Sex Matters - Hampstead Heath Ponds -

DS - an indirect disc claim. If we say a woman sharing swimming facilities with men, we'd be saying every local authority pool which is mixed is discriminating. Fourthly even if direct disc, there is a defence under section(?). Under ground 3, it could be an indirect disc

DS - claim, it reframes ground 2 as an indrect claim. Ignores that there are completely private showering and changing facilities. And is the PCP a PMOAALA, is it unlawful? Brings us back to the review and consultation.

J -sorry, so justification is fact sensitive
DS - yes which is why the consultation

J - hang on with Ground 3, if I'm against you on prematurity, and I thought you had made a decision, given you need a knock out blow when talking about proportionality not sure you are there.

DS - C says there are no circ's the CoL can lawfully include T

DS - have to show its arguable, but it's also arguable that there is no justification. We are testing the C's point, is it an unnecessarily unlawful policy, if they can't prove it, that it is never justifiable to include it's unarguable.
J - ok
DS - if you are minded to grant

DS - we submit obvious order would be to stay to JR till we have reached a decision. It would be wrong to delay and interfere, when it is possible C will be happy with the outcome. It would be wrong to ... it's not some kind of test case. Facts are unique. Fact sensitive and nuance

J - as a hypothetical I'm not saying it. Not making a decision doesn't make it unarguable.

DS - on Ground 1, C says an indiv woman without PC of GR is subject to direct Disc if not allowed to use mens pond. We say unarguable as both men and women are admitted to both men and women

DS - ponds, they aren't excluded because of sex, but of gender. Esop and Home office case backs that proposition. The PC has to be the reason for the treatment. J - you are saying men aren't excluded from womens pond on grounds of sex, but of their gender. DS - because

J - their gender identity?

DS - yes. So at least some bio women in the mens and vice versa. Claimant cites Col (?) not every woman needs to be disc against for it to be direct discrim

J - on prisons? DS - detention centres. When you look at Hale - can we look at it. She ref's to Birmingham city coucil

DS - case, girls grammar school case. What she says is all the women who would be required to live in an AP would be discriminated against due to distance related to lack of facilities J - it's the policy or the output DS - this isn't on all fours with Col. This fails as can't

DS - be shown to be on the relevant characteristic. It's far from clear on less favourable treatment for women. Where she has access to the mixed and women's ponds J - still ground 1 DS - yes, hard to argue less favourable treatment. On Ground 2, it's not a dir disc claim at all

DS - no. Likely to be detailed facts in this case. Reason for impugned treatment? Sex? Might be submitted it's Lived Gender. It's a question of facts, that needs examining. Is a group disadvataged?
J - even if relevant to proportionality, seems unlikely to be assisted by

J - cross examination. Type of thing the administrative court does ..
DS - I'd put it that it's relevant if a transwoman
J - I think it's possible to look at whether the pond manager, you were saying the impugned detriment, that's not something that
DS - it is undoubtedly a question of fact, was the reason for exclusion for sex or gender.
J - many people have different views, difficult territory leave it there
DS - may be issues around encounters etc but there are controversial issues in MF's statement around safety of women around TW need

J - you say it needs testing, we do this all the time, say prison policy we are always looking at counter evidence. I don't think it's your best point
DS - is there any record of police being called etc would need looking at. SM say "The factual evidence in this case can't be

DS - sensibly disputed" we say hyperbolic and manifestly justified. A C so blinded by their own view they can't see clearly and rise...
J - lets reduce the heat, don't rise to the rising
DS - C is assuming facts in it's own favour. We say nuanced and complex, better dealt with

DS - in county court. Finally to Grounds: If look at the substance of this challenge, actual decision was to just review and hold consultation. No new decision. C seeks to ensure T inclusive arrangements are taken off the table before review and consultation.

DS - not a good use of Court time and resources esp in advance of the review and consultation result. Also need to consider if the outcome meets PMAALA (proportionate means of achieving a legitimate aim).

DS - where person who share a PC, or PC has different needs, or access is diff it's discrim, where PMAALA can treat differently. It's entirely possible that TP who are one of more marginal groups
J - I think, say I was against you on everything up to this point
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J - I thought you'd gone through a process and decided to keep it open to all who ID as women, just assume I'm against you up to that point - not that the C would win - but would you accept the grounds were arguable in that circumstance?
DS - no, just to finish section 158 point

DS - if properly deployed, could justify trans inclusion
J - yes
DS -
J - sorry was just saying I can see the point not agreeing
DS - depends on the outcome of consultation has to be PMAALA, you have to look at the facts to know that. and the facts are in the consultation

DS - will need the balancing the needs of all users of ponds.
J - say you don't decide because EHRC don't bring out guidance, could go on for years, then JR'd. Come to my hypothetical. You decide to keep it the same, in a years time, still there, you can't keep saying forever

J - can't just keep pushing it down the line. I can see prematurity, but not on this ground.
DS - CoL aren't waiting for EHRC, it has completed the consultation, can't be suggested R is kicking the can
J - sorry say I'm against you, say I think you've made a long interim decision

DS - the test isn't why not, but that they could have. There clearly are better claimants. Standing is related to suitable alt remedy, JR's will not be used where there are other remedies. SM can't bring it as it hasn't been disc against. They say they are representing

DS - those who have. There relevant qu is whether those witnesses could have brought a case. To pond users as a class, that is controversial, by no means clear how wide the group being repp'd by SM is, many will think they aren't. TP, men and women supporting T inclusion

DS - SM can't claim to stand in the shoes of the 38k consultation respondants

J - any case law on an NGO representing a class and the extent to which they do, thinking MM. Thinking Child Poverty Action Group, very clear surely?

DS - not this ca

J - no just thinking is there any?

Sorry juggling a few things

DS - needed for girls to get in because there were fewer places.
J - what if there is a good reason for individuals not bringingcase, questions of identification etc
DS - yes, may or may not be goo dreasons. reads from discrim
J - you can argue that you AND the whole group

J - were disadvantaged. So an Alzheimers charity might bring a case on behalf of themselves and all people with Az
DS - saying this lends itself to an individual claim, no more than that. Administrative court is less appropriate than Employment or County courts are moreso.

DS - as more able to hear detailed evidence. We say therefore SM doesn't have standing. It's discrimination. Say that indiv men and women have been subject to discrimination, it is obvious that is the better person.
J - on all grounds?
DS - yes, all are indir or dir claims

DS - witness TBS, anonymous as she doesn't want to be ID'd
J - Mr C said at hthe end of each
DS - yes, second Josephine Graham, para 13 says man sunbathing behind me, went elsewhere to look, def a man physique, big hands etc. She didn't want to bring as sick. THat's her position

DS - Izzie Ishmael, says because she's on (???) of course SM could have paid for her to being her case to the CC. M Furman said says one day in 2021 walked towards ladies pond, heard a man's voice, saw a man changing told staff they said he's a T woman. Said financially prohibitive

DS - the CC judge has to decide if there is good reason to have assessors to determine the sensitive nature of sex discrimination. Also time is 6 months, more generous than JR timeframe. The CC can decide same findings as another court for this. So Standing and even if do, is there adequate..

J - C's simple point is that C can't bring a case in CC, assuming that's right and you agree

DS - yes, C's rights haven't been breeched it is unattractive, but can't go to CC. Bringing for the public. But the individual witnesses can. We do rely on GLP and Runnymede case for group claim. For an identifiable group was the test relied on. Looking at GLP (good law project) in relation to indirect disc..

J - I've read it

DS - found not to be standing for indirect disc claim. Not all members of group impacted, some people were

DS - exactly the same here

J - must be a spectrum, must be v rare to find a group where all are impacted. In GLP it was a small limited group. Here it's different.
DS - we say small, women who use the pond

J -- or want to
DS - or want to. Those women who do, or want to who

DS - object to TW being present, it's no wider than that. And question of standing, indirect discrim means have to show damage to an individual and those

J - I could be missing point, don't understand reason, EOC case was indirect disc

TC - direct
all agree
DS - higher mark

DS - with a responsible public body. Wasn't an active review in case (Colymore) cited. J - about grants? yes DS - it's distinguishable as the policy wasn't being actively reviewed at time of challenge. So for all those reasons court shouldn't extend.

DS - Next Standing and alternative remedy. Jurisdiction of equal pay act J - do you mean that? DS - sorry EA, equal pay act no more, all in EA J - showing your age DS - yes. Breech under section 29 of EA (finding refs) DS - reads fast from EA this is squarely a section 29 case

DS - part 9 deals with enforcement of Sec 29 claims. doesn't prevent claim for JR and later see county court or sheriff as prima facie place. Must be unless judge decides there are good reasons otherwise J - so that's the test, I have to decide there's a good reason?

DS - external resources to speed up the processes, these are complex and difficult issues, not true CoL is dragging feet, CoL diligent and responsible. That's all on facts. Now to Grounds for refusal.

DS - prematurity. cutting across consultation and contrary to good decision

DS - making. MLF gets it the wrong way round, saying decision should benefit from court judgement and not the consultation. We say inappropriate to insert court, to micromanage or guide the decision. This process will delay not speed up.

J - not a bright line, court could significantly assist the decision?

DS - one can see there might be, but here all sorts of questions of proportionality and consultation, even on claimants case CoL needs to consider the outcome meets proportionate to achieve a legitimate aim.

DS - 2. Limitation. Current arrangements since 2017, predate the GI policy. GI policy was withdrawn as MLF said 1st sentence of para 10 misstated the law. Ordinary position claim must be within 3 months. It's said FWS changed the position and therefore shouldn't apply.

DS - FWS said nothing about TP without GRC.

J - FWS was about people with GRC, but aspects of your GI policy isn't limited to GRC holders. To say it had nothing to do with those without a GRC is a little hard. There are consequences for those without. Dial it down a little.

DS - SC couldn't have made it clearer they weren't looking at wider issues, or cutting back TP's rights. the Final point I'd make on FWS is C didn't bring it within 3 months of that either. If FWS made it clear, they should have done it and they did not.

DS - to the Badmus (sp?) case, strongly supports our position on limitation. Case was on rates paid to detainees, JR brought on decision to keep position the same. Jan '16 report, 30th April 2018 commissioned a pay review - one of the options was to keep it the same.

DS - that's what was selected and that was the decision under challenge. Just as in this case if CoL keeps same sitn in place can be

J - it was a fresh decision to keep it the same

DS - careful review, fresh decision. Court of Appeal said correct principle is when a person is

DS - first effected by the decision is the start. In our facts the admission arrangements have been in place since 2017. Any person affected has been so for years. Now seeing historic complaints being raised in these proceedings. And there's no new decision starting the clock

DS - next the Extension of Time requested (ET), should be refused on Maharaj/Trinidad case grounds. all read
DS - apply in this case, no reason for delay, don't accept FWS is and they weren't in time

J - um ok

DS - EHRC guidance delays not a good reason, not the law

J - statutory code, so has weight

DS - and open to challenge and is. Also no reason to extend, it's being considered, any victim has recourse to county court. Public interest isn't a reason, decision in weeks or months. A late claim constitutes unwarranted interference

DS - CoL asks on grounds of delay, Mr Justice Chamberlain says fast reading re another case where a decision is under review and it's uncertain of outcome and might be in favour of C shouldn't proceed.

J - if you had an interim decision, which had legal consequences

J - there's no rule to say it couldn't be JR'd DS - not this case

J - i understand but there's no bright line

DS - Consult closed 25th Nov, >38000 responses, results 13th Jan 2026, all set out. On any view a major consultation, CoL has used considerable resources

The Judge is Mrs Justice Lieven
Appearing for Sex Matters:
TC = Tom Cross KC
SS = Sarah Steinhart, supporting TC
SR = Sasha Rozansky, solicitor for SM

For CoL:
DS (DL in am proceedings) Daniel Stilitz KC
KE = Katherine Eddy, supporting DL

Others will be apparent but also:
HP - Hampstead Ponds
PCP - policy, criteria or practice
Cons - consultation
M - men
W - women
TP - transpeople
SSS - single sex services
M/F - male / female
EA - The Equality Act

We resume

DS - prelinary points on way case brought. in effect C seeking pre-emptive relief from court inappropriately in response to fact sensitive case. Alternative would have been to accede, a new policy ahead of cons, but would surely have had a JR on bringing in DS policy wihtout cons

J - if only one option

DS - yes, if only one option.

J - must be at least 2, complete mix, or complete segregation.

DS - yes. at least 2. unlawful to bring in prior to cons, or other alternative to status quo is close the ponds. I submit, can't be right

DS - prior to cons, we be compelled to close

J - not the case

DS - on background, say misleading and incomplete info on changing facilities. CR have small gaps on doors, plus a curtained shower area...

J - don't think this is going to help

DS - not disputed, but thirdly a lockable cubicle if needed. Next point. Whether a new decision was taken. You've seen formal resolution, in terms to continue current arrangement, pending consultation result. So plainly a continuation, no new decision, just carrying on. C has no new decision unless

DS - relying on sign. Ironic if relied on as only put up because C asked that it be put up. Complaint that men maybe present at any time, in SM letter, complain sign not clear enough and then allowing men, inc T ID'd men, in is unwanted conduct according to sex.

DS - by not having signs, you are harassing users. So we put them up. Not a new and different decision, just allaying SM complaint. Unappealing to use that to say we changed our policy. On when decision was made, as bg provisional decisions made, before final in Feb 2019

Also

TC: Turning to "standing". It's a Q of "sufficient interest". Miss Forstater's statement addresses a lot of this. SM is a specific campaiging org. It's not like Good Law Project that does all kinds of different things.

TC: It produces a lot of research in this area. Recognised by organs of state as a valuable contributor in the area. Given permission in Supreme Court to intervene - they would not have allowed "just a busybody" to do that.