Sex Matters v City of London: judicial review refused over Hampstead Heath pond access policy

The High Court has refused permission for judicial review in a challenge brought by Sex Matters, a charity promoting sex-based rights, against the City of London Corporation's admission arrangements at the Kenwood Ladies' Pond and Highgate Men's Pond on Hampstead Heath.

Since at least 2017, both biological women and trans women have been permitted to swim at the Ladies' Pond, whilst both biological men and trans men have been permitted at the Men's Pond. These arrangements have operated consistently with the Corporation's Gender Identity Policy adopted some years ago.

Following the Supreme Court's judgement in For Women Scotland v The Scottish Ministers [2025] UKSC 16 in April 2025—which held that trans women with a Gender Recognition Certificate do not fall within the definition of "women" for the purposes of the Equality Act 2010—the Corporation announced it was reviewing its access policies. In July 2025, the Corporation commenced a public consultation exercise which closed in November 2025, having received 38,742 responses. A final decision on future arrangements is expected in March 2026.

The legal challenge

Sex Matters brought judicial review proceedings alleging breaches of sections 29, 13 and 19 of the Equality Act 2010, claiming direct and indirect sex discrimination. The Corporation raised preliminary objections on grounds of delay, prematurity, standing, and the availability of an alternative remedy in the County Court.

Mrs Justice Lieven's decision on prematurity

The judge found that no fresh decision amenable to judicial review had been made. The substantive access arrangements remained unchanged since 2017. The Corporation's decision in July 2025 was merely to continue existing arrangements whilst undertaking a consultation process.

Relying on Inclusion Housing v Regulator of Social Housing [2020] EWHC 346, Mrs Justice Lieven held that the challenge was premature. The judge noted that the Corporation was engaged in "the equivalent of the internal review process" and should be permitted to complete its consultation and reach a considered decision before facing legal challenge.

The judge rejected the claimant's argument that this was a challenge to a continuing state of affairs. She distinguished R v Birmingham City Council ex p Equal Opportunities Commission [1989] AC 115, noting a significant factual difference: unlike that case where an unlawful policy continued with no suggestion of change, the Corporation was "actively engaged in public consultation and legal advice in order to reach a fresh decision."

Standing and alternative remedies

The judge found that the more appropriate claimants would be individuals who alleged they had been discriminated against, rather than a representative organisation. Section 114(1) of the Equality Act 2010 provides that the County Court has primary jurisdiction over discrimination claims concerning provision of services under section 29.

Applying the principles from R (Good Law Project) v The Prime Minister [2022] EWHC 298 (Admin), Mrs Justice Lieven observed that direct discrimination claims necessarily focus on individuals treated less favourably. Several women had provided witness statements and could bring individual claims if they wished.

The judge rejected arguments based on financial constraints or publicity concerns, noting these factors alone did not justify departing from the statutory scheme envisaging individual claims in the County Court. Where anonymity issues arose, these could be addressed by the court in County Court proceedings.

Mrs Justice Lieven distinguished R (Rights Community Action) v Secretary of State for Levelling Up [2024] EWHC 359, where a community group had standing to challenge a planning decision. A local community group challenging planning decisions was "much more likely to have standing than an interest group in a discrimination claim," given the need to consider facts relating to individual claimants.

Institutional considerations

The judge emphasised several institutional factors pointing towards the County Court as the appropriate forum. Section 114(7) of the Equality Act creates a structure including the appointment of assessors specifically designed for such claims. The County Court, exercising expert jurisdiction in this context, was better placed than the Administrative Court to determine primary facts such as the facilities at the respective ponds.

Allowing judicial review risked "undermining the will of Parliament" as expressed in the statutory scheme, applying R (Davies) v Financial Services Authority [2004] 1 WLR 185.

Implications

Whilst refusing to consider the substantive grounds in detail given her conclusions on the preliminary issues, Mrs Justice Lieven noted the grounds were not "so obvious or overwhelming as to outweigh any arguments about the challenge being premature." She observed that the Corporation's wish to consider legal advice about the effects of For Women Scotland following consultation was an appropriate course given the "complex and highly sensitive issues at stake."

The judgement leaves open the possibility of challenge once the Corporation makes its final decision, whether by individuals in the County Court or potentially by judicial review, depending on the nature of that decision and the circumstances prevailing at that time.

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