Sex Matters v City of London

Standing and Time Limits in Judicial Review

Sex Matters, a human rights charity campaigning on issues relating to sex-based rights, has been denied permission to judicially review the current arrangements for the open-air swimming ponds at Hampstead Heath. There are three ponds; a men’s pond, and a women’s pond and a mixed-sex pond. Since 2017 the policy on access to ponds had been based on self-identification, meaning that the women’s pond is open to biological women and any biological man who identified as a women. Similarly, the men’s pond is open to biological men and any biological woman who identifies as a man. Sex Matters sought permission to challenge the lawfulness of these policies.

The issue before the High Court at this stage of the case was not the lawfulness or the merits of the policy. It was whether Sex Matters could bring this case at all. Judicial review of the decisions of public bodies must be brought using a special procedure that is more limited than other kinds of legal claims. The reason for this is to protect public bodies from constantly having to go to court to defend their policies, spending vast sumps of public money. To protect public bodies, administrative law places two primary limitations on the ability to bring a legal challenge: time limits and standing.

Time Limits

The first major limitation on the ability to bring a judicial review is the short window within which a challenge can be brought. The normal time limit for brining a judicial review is no later than three months from the decision being challenged. There are some circumstances where an exception can be made to this rule, but it is unusual for one to be granted years after a decision has been made. It would therefore be very rare for a court in 2025 to grant permission to challenge decision made in 2017.

In this case, Sex Matters argued that the City of London Corporation made a new decision on 16 June 2025 to maintain the current arrangements pending a public consultation. If this was a new decision that was capable of being challenged as unlawful, then there would be three months from that date to bring a challenge.

The High Court did not accept that this constituted a fresh decision which is amenable to judicial review. Instead, it concluded that the Corporation is currently in the process of coming to a fresh decision, based in part on the outcome of a public consultation. It was therefore premature to bring the judicial review at this point. Once the Corporation comes to a fresh decision, a judicial review could be brought at that stage.

Standing

In addition to the requirement to bring a case in time, there is also a requirement that the person bringing the case have what is known as standing. To have standing in a judicial review case you must have a sufficient interest in the decision made. Ordinarily that means that a judicial review can only be brought by someone directly affected by the decision itself. There is some scope for public interest standing, where an organisation has standing because they have a general interest in the matter. Usually public interest standing is not granted when there are people with a more direct interest in the decision who could bring a claim, unless the claimant can show that they have sufficient interest in the decision.

In this case, the Corporation argued that Sex Matters does not have standing to being a claim because the argument advanced by Sex Matters is that the policy is unlawful on account of it being directly discriminatory. The Corporation argued that the correct venue for airing that challenge is not a judicial review in the High Court but a claim of direct discrimination in the provision of a public service brought by a user of the pond in the County Court.

The Hight Court agreed, noting that the centrality of a discrimination claim to the review sought heavily implies that the appropriate forum for resolving this dispute is a County Court with jurisdiction to hear the discrimination claim. Additionally, the appropriate claimant in a discrimination claim such as this would be someone claiming to have been discriminated against rather than a representative body such as Sex Matters.

Merits

Because the High Court concluded that Sex Matter did not have standing and that the case was premature, it did not consider it necessary to analyse the substantive merits of the challenge. There was therefore no finding that the policy in question was lawful and no finding that it was unlawful. The Corporation had indicated that it would seek specialist legal advice following the public consultation to ensure that its new policy would be compatible with the Supreme Court decision in For Women Scotland. Until that had been done and a decision made on a new policy, the Court did not consider it necessary to consider the matter further.

One point worth mentioning in passing here is that this approach of waiting for new legal advice following a public consultation is sufficient to ward off a judicial review in this case, but that should not be taken to mean that a similar approach is prudent for all cases. Should a discrimination claim be brought in relation to the policy, issues of standing and time limits will not apply in the same way. This case was decided with regards to the judicial review procedure, not the law relating to unlawful discrimination more generally. It should not therefore be seen as supportive of a general approach of waiting to change policies in the employment or public services contexts. Discrimination claims arising from these policies can be brought separately and are subject to less restrictive procedural constraints.