Sex Matters is seeking the right to plough on with its legal action against the City of London Corporation who run the the Highgate Men’s Pond, Mixed Pond, and Kenwood Ladies Pond on Hampstead Heath.
The charity last year launched a claim of sex discrimination following the Supreme Court decision that a person’s legal sex is the one biologically assigned at birth – arguing that the current rules treat an individual woman “less favourably” than an individual man.
But High Court Judge Mrs Justice Lieven threw out their challenge to CoL’s long-standing policy of allowing trans swimmers to use whichever pond suits their gender identification – saying a “more appropriate” claimant would be an individual woman facing discrimination and harassment at the ponds, and the “appropriate forum” for the claim was the county court.
Sex Matters, whose aim is to protect single-sex services and sex-based rights, believe Mrs Justice Lieven’s ruling is wrong in law.
It is now bidding to make its arguments on why it thinks CoL’s policy of allowing men who identify as women into the women’s bathing pond, meadow, changing room and showers is unlawful.
Maya Forstater, chief executive of Sex Matters, said: “We are taking 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.
“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.”
In written submissions in support of the appeal bid, Tom Cross KC, for Sex Matters, said that Mrs Justice Lieven was “plainly wrong” to refuse to allow the legal challenge to proceed.
The barrister continued that it was “contrary to the public interest, the rule of law, and the sound administration of justice” for the issues raised in the claim not to be considered at the High Court.
But a spokesperson for CoL said it would “strongly oppose” the appeal bid and will “continue to contest this case vigorously”.
They said: “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.
“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.”
CoL say the claim of sex discrimination is premature because they are in the process of consulting on their policy over trans swimmers.
A survey released in January found of more than 38,000 responses, 86 per cent backed the existing trans-inclusive access to the ponds and 90pc opposed introducing strict single sex access or requiring trans swimmers to use separate changing rooms.
A CoL spokesperson added: “Elected members of the relevant 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.”
