Judicial review: prematurity, standing and the correct forum

The High Court has refused permission to a judicial review challenge brought by the charity Sex Matters to the trans-inclusive policies operated by the City of London Corporation (the “Corporation”) at the Kenwood Ladies’ Pond and the Highgate Men’s Pond.[1]

As a permission decision, it is persuasive rather than binding precedent, but provides some valuable insights into how the courts could approach strategic challenges in this area – and generally from campaign groups – going forward.

It also suggests that organisations providing single- or separate-sex services should consider reviewing their approach now, rather than adopting a “wait and see” approach.

Sex Matters’ challenge

Since at least 2017, the Corporation has allowed trans women to swim in the Ladies Pond, and trans men in the Men’s Pond.

In April 2025, the Supreme Court held in For Women Scotland v the Scottish Ministers that, for the purposes of the Equality Act 2010, the terms “woman”, “man” and “sex” had to be given their “biological” meaning.

In July 2025, Sex Matters wrote to the Corporation arguing that its approach was – in light of the For Women Scotland decision – unlawful.

The Corporation explained that it planned to launch a public consultation, after which it would make a decision about the Ponds’ future. It launched that consultation in September 2025.

In December 2025, however, Sex Matters sought permission to bring judicial review proceedings challenging the Corporation’s approach. It claimed that requiring “biological” women to share the Ladies Pond (and associated changing facilities etc) with trans women constituted direct and indirect discrimination against them under the Equality Act 2010 (and that the Men’s Pond was similarly discriminating against “biological” men).

To be granted permission to progress to a full hearing, judicial review claimants have to clear three main procedural hurdles – namely:

• the claim must be brought at the appropriate time;
• there must be no “alternative remedy” available; and
• they must have “standing” to bring the claim.

Sex Matters fell at all three hurdles. On 29 January 2026, the High Court refused the claim permission.

The challenge was premature

Judicial review challenges must be brought promptly, and at most within three months of the decision complained of.

Sex Matters argued that the three month clock in this case was started by the Corporation’s decision, in July 2025, to maintain the status quo while it undertook a consultation. Alternatively, Sex Matters argued that the Corporation’s trans-inclusive policy was a continuing unlawful act which could be challenged at any time.

The Court noted that claimants “cannot in general start time running again by writing a letter asking the decision-maker to reconsider and then treating the refusal to reconsider as a new decision”. Where the decision-maker responds by conducting an internal review, it can (at the end of that process) be said to have made a new, challengeable decision. But a decision not to immediately reverse course does not re-start the clock – and, while a review is ongoing, a “continuing unlawful act” argument is also unlikely to succeed.

In this case, the Corporation was undertaking a review, starting with the consultation, which the Court held should be allowed to run its course. “If [the Corporation] then adopts an option which is alleged to be unlawful, potentially on one or more of the grounds pleaded here, then that will be the time to challenge.”

The challenge was accordingly deemed by the Court to be premature.

Sex Matters was the wrong claimant

The rules on standing in judicial review – which require claimants to have a “sufficient interest” in the subject matter of the claim – have been subject to scrutiny in recent years, particularly in public interest challenges brought by campaign groups. To have standing, such organisations usually need to demonstrate that they have particular expertise in the issue to which the claim relates.[2]  

In cases where a claimant is seeking to bring a claim not just in the general public interest, but on behalf of a particular category of affected individuals – as will invariably be the case in a discrimination challenge – the courts will be reluctant to find that a representative group has “surrogate” standing to bring the challenge, unless there are structural barriers to those individuals bringing a claim themselves (for example, if they are based outside the UK, or if they are children).

In this case, Sex Matters argued that they were an appropriate group to bring the challenge, on behalf of Pond users as a group and the public more broadly. They explained that they were better resourced, and less concerned about adverse publicity, than the individual Pond users who were supporting the challenge.

The Court disagreed, finding that the claim should have been brought by an individual: “There are individuals who argue they have been discriminated against by the Corporation’s decision and therefore could bring individual claims.” If there were “real and significant” concerns about anonymity, they could be addressed.

The High Court was the wrong forum

Judicial review is a remedy of last resort; the Court will not grant permission if an alternative legal route is available.

The proper forum for individual discrimination claims is the County Court (which is better placed than the Administrative Court to resolve complex disputes of fact). Since the claim should have been brought by an individual, the County Court represented an “alternative remedy” that precluded judicial review (even though Sex Matters itself, as an organisation, could not have pursued a County Court challenge).

What’s next for the Ponds?

The Corporation has now reported on the outcome of its consultation. An overwhelming majority – 86% – of respondents agreed that the Ponds should continue to be trans-inclusive spaces as currently operated.[3] The Corporation has not yet announced its future policy.

Whatever the decision, it is possible that an individual will challenge it in the County Court. If so, the consultation responses might be relevant to the defences available to the Corporation.

What are the wider implications?

The High Court’s decision has broader implications for campaign groups considering strategic challenges in this area. It is now clear that a discrimination claim against a service provider should usually be brought by an individual claimant, in the County Court. Campaigners might conclude that supporting such challenges is not the best way of advancing their strategic objectives, not least because County Court judgments do not set a binding precedent on other courts. It can also be hard to find individual claimants willing to put their heads above the parapet, as Sex Matters reports to have found.

For now, however, individual discrimination challenges arising from For Women Scotland – against service providers and against employers (in the Employment Tribunal) – continue to work their way through the system. The emerging judgments are beginning to offer an insight into how the lower courts are now interpreting the Equality Act, and the EHRC’s still-awaited Services Code is intended to illuminate things further.

It might, however, not be advisable to put policy decisions on hold indefinitely while awaiting more clarity.

Many charities and other civil society organisations have, following For Women Scotland, been asked (or decided) to review their policies on trans-inclusion and single-sex services. The High Court’s decision suggest that they will in general be able to undertake that process, without campaigners using the courts to hasten or influence the outcome – provided they progress it reasonably expeditiously. Given the desirability of providing certainty for service users and staff, and given the likelihood of the landscape remaining uncertain for some time yet, there will in many cases be a strong argument for taking a proactive approach to policy review.

Helen Fry is a Senior Associate and Suhan Rajkumar is a Partner at Bates Wells.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.

[1] Sex Matters -v- The Mayor and Commonalty and Citizens of the City of London

[2] E.g. R ((1) Good Law Project Limited (2) Runnymede Trust) v (1) The Prime Minister and (2) Secretary of State for Health and Social Care [2022] EWHC 298 (Admin)

[3] Consultation results published on Hampstead Heath bathing ponds