Court of Appeal grants permission for judicial review over admission to swim at Hampstead Ponds

The High Court had previously refused to grant permission on the basis that the claim was “premature”, that the more appropriate person to bring the claim would be an individual, and that the County Court was the “appropriate forum”.

Granting permission, Lady Justice Elisabeth Laing concluded in the Court of Appeal that the judge did not engage with the merits of the grounds for judicial review except at the end of her judgment.

Laing LJ said: “She indicated that they were ‘not so obvious or overwhelming as to outweigh any arguments about the challenge being premature’. She did not ask, or answer, the question whether they were arguable.”

Sex Matters is seeking to challenge the current admission arrangements at the Kenwood Ladies’ Pond and the Highgate Men’s Pond.

The Ponds are maintained by the Mayor and Commonalty and Citizens of the City of London (the Corporation).

Since at least 2017, both biological women and trans women have been permitted to swim at the Ladies’ Pond and both biological men and trans men have been permitted to swim at the Men’s Pond. There is also a Mixed Pond, where anyone can swim.

On 16 April 2025, the Supreme Court handed down judgment in For Women Scotland v The Scottish Ministers [2025] UKSC 16 [2025] 2 WLR 879.

The judgment concerned whether trans women with a Gender Recognition Certificate (GRC) fell within the definition of “women” for the purposes of the Equality Act 2010. The Supreme Court held that they did not.

On 30 June 2025, the Corporation announced that it was reviewing its access policies in the light of the Supreme Court’s judgment.

On 16 July 2025, a Committee Report went to the Hampstead Heath, Highgate Wood and Queen’s Park Committee recommending that a formal consultation be undertaken to inform the review. The Committee authorised the conduct of a full consultation process.

On 25 July 2025, the Corporation placed additional notices at the entrance to both swimming ponds.

The new sign for the Ladies’ Pond said:

“Those who identify as women are welcome to swim at the Kenwood Ladies’ Bathing Pond.

The Ladies’ Pond is open to biological women and trans women with the protected characteristic of gender reassignment under the Equality Act 2010.

The City of London Corporation is preparing a public consultation on the future admissions policy at the Ladies’ Pond.”

A new sign in analogous terms was placed at the Men’s Pond.

Seeking permission for judicial review, Sex Matters relied on the following grounds:

1. Breach of s.29(1) and 13 Equality Act 2010 (“the Act”), involving direct discrimination on the grounds of sex in respect of both Ponds;
2. Breach of s.29(2) and 13 of the Act on the basis of direct sex discrimination in the provision of the service at the Ladies’ Pond;
3. Breach of s.29(2) and 19 of the Act on the basis of indirect sex discrimination, essentially on the same factual basis as Ground 2.

In the High Court Mrs Justice Lieven said: “In my view the Corporation has not made a fresh decision which is amenable to judicial review, but rather it is in the process of so doing. Therefore, the Claimant is premature in bringing a challenge at this point in the decision-making process.”

Turning to the claimant’s standing to bring the claim, Lieven J found that the more appropriate person to bring the claim would be an individual who says that they have been discriminated against by decisions about access to the Ponds.

Rejecting this conclusion, Laing LJ said: “Examples of such individuals were those who had signed witness statements in support of the application for judicial review. The statutory scheme envisaged claims by individuals in the county court. The fact that the claimant could not bring such a claim reinforced that conclusion.

“It is arguable that [this] aspect of the Judge’s judgment is wrong, not least because, as [Sex Matters] points out, the statutory scheme also envisages an application for judicial review (section 113(3) of the Equality Act 2010). As [Sex Matters] also points out, this part of the decision appears to contradict many authorities in which it has been held that expert charities do have standing to bring claims for judicial review, even where individuals can also do so.”

Meanwhile, Laing LJ found that the High Court judge did not engage with the merits of the grounds for judicial review except at the end of her judgment.

She said: “She indicated that they were ‘not so obvious or overwhelming as to outweigh any arguments about the challenge being premature’. She did not ask, or answer, the question whether they were arguable. The Respondent’s engagement with the merits at the end of observations is brief and unpersuasive.”

Laing LJ continued: “The Judge held that the challenge was too late and refused to extend time for bringing it because the Decisions did not amount to a ‘fresh decision’ and the substantive decision about access had been made several years previously. It is arguable that that aspect of the Judge’s judgment is wrong, not least because the Decisions were arguably the Defendant’s interim response to a relevant change in circumstances, that is, the decision in For Women Scotland.

“The Judge also accepted an argument that the claim was an attempt to limit the Defendant’s options in the proposed consultation, and that it was contrary to principles of good administration to permit the challenge at that stage – in other words, that the challenge was premature (as well as being too late). It is also arguable that aspect of the Judge’s judgment is wrong.”

Finally, Lady Justice Laing observed that if the Judge was right that the claim was too late, “the factors relied on by [Sex Matters] indicate that the Judge’s refusal to extend time for bringing the claim are also arguably wrong”.

The Court of Appeal left it to the Administrative Court “to give directions for the further progress of this application”.

A spokesperson for the City of London Corporation, which manages Hampstead Heath as a registered charity, said: “We note the decision and will continue to contest this case vigorously.

“These continuing legal challenges require significant time and resources, diverting funds away from managing Hampstead Heath as a registered charity and providing high-quality services for the public.”

They added: “The results of our recent public consultation showed that a clear majority of respondents – including a high number of regular pond users – supported continuing the current, trans-inclusive arrangements.

“Members of the relevant City Corporation committees will consider these findings alongside legal duties, equality impacts, safeguarding responsibilities, and operational considerations when making a final decision about the future access arrangements of the Bathing Ponds on Hampstead Heath in due course.”

Lottie Winson