Sex Matters’ legal challenge is set to go ahead, with a hearing at the Royal Courts of Justice listed for 3rd and 4th November.

The decision to approve the policy was made in a meeting of the Policy and Resources Committee on Thursday 4th June, chaired by Hayward. He told the assembled members: “I am aware of the strength of feeling on both sides.” Stewart guided members towards voting for option two: “retaining the current trans-inclusive operation of the men’s and ladies’ pond”, alongside the introduction of “a clear access policy” and commitments to spend up to a million pounds to improve the changing and showering facilities at the three ponds.

The committee members had been given a private briefing the day before, but they appeared confused about the “clear access policy” they were being asked to agree to. What exactly does the City of London mean by “trans woman” and “trans man”? Everyone seemed too embarrassed to ask this question clearly, despite the legal and financial risk they were being asked to accept.

Ann Holmes, the City’s “chief commoner” – a role that involves acting as an ambassador for the organisation at ceremonial occasions and working to uphold the rights and privileges of the organisation’s elected members – thought that the new code of practice from the Equality and Human Rights Commission (EHRC) was “new legislation” and that the committee might need to consider it in a month’s time. She pointed to the legal definition of the protected characteristic of gender reassignment in the Equality Act and said:

“That definition seems to me to be very clear and very limited in who is properly regarded as having that characteristic. But when you read through the report, it seems to be saying we have no way of knowing this. We have no way of monitoring that. Basically, if somebody comes in and says I am a woman, we have to accept that. And I wonder how that actually fits with the recommendations we’re making?”

Steve Goodman, Labour Party member for Aldersgate, said that, in his view: 

“If we are going to have a Ladies’ Pond, then that should be for biological women only.”

But he also said:

“If they’ve got a gender-reassignment certificate, I don’t see why anyone would have an issue about them swimming in the women’s pond. But if they haven’t, then I think it will continue to create difficulty for our staff at the ponds who should be uppermost in our mind.”

Deputy Caroline Haines said that she had been reassured that “if we continue with the same provision that we have, then we are best protected by law”. She concluded that option two is “really the only reasonable option”. 

Brendan Barns, the chair of the culture, heritage and libraries committee, said he strongly supported option two, partly on the basis of the consultation but also because “the current arrangements have been in place for almost a decade, and there is only one documented incident”.

The lack of documented incidents may reflect the City’s policy of not recognising incidents because it does not recognise biological sex. Author Amanda Craig described her experience in an article in The Telegraph published on 6th June:

“I emerged from a cubicle into the small, cramped changing rooms at the Ladies’ Pond one hot summer’s day for a swim, I was astounded to find a big hairy man, genitals clearly intact, parading around.

I shot out at once, and when I told one of the pool lifeguards – tough, no-nonsense women who had fearsome reputations among generations of North London teenage boys silly enough to try and invade the ponds as a dare – I expected them to be up in arms, or call the police. No such luck.

‘There’s nothing we can do,’ I was told. ‘It’s policy to allow trans women.’

‘But this is a man. You can see he’s a man.’

The lifeguard grimaced.

‘If they claim to be a woman, we can’t do anything.’”

Alderman Vincent Keaveney had read the EHRC guidance and was concerned that it suggests the City’s preferred policy would “very likely” amount to unlawful sex discrimination against people of the opposite sex who were not allowed to use a service, and that a mixed-sex service must be open to all service users. He asked:

“If we adopt option two as recommended, are we then able to continue to maintain men’s and women’s ponds as we currently maintain them with the distinction? With that trans-inclusive policy that we’ve adopted, will we ultimately have to open the ponds to men and women alike and trans men and trans women alike?”

Councillor Goodman and Henry Colthurst, the chair of the finance committee, argued that the City should “follow the case law”. But this caution was swept away, as the committee voted in favour of gender self-ID.

Stewart told them that enforcing rules based on sex was out of the question because “there is very little way in which you can do that in a dignified way”. She said that under option two “staff will use common sense” to decide which men to allow in and which to exclude.

Florence Keelson-Anfu, the chair of the HR committee, asked for “a separate paper to maybe come back to corporate services on how we’re going to protect our staff”, focusing on verbal abuse they might receive.

Is this lawful?

The committee went into closed session to hear answers to their queries about whether this “common sense” approach is lawful. It also received a short paper on the legal implications arising from the EHRC draft code of practice on services, which gives a clue to the answers they would have been given in private by City solicitor Michael Cogher. It fails to define the basic contraventions related to sex discrimination and harassment and sexual harassment in the Equality Act, or to make sure that the committee members fully understood the risk they were being asked to take by instructing their staff to use “common sense” to exclude most men from a service, but to admit some men (and call them women) and to allow those men to undress with women and girls who have been told it is a female-only space. None of this can be solved by building a few more cubicles. 

The City of London’s argument in the legal paper is that:

“A trans-inclusive service may not amount to direct sex discrimination, since the exclusion would be based on lived gender, not sex.” 

“Moreover, even if the provision of a trans-inclusive service would otherwise amount to unlawful sex discrimination, such discrimination will not be unlawful if the service-provider lawfully applies the positive action provisions under section 158 of the 2010 Act.” 

We look forward to testing these arguments in court. 

Who will pay the bill?

There was much discussion of where the £1 million for building works for new cubicles and other refurbishments would come from: the City of London’s contingency funds or the budget already allocated to the charity that runs Hampstead Heath (of which the City of London is the sole trustee). 

Alderman Henry Colthurst, who signs off the Hampstead Heath charity’s annual accounts, warned against the City continuing to underwrite the charity’s costs with a blank cheque. It makes the City  a sitting duck for unplanned expenses, he said. “I just think we need to be very alive to the impact of having these deficit-funded charities on our books because we are making ourselves look pretty stupid.”

No one representing the governing body for London’t financial centre mentioned the legal and financial risk of directing staff to implement a policy which defies the Supreme Court and which the EHRC says is “very likely” to result in potential liability for mass sex discrimination. 

All staff that work on behalf of the Hampstead Heath charity are employed by the City Corporation. As the Equality Act makes clear at Section 109(1): 

“Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.” 

Several of the City councillors were rightly concerned about the welfare of their staff. But this didn’t seem to extend to carefully considering the legal risk they are placing them under. Employees are personally liable for unlawful discrimination and harassment that they commit by implementing their employer’s policies (even if the employer is also liable). Section 110 (3) gives employees a get-out clause if they rely on a statement by the employer “that doing that thing is not a contravention of this Act” and it is reasonable for them to have trusted the statement.

If City of London bosses are confident that they understand their legal responsibilities and are concerned for the welfare of the lifeguards, constabulary officers and other staff on Hampstead Heath, they should make a statement reassuring them that the policy does not instruct them to contravene the Equality Act. 

Chris Hayward, Alderman Colthurst and their colleagues should pay particular attention to Section 110 (4) of the Equality Act, which establishes that if they ”knowingly or recklessly” make such a statement and it is “false or misleading in a material respect”, they will have committed a criminal act. 

Where is the EHRC?

The City of London has spent a lot of time and money avoiding complying with the law. We will see it in court in November, unless it backs down. But it really shouldn’t be this hard for a group of well-paid, responsible professionals from the nation’s financial centre to understand the Equality Act, which covers businesses of all sizes. 

The EHRC could help resolve this issue now, simply and cheaply. It could send the City of London’s Policy and Resources Committee a letter explaining that the policy to which the committee has agreed will very probably result in staff contravening the Equality Act in fundamental ways, and that it would, in the regulator’s view, be false and misleading to reassure them otherwise. The EHRC could also explain to the City of London that if it operates the ponds as separate-sex services, under Schedule 3 Part 7 (that is, based on biological sex) then it will not be instructing its staff to contravene the law. 

It should publish this letter to make clear that any statement to the contrary by the City of London, its political leaders or senior executives would be both reckless and knowing. This might focus the minds of the members of the Policy and Resources Committee when it next meets on 9th July on the risks it is signing up to accept, instead of continuing to distract themselves with building plans for cubicles.

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Our application for “expedition” – that is, for an early hearing – was turned down. So was the City of London’s application for a “stay” to slow it down. The judge, Mr Justice Bourne, recognised that “there is a real public interest in the issues in this claim”. But he said that the impact of the City of London’s decision-making remains to be seen: it might bring the claim to an end, or require it to be amended. 

We don’t think it looks likely that we will end the claim, as the City of London is going full steam ahead in deciding to continue allowing trans-identifying men into the women’s pond, and trans-identifying women into the men’s. 

The latest meeting of the Hampstead Heath, Highgate Wood and Queen’s Park Committee, which manages the ponds, was held on 12th May. During it, the proposed policy was voted on and approved by the elected members (it now needs to go forward to a different committee on 4th June). There was much talk about plans to spend £1 million on improvements to the changing areas, but barely any about the fundamental question of whether it is lawful to operate a service in this way in the first place. 

One committee member asked about the forthcoming updated code of practice from the Equality and Human Rights Commission, and was told that “there is no version of the EHRC code that we can rely on at the moment”. 

So while everyone else has been saying “wait for the guidance”, the City of London has proceeded as if there is no guidance at all. In fact the existing EHRC guidance from 2011 has not been withdrawn, and despite its flaws it explains the basics of the Equality Act that the City of London is trying to skirt around quite adequately (emphasis added):

Definitions

2.55 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and/or boys, or women and/or girls. 

2.56 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment or sexual orientation.

Direct discrimination

Indirect discrimination

5.4 Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.

None of this is difficult or complex. 

The City of London’s position is that the men’s and women’s ponds are not single-sex spaces, and that is it therefore is not using the exceptions at Schedule 3 Part 7 of the Equality Act at all. It says:

“Whilst there is a risk of challenge to this option on the basis of direct or indirect sex indirect discrimination, these are again fact-sensitive questions. The City Corporation cannot rely on the exceptions under Schedule 3 to the Equality Act 2010 to resist a claim, because the Men’s Pond and the Ladies’ Pond would not be being operated as single-sex spaces. However, it is unlikely that this would amount to direct sex discrimination, as the relevant criterion for entry would in effect be one of lived gender, not biological sex. In other words, at least some biological men and some biological women would be able to access each of the Men’s Pond and the Ladies’ Pond.”

The committee that waved the policy through did not ask itself whether this analysis aligned with the Equality Act, as explained by the existing code. But even if it fell for such wordgames, we do not think the High Court will.

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The papers submitted to the committees show the knots organisations tie themselves in when they are unwilling to do the straightforward lawful thing. They offer a glimpse of the detail of the legal arguments the City’s executives are planning to rely on in court.

The policy recommendation from officials is that the men’s pond should continue to be open to “men and trans men” and the women’s pond to “women and trans women”. Users, it says, “should not challenge other users regarding their sex or gender”. Staff should concern themselves with behaviours, not bodies.

The policy is silent on what rules apply to non-binary identifying individuals (who were allowed to use whichever facilities they want under the 2019 policy). Seven percent of survey respondents said they were non-binary.

The pack includes a series of photographs of the facilities which the City officials say are situations where it would be unlawful for it to operate a strictly separate-sex service, and instead lawful to allow naked adult males to mix with 15-year-old girls.

The City of London relies strongly and credulously on its consultation, which received responses from 31,296 people who claimed to have used these facilities, including 20,821 who claimed to have used them in the previous three months. 

It suggests that there could be a boycott of the ponds if it provided them as separate-sex services.

Because of the weight of numbers in the consultation, the City of London argues that it is not open to it to use paragraph 26 of Schedule 3 to provide a lawful separate-sex service: 

“It is difficult to see how a policy of strict segregation on the basis of biological sex could be justified.”

Its equality impact assessment says:

“The absence of substantiated risk, the long-standing operation of the current arrangements without incidents, the availability of privacy enhancing facilities, and the strong support expressed through consultation evidence mean that restricting access by sex would be disproportionate to the concerns identified.”

Furthermore it says that its staff are unable to visually distinguish between males and females. 

It says this is a complex situation, and “there are risks of unlawfully discriminating whichever option is adopted”. It notes that TransLucent (self-described as “advocates for the UK’s transgender and gender-diverse community”) has indicated that it intends to intervene in the proceedings.

The City officials say operating the two ponds with clear rules based on biological sex would:

“have an adverse effect on trans people, who would be forced to use alternative facilities where they do not feel as comfortable or safe. It would prevent them from bathing in the Pond corresponding to their lived gender.”

Instead of proposing the legally straightforward option of using paragraph 26 of Schedule 3 and providing the two ponds as a separate-sex service, the City’s executive invites the committee members to make decisions based on some extremely bold legal arguments:

• It says that the City of London doesn’t need to rely on Schedule 3 in order to avoid unlawful direct sex discrimination because its signs saying men only and women only refer to “lived gender, not biological sex”.
• In relation to indirect discrimination, it says that if allowing trans-identifying men into the women’s pond undermines the privacy, dignity and sense of safety of women, this can be justified as a proportionate means of achieving a legitimate aim. The legitimate aim is “ensuring that users can access the ponds according to their lived gender, whatever their biological sex”.
• It argues that its policy that allows fully intact males into spaces where teenage girls and women are showering can be justified as “positive action” pursuant to section 158 of the Equality Act 2010 as it overcomes a  disadvantage of trans people “being unable to live fully in accordance with their gender on a day-to-day basis”. In other words, the disadvantage that trans people face is that other people have rights, and the solution that City officials propose is to disregard them.

On 5th May the Hampstead Heath Consultative Committee will discuss the report, followed by the Hampstead Heath, Highgate Wood & Queen’s Park Committee on 12th May. Finally on 4th June the Policy & Resources Committee will decide whether to adopt the recommended policy. 

We look forward to testing these arguments in court. 

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But a few days ago it made a last-ditch attempt to avoid making substantive legal arguments at all.   

It applied to the court for the case to be “stayed” on the basis that its committees will soon reach a final decision on what admission arrangements to adopt following its consultation. 

Previously it told the High Court a final decision “will be taken in March 2026”. It now says that timetable “was somewhat optimistic” but it is “confident” that a final decision will be made on 4th June 2026.

Sex Matters first wrote to the City of London on 17th June 2025, calling on it to reconsider its policy, which we say commits it to undertaking unlawful sex discrimination in several different directions. It refused. We filed our claim in August 2025 and asked for it to be expedited. 

We want the court to hear what the City has to say as quickly as possible, so the City can get on with adopting a lawful policy and giving swimmers and staff confidence about who can go where.

The City has been dragging its feet using procedural arguments to try to avoid defending its policy. It said that our claim was too early and that it was too late, that there was no decision to challenge, that the claim shouldn’t be brought by way of judicial review and that Sex Matters didn’t have standing to bring it. Now that “the dog ate my homework” arguments have failed, the City of London says there is no time left for it to answer the substantive claim. 

It argues that it should not have to defend the lawfulness of its current policy at all, since – it says – the issue will become “academic” once a final decision over the policy is made.

But the Administrative Court Guide makes clear that: 

“A stay will not normally be permitted to enable the defendant to reconsider the decision under challenge in the claim.” 

And in any case, unless the City of London abandons any variation on allowing trans-identifying men into the Ladies’ Pond, a judgment testing a version of the approach will serve a practical purpose.

It is now over a year since the Supreme Court judgment clarified the law, and we still haven’t heard a full account from the City of London of why it thinks that allowing some men into the women’s pond and showers while excluding others is lawful. It did say in July: 

“The Corporation is expressly not seeking to rely on the [single and separate-sex service] exceptions under paragraphs 26–28 of Schedule 3 EqA.” 

In September it said: 

“One possible outcome of the review is that a trans-inclusive policy is, in the Corporation’s view, lawful positive action pursuant to s.158 EqA.”

In granting permission for our claim to go ahead, Lady Justice Elisabeth Laing called the City’s response to the substantive claim “unpersuasive”.

No wonder the City is still trying to wriggle out of making these arguments in court. 

Meanwhile the weather is getting warmer and more women and girls are self-excluding, or risking being exposed to men as they use the open showers at the Ladies’ Pond. And staff and police officers on Hampstead Heath are being put at risk of engaging in discrimination and harassment in trying to implement the City of London’s policy.

Under Section 110 of the Equality Act, employees can avoid liability for contravening the act if they have relied on a statement by their employer that the action they were being told to undertake is lawful. The employer commits a criminal offence if it knowingly or recklessly makes a statement on this to its employees which is false or misleading in a material respect.

The City of London Corporation, and other duty bearers under the Equality Act, cannot keep hiding behind excuses. They are going to have to come out into the sunshine and explain why they think it is lawful to do what they are doing. The City has already wasted too much time and money trying to avoid doing the only responsible thing, which is to follow the law.

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The incident was recorded as a sexual offence. The Kenwood Ladies’ Pond Association said it would share my concerns with the City of London Corporation, which manages the ponds. But it never got back to me and nothing changed. 

Going to the Ladies’ Pond was crucial to me in getting through a period of severe depression. It continues to be crucial to my mental health and quality of life. Swimming in cold open water and communing with nature in a safe space away from the male gaze is healing. But I’ve felt apprehensive about going to the ponds ever since I started encountering men who are insistent on accessing spaces where women and young girls are naked, despite knowing that for many, probably most, women, this is non-consensual and experienced as a violation of their safety, privacy and dignity.

Like many women, I’ve been subjected to sexual harassment throughout much of my life, and have experienced sexual violence. To hear a man’s voice in a woman-only space registers as threatening to my nervous system. My overwhelming feeling is that my, and other women’s, privacy is being seriously violated. The healing effect of the Ladies’ Pond has been badly compromised.

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Women have been swimming in the pond on Hampstead Heath known as Kenwood Ladies’ Pond for nearly a hundred years. The City of London Corporation says that despite the Supreme Court ruling which says that sex means biology, it will still allow trans-identifying men to swim at the women’s pond, and it has run a rigged “consultation” to support this.

We were initially turned down for judicial review after the City Corporation tried to get away without having to defend the lawfulness of its policy. Now the Court of Appeal has overturned that judgment, recognising that “expert charities” like Sex Matters have standing to bring claims for judicial review and calling the City’s arguments in defence of its policy “brief and unpersuasive”.

We hope that the full hearing at the High Court will be before the end of the court term in July.

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Sex Matters has won its appeal against the High Court’s refusal in February to allow us to challenge the City of London’s gender-identity policy at the bathing ponds on Hampstead Heath.

The Court of Appeal recognised that “expert charities” such as Sex Matters have standing to bring claims for judicial review and called the City’s arguments in defence of its policy “brief and unpersuasive”.

The judge, Lady Justice Elisabeth Laing, granted our request for permission for judicial review, and is sending our case on to be heard in full. 

From 2017 the policy at the bathing ponds was to allow men who identify as transwomen, non-binary, genderqueer and so on to access the women’s pond, changing rooms and showers, with a similar system at the men’s pond. 

We had sought permission to challenge the lawfulness of the City of London’s decision to continue to permit men who identify as women, under a modified policy, to use the women’s pond in summer 2025, following the For Women Scotland judgment. 

To bring a judicial-review claim you have to meet the legal tests for standing and time limits.

Standing

The legal test for standing is whether you have a “sufficient interest” in the decision made. This can be because you are directly affected by the decision, or because you are an organisation representing the public interest.

The High Court had denied us standing by comparing us to the Good Law Project, despite Sex Matters being a charity with specific objects focused on the sound administration of the law in relation to sex. It said that individual women or men should instead bring claims to the County Court. 

Lady Justice Laing in the Court of Appeal agreed with us that this part of the decision appears to contradict the legal precedent that “expert charities do have standing to bring claims for judicial review, even where individuals can also do so”.

Time limits

The normal time limit for bringing a judicial review is three months from when the decision that’s being challenged was made. We argued that the City of London Corporation had made a new decision on 16th June 2025 when its committee agreed to maintain the current arrangements pending a public consultation. It then put up new signs saying “those who identify as women are welcome to swim at the Kenwood Ladies’ Bathing Pond”. 

The High Court did not accept that this constituted a “fresh decision”. Instead, it accepted the City Corporation’s argument that it was in the process of coming to a decision in future, based in part on the outcome of a public consultation. 

Lady Elisabeth Laing concluded that it is arguable that that aspect of the judge’s judgment is wrong on the basis that the decision we were challenging could be interpreted as the City Corporation’s “interim response to a relevant change in circumstances”.

Finally, she held that if the High Court was right that the claim was too late, because the decision to bring in self-ID had been made many years ago, the factors we relied on in our appeal “indicate that the Judge’s refusal to extend time for bringing the claim are also arguably wrong”. The factors we relied on were that there was good reason for the delay, because it had taken until 2025 for the Supreme Court to clarify the law, combined with the public interest and importance of the issues, and the strength of this claim.

All our arguments were vindicated on appeal. The substantive case about the lawfulness of the City Corporation’s policy will now be heard by the High Court.  

Merits

Our case has three grounds. We say that the City Corporation’s decisions were unlawful, because the arrangements inherently amount to and inevitably give rise to unlawful discrimination:

1. direct sex discrimination against individual women by denying them access to the Men’s Pond and against men by denying them access to the Ladies’ Pond
2. direct sex discrimination against individual women by providing a “women-only service” where they are exposed to the presence of men when they are in a state of partial or full nudity
3. indirect sex discrimination against women because the arrangements for running the ponds put women as a group at a particular disadvantage compared with men.

We say it would be lawful to operate the bathing ponds as separate-sex services but the City Corporation decided not to do so and instead expressly disavowed any reliance on the single-sex exceptions under the Equality Act.

The judge noted that the High Court did not engage with the merits of the grounds for judicial review except at the end of her judgment and did not ask, or answer, the question of whether they were arguable. She called the City Corporation’s engagement with the merits in its response to our appeal “brief and unpersuasive” and considered each of our claims arguable. 

We hope that the High Court will list a full hearing before the end of the court term in July.

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The case was turned down on procedural grounds that we, and our legal team, believe are wrong in law.

We didn’t get as far as being able to make substantive arguments on why the City of London’s policy of allowing men who identify as women into the women’s bathing pond and the meadow, changing room and showers is unlawful. 

The procedural points on which we lost are these:

1. The High Court said we did not have standing. It said a “more appropriate” claimant would be an individual woman facing discrimination and harassment at the ponds (and that an individual should bring a claim to the County Court). This is wrong in law – the test is not whether the claimant is the “most appropriate person” to bring a claim but whether they have a sufficient interest. Protecting single-sex services and sex-based rights is core to Sex Matters’ mandate as a charity. It is common for charities to bring such claims. 
2. The court also said that the case was out of time (because the City of London first set a self-ID policy in 2019) and premature (because it is now undergoing a consultation about adopting a new policy). We say this is wrong. The City of London did in fact change its policy in July 2025 following the Supreme Court judgment (from an earlier “gender-identity policy” that included “genderfluid, gender queer or non-binary” individuals to the present one allowing entry to  “trans women with the protected characteristic of gender reassignment”). It withdrew the old policy. Adopting this new, more recent policy and putting up signage was a decision which we say is in time for judicial review.

Our lawyers think that each of these points is challengeable and can be won. 

We say the City of London took an unlawful decision in July 2025 when it put up new signs following the Supreme Court judgment saying that: 

“The Ladies’ Pond is open to biological women and trans women with the protected characteristic of gender reassignment.”

This was a different policy from the one the City of London adopted in 2019, which was a “presumption of inclusivity” including “genderfluid, gender queer or non-binary” people. The City of London’s Committee took a decision in July 2025 about the way the ponds would operate following the Supreme Court judgment. 

Maya Forstater, CEO of Sex Matters, said:

“We have taken on the might of the City of London Corporation because we believe its approach is a clear example of an unlawful policy. Kenwood Ladies’ Pond is an iconic battleground for campaigners for women’s sex-based rights. Getting a judgment in this case would provide a template for other single-sex services, and show that service providers cannot get away with ignoring the law.” 

As part of bringing the case we collected statements from dozens of women who use the ponds, describing how the policy of allowing men into the ladies’ pond and associated changing facilities affected them. 

The City of London expects women and girls using open showers to share that space with men who identify as transgender women (or who say they do). Many women told us how humiliating and terrifying this is, and why they cannot bring their own cases.

The consultation that the City of London has undertaken offered several options that are not lawful. It was designed so that it could be “hijacked” and it was. It is not credible that over 30,000 people who all swim at the ponds, 60% of whom are LGB, answered the consultation. 

In any case the City of London must have a policy that follows the Equality Act.

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