Is the "women-only tower block" lawful?

The BBC has reported that a tower block is scheduled to open next summer catering exclusively to women. A look at the policies of Women’s Pioneering Housing raises questions about the lawfulness of this proposed practice:

Any provision of services which is not open to everyone is potentially unlawful. If the limitation of service is because of one or more protected characteristics, this will be discrimination contrary to the Equality Act 2010.

Where there are complex policies which multiple alternative conditions it can sometimes be difficult to determine whether there is any discrimination. Let’s walk through this slowly.

Section 29 of the Equality Act 2010 sets out the law relating to the provision of services “to the public or a section of the public”. It states that a person who provides a service to the public or a section of the public, for payment or not, must not discriminate in the provision of that service. Section 29(1) states that a service provider must not discriminate against a person “by not providing the person with the service”.

With a policy such as this, some people unfamiliar with the case law on direct discrimination might presume that because some male people are included and some female people are excluded, there can be no sex discrimination. That is misleading. The ultimate question before a court or tribunal is whether the exclusion suffered by A is because of sex. If it is, then there has been sex discrimination.

As Sir Terence Etherton MR, referencing a policy of sex segregation in a school, noted in Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School [2018] IRLR 334, at [50]:

“The starting point is that EA 2010 s13 specifies what is direct discrimination by reference to a “person”. There is no reference to “group” discrimination or comparison. Each girl pupil and each boy pupil is entitled to freedom from direct discrimination looking at the matter from her or his individual perspective”.

So, let’s examine this from the perspective of a potential complainant. Imagine Bob wishes to apply to live in this tower block. He is refused. The question that must be asked to determine whether this is direct sex discrimination is whether Bob was refused “because of sex”.

On the one had you might say that this is obviously sex discrimination: if Bob were female, he would not have been refused. But on the other hand you might say that if Bob had the protected characteristic of Gender Reassignment or possessed a GRC, he would be included. So his exclusion isn’t because he is male it’s because he is a male who doesn’t have the protected characteristic of gender reassignment or possess a GRC. Leaving aside, for the moment, whether basing inclusion on that basis is discriminatory in some other way, it looks at first blush as though this is not sex discrimination.

However, what that shift in perspective has done is move analysis away from sex discrimination and onto some other question. Bob could be excluded because of both sex and lack of the protected characteristic of gender reassignment. In another context, this would give rise to two separate claims rather than one form of discrimination negating the other.

For example, consider how the law would operate if the tower block had the following policy:

We will allow the following people to be nominated:

1. White people

2. Black or minority ethnic people who are Christian

Now consider whether that is discriminatory against Amy, who is a black muslim. The fact that some black people would be included if they were Christian or that some muslims would be included if they were white does not mean that this policy is not an example of both race discrimination and religious discrimination. All that this means is that Amy has two claims for direct discrimination that she can bring to challenge this policy. A complex, multifactorial policy which discriminates on the basis of several characteristics is not non-discriminatory just because it has multiple vectors of discrimination involved.

Importantly, race or religion need not be the sole reason for the less favourable treatment, so long as it can be shown that a protected characteristic was an important factor in the less favourable treatment (Owen & Briggs v James [1982] IRLR 502; O’Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 61); Hewage v Grampian Health Board [2012] UKSC 37).

In Nagarajan v London Regional Transport [1999] IRLR 572, the House of Lords noted:

“Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

Similarly, in O’Reilly v BBC [2011] EqLR 225, the Employment Tribunal noted at [245]-[246]:

the prescribed reason need not be the sole reason, or even the principal reason, why a person suffers detrimental treatment. Part of the reason that a woman over 40 is precluded from applying for the job, in the above example, is the fact that she is a woman. Another part of the reason is that she is over 40. Both of them are significant elements of the reason that she suffers the detriment. In such circumstances, we consider it is clear that the woman is subject to both sex and age discrimination.

The way that this can be fitted with the comparative exercise set out in the legislation is that a woman over 40 can compare her treatment to a man over 40; by which exercise the sex discrimination element of the treatment is established. Similarly, the woman over 40 can compare her treatment to another person under 40, thereby establishing the age discrimination element.

Taking all of this together, we can see that Amy has two strong claims: one for direct race discrimination and one for direct religious discrimination. In the first, the law must ask whether the fact that Amy is black was an important factor in her being denied service. Clearly it was. Had Amy been white, she would have been admitted without any need to consider her religion. White people were not subject to any further entry requirements, beyond being white. In comparison, Black and minority ethnic people are not automatically included; they must profess a Christian belief to be included.

An astute reader might at this point note that Amy’s hypothetical doesn’t fully reflect the policy that has been adopted by Women’s Pioneer Housing because in that policy some natal females will be excluded if they identify as trans men. So, let’s consider Amy’s situation again but this time replace religion with gender reassignment:

We will allow the following people to be nominated:

1. White people

2. Black or minority ethnic people who have the protected characteristic of gender reassignment

We will not allow nominations from :

1. White people who have the protected characterise of gender reassignment.

This policy is a shortened version of the action Women’s Pioneer Housing policy, but with the protected characteristic of sex replaced with race. The question to be determined here is whether Amy can bring a successful claim of race discrimination as a black person who does not have the protected characteristic of gender reassignment.

To answer that, we must ask whether race played an important factor in her being excluded from the service. Obviously it did. If Amy was white, she would have been included. If she was white, the fact that she does not have the protected characteristic of gender reassignment would mean that she would be included. The fact that she is black and does not have the protected characteristic of gender reassignment means that she will be excluded. What is doing the work here is not gender reassignment; it’s race.

Returning to the actual policy from Women’s Pioneer Housing, rewritten to reflect the protected characteristics that the policy relates to:

We will allow the following people to be nominated:

1. Women

2. Men who have a GRC in the female gender

3. Men who have the protected characteristic of gender reassignment

We will not allow nominations from :

1. Women who have the protected characterise of gender reassignment.

Bob is a man who does not have the protected characteristic of gender reassignment. He will be excluded from this service. The question we must ask is whether sex is an important factor in his exclusion. As with Amy, obviously it is. If Bob were a woman, he would be included. If he were a woman, the fact that he does not have the protected characteristic of gender reassignment means that he would be included. The fact that he is a man who does not have the protected characteristic of gender reassignment means that he will be excluded. What is doing the work here is not gender reassignment; it’s sex.

Similarly, this policy also amounts to direct gender reassignment discrimination against those biological women who identify as men and who are proposing to undergo, are undergoing, or who have undergone a process or part of a process of gender reassignment. If a trans man didn’t have the protected characteristic of gender reassignment, there would be no exclusion.

This policy amounts to direct sex discrimination and direct gender reassignment discrimination. This policy is also not covered under the Schedule 3 exceptions in the Equality Act which permit sex discrimination and gender reassignment discrimination in the provision of a single-sex service because, obviously, this is not a single-sex service within the meaning of the Equality Act. To be included within the Schedule 3 exceptions as a single-sex service, the service must operate on the basis of biological sex (For Women Scotland [2025] UKSC 16). I’ve written a detailed analysis of this point here.

If Women’s Pioneer Housing proceeds with this policy, it will be exposed to liability for a claim of direct sex discrimination from any man who does not have the protected characteristic of gender reassignment who is denied service. It will also be exposed to liability for a claim of direct gender reassignment discrimination from any trans man who is excluded. Duty-bearers under the Equality Act 2010 must be cognisant of the fact that “inclusive” services which seek to limit provision to some groups in society are liable for the discrimination entailed in this, unless they can rely on a statutory exception.