High Court throws out challenge to trans swimmers using single-sex changing rooms at Hampstead Heath ponds

Sex Matters took legal action against the City of London Corporation, for their policy of allowing trans people to use the facilities for the gender with which they identify amounts to sex discrimination.

It said the policy of allowing trans people to use the facilities for the gender with which they identify amounts to sex discrimination.

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But Mrs Justice Lieven dismissed the challenge saying the “appropriate forum” for the claim is the county court, rather than the High Court.

She said: "In my view the more appropriate person to bring this claim is an individual who says that they have been discriminated against by decisions about access to the ponds.”

The judge’s decision comes after the Supreme Court ruling last year, which said that a person’s legal sex is the one they were biologically assigned at birth.

Tom Cross KC, for the charity, said at a hearing in December that the rules treat an individual woman “less favourably” than an individual man, as they are at “greater risk of suffering the detriment of her privacy, dignity or safety being compromised”.

He said the City of London Corporation should change its policy after the Supreme Court ruling.

Daniel Stilitz KC, for the City of London Corporation, said the claim should have been dismissed for being out of time because the current policy has been in place since 2017.

He described the legal action as "unhelpful, premature and the wrong way for doing these things".

A consultation run by the City of London Corporation and published on Thursday found that nearly 90% of respondents backed trans-inclusive access to the ponds.

More than 38,000 people took part in the consultation over a period of two months.

Of those, 84% of respondents to the consultation had swum at the bathing ponds and 74% lived in London, the City of London Corporation said.

Six options were considered for the Kenwood Ladies, Highgate Men’s and Hampstead mixed ponds, with 86% of respondents supporting the existing trans-inclusive access arrangements.

Some 86% also opposed introducing strict single sex access, 90% of people rejected requiring trans swimmers to use separate changing rooms or have separate swimming sessions, while 66% opposed making all ponds mixed sex.

Mrs Justice Lieven said in her judgment: “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.”

She continued: "It is in my view particularly inappropriate to allow a challenge out of time, when the decision maker is themselves undertaking a complex process leading up to the making of a fresh decision."

A spokesperson for the City of London Corporation said the current admission rules will remain in place until a final decision has been made following the judge’s ruling.

They said: "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."

Sex Matters said it was disappointed with the judge’s decision and that it is considering its legal options.

The charity’s chief executuve 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."

A spokesperson for advocacy group Trans+ Solidarity Alliance said: "It’s a shame that yet more public money has had to be spent defending against endless lawfare from a vocal, well-funded minority trying to force trans people out.

"Trans inclusion is the norm across the country, and this Government needs to act to ensure clarity and confidence for service providers to continue this without leaving them at risk of expensive litigation."