Sex Matters v City of London Round Two

The legal fight over trans inclusion at Hampstead Heath goes ahead

The Court of Appeal had today ordered the remittance of a judicial review brought by Sex Matters against the trans inclusion policies of the City of London as they relate to the operation of the women’s pond at Hampstead Heath.

In January, the High Court denied Sex Matters permission to bring the review, citing time limits and standing issues. I wrote about the initial decision at the time and will replicate some of that summary here in order to contextualise the reasoning of the Court of Appeal.

Before that, however, it is worth noting that there is an important distinction between a judicial review and other claims brought in private law. In claims brought for breach of contract or negligence etc., the claimant asserts a right to a remedy for a legal wrong done to them. In judicial review, this is not the case. Claims brought in judicial review seek to challenge the lawfulness of administrative decision-making, not to enforce a right of the claimant. The difference between these two kinds of claim give rise to important differences between the approach that courts take to their adjudication.

Importantly, the judicial review procedure is protective of the government. There are stricter time limits to bring claims and there is a more onerous requirement that the claimant has standing to sue. These are designed to ensure that public bodies can get on with the business of government without being concerned that decisions made years prior will be challenged or that public money and time will be spent responding in court to every busy-bodies who comes along, regardless of whether they are affected by the decision. These restrictions are necessary to ensure that public bodies can act effectively in the public interest, even as they are balanced against the need to ensure that administrative decision-making operates in accordance with law.

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.

In the Court of Appeal, Lady Justice Laing concluded that it is arguable that the High Court was wrong on this point, ‘not least because the Decisions were arguably the Defendant’s interim response to a relevant change in circumstances, that is, the decision in For Women Scotland’. Because this point was arguable, the case should not have been thrown out at the permission stage on that basis.

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 bring 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.

In the Court of Appeal, Lady Justice Laing concluded that it was arguable that this aspect of the judgment was wrong because the Equality Act 2010 contains provision at s.113(3) for applications for judicial review. Given that, it was wrong for the High Court to presume that the Equality Act exclusively envisaged claims by individuals in county court for discrimination in the provision of public services. Laing LJ also concluded that there are many cases where expert charities do have standing to bring claims for judicial review, even where individual can also do so. Again, because these claims were arguable, it was wrong of the Hight Court to throw the case out at the permission stage.

It is useful to compare the different approaches to standing for charities such as Sex Matters and organisations such as the Good Law Project. In a previous case, Good Law Project v Prime Minister [2022] EWHC 298 (Admin), it was held that there is an important difference between NGO’s and charities bringing judicial reviews “in their field of interest” where they are representative of an identifiable group and organisations such as the Good Law Project. The Good Law Project is a private company registered with defined objects relating to general public law principles such as democracy, good administration, access to justice and the promotion of equality. These objects place GLP as effectively the corporate equivalent of a member of the public with an interest in public law issues. That is simply not enough to establish a sufficient interest to have standing in most public law cases.

In contrast, Sex Matters is a charity with specific charitable aims directed towards the protection of sex-based rights. It is an expert charity with a narrow focus on the particular interests of an identifiable group. Laing LJ noted that there are many authorities establishing that expert charities such as Sex Matters do have standing to bring claims for judicial review. The error that the High Court made, in my view, was in presuming that Sex Matters was in a similar situation as the Good Law Project.

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.

In the Court of Appeal, Laing LJ noted that the judge in the High Court ‘did not engage with the merits of the ground for justice review except at the end of her judgment’. Even here, the High Court implied only that the substantive arguments from Sex Matters were not so obvious or overwhelming as to outweigh the conclusion that the case was premature. There was no consideration of whether the arguments were themselves arguable, which is an important consideration when determining whether to grant permission to bring a case in full. In the Court of Appeal, Laing LJ noted that the arguments on the merits advanced by the City of London were ‘brief and unpersuasive’.

For these reasons, the Court of Appeal concluded that it was wrong of the High Court to thrown this case out at a preliminary stage. Laing LJ therefore ordered that the substantive judicial review should be remitted to the Administrative Court for a full hearing.