Charity refused permission for judicial review over swimming arrangements at Hampstead Heath on basis claim is premature and should have been brought by individual

In Sex Matters v Mayor and Commonality and Citizens of the City of London, Mrs Justice Lieven noted: “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.”

Sex Matters was 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.

Lieven J said: “The Claimant submitted that the Corporation made a ‘formal decision’ on 16 July 2025 to accept the Officer recommendation that the current arrangements should remain unchanged pending the consultation. That was a justiciable decision. This was underscored by the placing of the new signage on 25 July 2025, as an indicator that a new decision had been made.”

The claimant 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.

Considering the application for permission to bring judicial review proceedings, Lieven J 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.

“The substantive decision in respect of access arrangements at the Ponds is the same as it has been since at least 2017, namely that transgender people can swim in the pond of the gender they identify with. That arrangement has not changed. The Corporation accepted a recommendation on 16 July 2025 to continue the existing arrangements and to start a process towards making a fresh decision after consultation. The sign that was erected merely continued those existing arrangements and did not itself indicate any fresh decision.”

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.

She said: “The starting point of the Claimant’s case is direct discrimination, and the statutory scheme in the Equality Act 2010 is focused on individuals who say they have been treated less favourably.”

“There are individuals who argue they have been discriminated against by the Corporation’s decision and therefore could bring individual claims.”

Finally, she found that the County Court would be the appropriate forum for the case to be heard.

Lieven J said: “In the light of my conclusions on the preliminary issues it is not necessary to consider the merits of these grounds in any detail. However, it is relevant that in my view the Grounds are not so obvious or overwhelming as to outweigh any arguments about the challenge being premature.”

Responding to the judgment, a spokesperson for the City of London Corporation said: “We note the Court’s decision. This case has required significant time and resources which could otherwise be focused on managing Hampstead Heath as a charity and providing high-quality public services.

“We have now published the results of a consultation on future access arrangements at the Heath’s bathing ponds.

“The findings will be presented to City Corporation committees which will consider them alongside legal duties, equality impact assessments, safeguarding responsibilities, and operational considerations.”

The spokesperson added: “In the meantime, the current admission rules will remain in place until a final decision has been made by Members.

“Further announcements will be made in due course.”

Sex Matters CEO Maya Forstater said: “The fight for women’s safety, privacy and dignity in single-sex spaces will continue. Just because this particular claim was ruled out on procedural grounds does not give any service provider the green light to allow trans-identifying males into female facilities. 

“The City’s policy and its unwillingness to defend the lawfulness of that policy in court simply pushes the risk of harassment and the cost and difficulty of taking legal cases onto individual women and members of staff. This is deeply unjust.”

Lottie Winson