ‘Motor Insurance’ in Part B of Annex I to the European Communities (Non-Life Insurance) Framework Regulations 1994 (S.I. No. 359 of 1994),

(b) those classes of insurance, being life assurance, specified as Class I, III or IV in Part A of Annex I to the European Communities (Life Assurance) Framework Regulations 1994 (S.I. No. 360 of 1994), and

(c) those classes of insurance which are contracts of insurance, or other insurance arrangements, which fall within paragraph (d) of the definition of ‘health insurance contract’ in the Health Insurance Act 1994 if, but only if, the differences in treatment referred to in paragraph (da) of subsection (2), in so far as they relate to such contracts or arrangements, as the case may be, are permitted by the law of the place where such contracts or arrangements, as the case may be, are marketed.

(4) With effect on and after 21 December 2009, nothing in subsection (2) shall be construed to permit differences in the treatment of persons in relation to premiums and benefits payable under insurance policies based, whether in whole or in part, on costs incurred by insurers in relation to pregnancy and maternity.

F16[(4A) (a) With effect on and after 21 December 2012, nothing in subsection (2) shall be construed to permit differences in the treatment of persons on the gender ground, or in any other circumstances to which the Gender Goods and Services Directive is relevant, related to the assessment of risk in respect of contracts of insurance of the classes of insurance specified in paragraph (a) or (b) of subsection (3) where such contracts are concluded on or after that date.

(b) For the avoidance of doubt, nothing in paragraph (a) shall be construed as applying to a contract of a class of insurance specified in subsection (3)(a) where the contract concerned is concluded before 21 December 2012 and expires before 21 December 2013, irrespective of whether any adjustment to the insurance cover provided under that contract or any related adjustment to premium is made to the contract concerned during its term and, accordingly, subsection (2)(da) shall continue to apply to that contract during its term.]

(5) Subject to section 41(2A), the Central Bank and Financial Services Authority of Ireland (within the meaning of the Central Bank Act 1942 as amended by the Central Bank and Financial Services Authority of Ireland Act 2003) shall compile, publish and maintain data relevant to the use of gender as a determining actuarial factor in the assessment of risk in relation to the classes of insurance to which paragraph (da) of subsection (2) applies pursuant to subsection (3).]

F16[(6) The obligations imposed on the Central Bank of Ireland (within the meaning of the Central Bank Act 1942 (as amended by the Central Bank Reform Act 2010)) by virtue of subsection (5), in so far as those obligations relate to the compilation of data referred to in that subsection, shall cease to have effect on and after 21 December 2012.

(7) Nothing in subsection (6) shall be construed to affect the obligations imposed on the Central Bank of Ireland by virtue of subsection (5), to continue to maintain and publish data referred to in that subsection compiled before 21 December 2012.]