Sex Matters - Hampstead Heath Ponds -

[SexRealismBeliefs]

Sex Matters, a charity that campaigns for single-sex rights, will argue that the City of London Corporation is breaching equality law by allowing trans women to use Kenwood Ladies’ Pond on Hampstead Heath.

Hearing this Wednesday.

https://www.thetimes.com/article/cceca8ca-4167-4b04-875a-40ddacfea782?shareToken=e9fe25a546d20835f1a5a66564cbf27b

This is two really difficult areas of law colliding, I think, Judicial Review and discrimination law. The latter tends to be two parties fighting it out, was or was not X discriminated against? but Judicial Review requires you to show that a decision reached by a public body was so reckless no reasonable public body would have made it. So before you even get to JR, the preminary hearing will look at whether the complainants have any standing in the matter, but also whether JR is the appropriate remedy. That looks tricky; CofL say they haven't made a decision yet, they are 'consulting'. They say also the policy SM are really complaining about was adopted in a decision made so long ago the action is being brought too late.

Sorry I was responding to a pp about GG and WI both seeming to misunderstands the law in the same weird way, but helpfully I didn't quote them 🤦‍♂️

I'm really holding my breath on this hearing today🤞

Yes, I'm not convinced, and I really want to be!

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 GI policy was withdrawn as MLF said 1st sentence of para 10 misstated the law.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 - 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 - 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

Regarding timing, the decision may be no, SM can’t get a judicial review as there is an ongoing consultation. However, is SM firing a warning shot across the bow of CoL to not “lose” any responses from this consultation and to ensure that the outcome complies with FWS?

Perhaps because MF is brining this and she is not an orthodox woman?

I was wondering why Sex Matters is seeking permission now but I can see a strategy

1. if they are given permission then the JR can go ahead
2. if they fail on standing they can find an individual or group of affected people to bring the case
3. if they fail on delay they can wait for the outcome of the consultation etc and go again if the CoL sets unacceptable policies based on that

You can’t continue to break the law by simply having a consultation about it.

I agree 100% but some organisations have to be dragged by their ankles to recognise the law as it is and not as they think it is. See also Girl Guides and the WI. CoL is behind the curve.

Sounds a very expensive strategy!

They seem to be arguing as with in the Peggie case that it's not discrimination unless a woman actually complains?

I thought the issue was that legally you can't allow just a subset of men + women, but now I'm doubting myself

Not really because the CoL will realise that they are going to end up in court if they don’t comply with the law at the end of the consultation. So this hearing may head off the need for further litigation anyway

This is in response to @Wackdemmoles

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 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?

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

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

It’s interesting as religion is what the Department of Education gave as the reason for NOT having unisex toilets in schools (2000) - then they went back on it.

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

DS - appropriate for CoL to take a decision, and if C unhappy bring a claim.
J - yes

DS - I'm reminded, at an early stage the CoL said it would await EHRC guidance. That process has run into the sand. CoL will now not wait for the guidance.

J - you can say that, on instructions

J - but stuff happens....
DS - yes of course, my instructions are that CoL will press on and not await guidance.
J - Mr Cross

TC - prematurity, he says C is trying to bind CoL hands. They are not. We are seeking to challenge an unlawful decision. If there are other arrangements

TC - it won't stop CoL using the Consultation results. If it is unlawful, it is unlawful. It is no defence to say we are consulting to unlawful conduct. I do not say the court should delay, I said it could expedite. It is not determined and we stand by the reasons.

TC - we do not accept that any T inc options would be lawful. It is not correct that the lawfulness would be determined on the facts, at the moment I have no case to answer as it isn't put forward by the R. In relation to Badmus, Sm is not affected by the decision till May

TC - if we are entitled to treat it as a new decision, the challenge cannot be brought before the decision. With regard to Out of Time, there is shifting evidence on the GI policy. In 18th July letter, shortly after 16th meeting, it explains that it refers to the GI policy, now

TC - withdrawn. The R has refused to release a single document about that withdrawal. The policy refers to a broad range of people. In relation to extension, you have a written argument. Standing and Alt remedy - it is telling DS took them together, there is no suitable

TC - remedy for the C. The qu is is there anything precluding my client being in this court? There are many many cases such as this on the EA through these courts. Eg Michaela school, a claim under EA, significant issues of fact, details of school building to do with prayer

TC - this isn't unusual in this court. In GLP para 21 the court said the particular interest of the claimant. We say we do have such a particular interest. GLP case was extreme, an individual appointments decision, also the broad interest of GLP which formed courts opinion

TC - it came later but as a holistic point, it needs to be considered. In MF statement we see advancing education on the law, and advancing sound administration of sex in the law. We submit it is a slippery slope to say Sm can fund cases but does not have standing.

TC - saying ground 1 and 2 are unarguable is a hopeful proposition. DS says reason for refusal is not sex, but gender, on the grounds that some men are not excluded from the women's pond. That is to misunderstand or engage with our analysis of claim. You look at it from POV of

Likewise, as the number of Jewish women in the local area is significant. Overall in the neighbouring London Borough (Barnet), one in seven people are Jewish.

TC - individual. Can we look at case

J - lady justice gloucester decided. DS - yes, girls and boys separated but no discrim as they were treated the same. The specification of direct discrim is about an individual. That's why it's helpful to analyse by indiv claimant

J - why does that make a diff? Say you take an indiv, MF isn't allowed in the men's pool because she identifies as a woman. Not sure why aljidra (?) helps?

TC - comparator. An individual who is not trans, is discriminated because of sex.

J - Say MF is trying to get into the mens pond the reason is not by reason of sex,

DS says, if she presented, ID'd as a man she could go in. So it's on gender.

TC - that's what he says, but he is wrong, what is the comparator. MF is female.

J - it's a man who isn't allowe din the womens pond? TC - we've swaped pond again

But wouldn’t Jewish women need to be amongst those bringing the case, or possibly intervene, in order for there to be any standing on this point?

One reason for this whole mess in the first place is courts only consider those in front of them and too often that hasn’t included women.