Thread by @tribunaltweets

Good morning. Today we shall be tweeting from the Application for Permission to Judicial Review being brought by Sex Matters against the City Of London Corporation about their policy governing admission to the Hampstead Ponds open-air swimming areas, changing rooms and showers.

TC: And of course ability to "pass" - language can be contested - varies with how much of one's body is exposed. And this is a swimming area - little clothing.

TC: My argument is, there is DD against women who are not provided with the facilities known as the Mens Pond - not just the pond itself - and DD against men, who are not provided with the Women's Pond facilities.

J: "Access to" basically
TC: Indeed, but was using language of the Act
J: S29?
TC: Yes

TC: So if we take the case of the Men's Pond. A biological woman who does not trans-identify - does not have PC or GR - is not allowed to be provided with the men's pond facilities. But a biological man (also without GR) is provided.

TC: the fact that neither trans-identifies is a material fact in whether they are similarly situated.

J: I must take this slowly. There is a women's pond and a men's pond and I understand that simple case. But I got lost in the skeletons. What is the comparator.

J: So. Men's pond; woman not allowed access; that's the comparator.

TC: This was my point. It does not matter that there are some women, women who trans-identify, who *do* get to use the men's pond. It doesn't matter, for DD, if there are *some* people that do not suffer the discrimination. It only matters that the individual does.

J: But the situation has been there since forever. Until the signs went up. Nothing to do with FWS.
TC: But only because the R should have been relying on one or other Sch3 exceptions.

TC: And since FWS, that reliance has to be on biological sex.
J: So the obvious answer is to make all the ponds mixed sex. Gets round that.
TC: [ref] this is from R website - it's about the SC ruling.

TC: If you go to 442 - this lists the options they are consulting on. The last, option 6, is what you are I think referring to? They say, CoL does not favour that option.
J: Your side would not favour either?
DL: It says it's included in case there's support for it.

J: Am trying to ask, your side would very much not want that option? Strongly opposed?
TC: I would need to take instruction [pause while he does so]
TC: They oppose in the circs where there is a mixed sex pond already -
[is interrupted for further instructions]

DL: If I can just -
J: No, because Mr Cross can't concentrate on you at the same time

J: If you want to come back to us on this later?
TC: We would like to point out that the facility as currently configured would not suit being a mixed pond - my client would need to know what was proposed.

TC: Also, EHRC has pointed out that in some circumstances having *only* mixed sex facilities can of itself disadvantage women as a group. It doesn't follow that a mixed sex pond is necessarily lawful, even tho yes it gets round the *direct* discrimination point.

TC: The grounds of resistance make a point against me on ground 1 - [gives bundle ref] para 50 - appears to say that the analysis of the comparator is wrong, the woman seeking access would be to her own detriment later in the argument -

J: It is surely correct in fact? There is no evidence that Miss Forstater *wants* access to the men's pond?
TC: MF no, but there *is* evidence some women do because the facilities are different. [gives ref]
J: OK point taken. The diving board.

TC: What my grounds do have in common is that I focus on discrimination against women. Our ground 2 is that the admissions rules to the ladies and men's pond put an individual woman at greater risk of compromise to her privacy and dignity than a man would.

TC: Our analogy here is case of Coll - tab 11 in bundle - decided that arrangements -
J: this is about prisons?
TC: Arrangements for approved premises.
J: Oh I remember - because not many women's prisons.

TC: So this was direct discrimination - greater risk of the detriment of being far from home than men. And tho not *all* did, bcs some were close to home, it was still DD. Paras 26 and 31.

TC: So the analogy is, if we apply that to the way the men's and ladies' ponds are, women are at greater risk of compromise to dignity than men are. The factual matrix of this case includes that the facilities are *designed* to be single sex.

J: Looking at Coll p31. That is not analagous here? The detriment here is much more subjective. Here you are relying on individual view, subjective perception. Where is the line? The facts are so different.

TC: The kernel of the principle is the greater risk of detriment. Not all individual women will suffer it - I accept your point - but the proper application of the principle is that the *risk* is greater.
J: Is greater risk sufficient for DD? Is there a case?
TC: Not that I know of.

TC: The witness evidence sets out this - I won't take you through it all in detail.

TC: R does not deny the evidence before the court of the experience of women (and remember we are asking permission here) in facilities which are not designed to be mixed.

TC: R also does not deny that individual women are more at risk of detriment than individual men. They argue that not *all* women would - and we agree, but say that's irrelevant, as Lady Hale explains in Coll.

TC: R says in skeleton that we have not attempted to articulate comparator. But we did, in our skeleton; it is a man in in the men's pond exposed to women who trans-identify. They do not mention Sch3 or p158.

TC: My ground 3 is re indirect discrimination - against women *as a group* not individual cases. Our submission is that the rules put women at a group advantage. The same disadvantage as ground 2, but at group level.

J: Again how do I grapple with fact that other women may not feel at disadvantage, do I need to know how many?

TC: It's not in dispute that not all women need to feel it, and for authority if you look at our facts and grounds para58-59 - case is Homer.
[Judge reads]

J: Is Homer in the bundle?
TC: It isn't, no
J: Will look at it over lunch

TC: Must note not included because our argument isn't disputed by R, they instead use objection that there *is* an enclosed room in the block. But that does not address my point.

TC: And again I remind that this is permission level - I only have to prove case is arguable. We have provided evidence from many women about their experience of members of the opposite sex being at the Ladies Pond or a comparable place.

TC: So I am arguing for "could suffer group disadvantage" at this stage
J: Yup.

TC: R puts an out of time argument, but this misses what we are challenging. It is not the Gender Identity Policy of 2019, it is the decision in July 2025 and we claimed in time, in the August.

TC: In July 2025 the R looked afresh at their rules, and chose one course as opposed to another. This was not even a reconsideration-on-request, but even if it were it would still count as a separate challengeable decision [gives case ref]

TC: R relies on Badmass {?] but we say not relevant - that was re application of secondary legislation to an individual claimant, and decided that time begins when the person is affected, not when the legislation was passed.

TC: This case is not about the person-specific category there.
J: If we try to apply the principle in Badmass - in what sense is anyone impacted differently before and after the new signage?

TC: I can only submit that they are entitled to point to the combination of the formal nature of the decision made, and the fact that the arrangements are in fact different.

TC: Badmass does help us at para 60 about when the grounds first arose, that it is necessary to decide what is at issue - the 2018 order in that case, there had been a review decision and no change made. But at 61 court rejects the fact of "no change" there was no decision made.

TC: "No change" was a challengeable decision in its own right. I submit that that supports us. So, claim is not out of time.

TC: But further on time - we could be challenging a continuing state of affairs. So the Birmingham Grammar Schools - that was a continuing illegaility
J: Yes - very famous case.
TC: [gives refs]

TC: And if that's wrong, and I need an extension of time - my skeleton addresses this. Firstly if the rules are unlawful it would not advance the rule of law to prevent them being challenged.

TC: We've cited Collimore, tab 4, local authority policy on education grants. Section here about argument over delay - the judge agrees it's out of time, but J goes on to cite Hilditch on allowing anyway.

TC: there's also the issue that *understanding* of the law has substantially changed -
J: We don't need to discuss this, I'm happy with it - am a bit concerned about time.

TC: On prematurity, while consultation going on. [ref to a case] NICE guidance - if you would read para 1 and 2 of the ruling - the challenge was, insufficient information for the consultation.

TC: NICE argued that challenge should have been brought [too fast]
J: More concerned to find the Arriva case? Not in bundle?
TC: That's because R is not relying on it.

TC: back to NICE case. Addresses that cd have been considered premature. But here, we are not seeking to address an unknown outcome, we're challenging a concluded decision. Any future decisions they may make are not relevant here.

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.

TC: It's argued that they could go to County Court instead. That's not relevant to standing. There is no *obvious* other place. For example some witnesses point out they could not claim in their own name. There is no obviously better place.
J: Why not in own name?

TC: A variety of reasons. What one sees in each statement is the explanation why.

J: But you accept that some individuals could bring their own individual claims, and bring in wider experiences that way, in a different forum?

TC: Indeed, but my point is they can also bring a JR. It is a neutral point.

TC: Second point is that [missed] see Runnymede. p468. Para 28. "No hard edged test".
J: In light of extensive reliance on Professor Craig's book - have been trying to get hold of new edition
TC: Re different types of standing?
J: Yes indeed.

J: Will try to locate it to read over lunch. But, yes, "no hard edged test" carry on.

TC: So the point is that someone not a rights-holder in person can still bring JR if someone else's rights are in question, we have cited 4 cases -
J: This first one is very long time ago, and first tier, and very different facts.

TC: Indeed. But there is the Birmingham EOC case - parents -
J: Are there any cases *after* the GLP one where judges have applied it?

TC: No. But what I do say is that the Runnymede reasoning can be transposed to the current case. Paras 1-5 -
J: I read this case yesterday, yes they are very different facts.

TC: Yes they are, I agree, the key factual elements here lead to para 31 and 32. Notes that not all members of the public equally affected, versus, the effect on actual individuals. That was the basis on which that court decided.

TC: In our case, this is a 'general public affected' -
J: I understand that, but what do you mean exactly - women who swim at the ponds, or, women who have the same concerns as Miss Forstater?
TC: And women who might wish to.

J: But there is the "share Miss F's concerns" element too. What about women who don't share MF's concerns? Are they affected?
TC: They are, by being kept out of the men's pond.

TC: And back to Runnymede para34 - we should exercise care considering these remarks on standing. There is nothing that indicates that those claimants have standing - but that does not apply to a different case like this. In Runnymede there were better-placed challengers; not the case here.

TC: It's 12.31 but am nearly done -
J: Yes carry on
TC: This is about alternative remedy for the claimant. SM has no county court claim as we've already discussed.
J: Isn't that rather a point against you? That the statutory scheme is that *individuals* bring claims?

J: There is no doubt such a claim does not *have* to be brought by an NGO - this is not a situation where the barriers to individual claimant are enormous. County Court better?

TC: The judicial scheme expressly reserves Judicial Review for persons other than the victim [gives refs to EA2010 and also a case ref I think] EA 'does not prevent' a claim for JR.

TC: The Roma Rights case we've discussed pre-dated this section so they had to go to County Court.

TC: [case ref, missed] para 41 - general principle well established that where there is alternative available *to the claimant* JR won't normally be allowed - not the case here.

TC: There is a case "Watchtower Bible" [gives ref] para 19 on general principles of other means of redress are available to the party -
J: I don't see "to the party"?
TC: [ref to where this is said]

TC: This is not a case about an individual person's right, it's about pond users as a whole.
J I think the R would strongly challenge that your client represents pond users as a class.

TC: That is not quite the point I am making - if we look at [case ref], this is actually one of yours my lady -
J So it was!
TC: Relevance for us is not whether arguable, it's whether there was alternative remedy.

TC: The argument was that there was failure to make reasonable adjustments in the process, which is obviously fact-dependent. Judge points out unusual nature of the claim.

TC: There was an argument that County Court cd have been used instead of Judicial Review. At para57-58 the J rejects that argument. Because county court not useful to the *class* of persons affected.

J: This was a very different case; the facts are different, the situation different. I don't think is very useful either way.
TC: This is an area of law where no two cases are ever really analagous.

TC: in the grounds of resistance there are detailed points about why this kind of case - not this one, because it can't be, but that kind of case - better heard in County Court. But we say these points are wrong.

TC: This is not a case in which for the reason for the treatment, the "reason why" in DD terms, need looking at the mind of the discriminator. This is a case of inherent discrimination in the rules. You see that in the signage.

TC: R says you need to look at extent of disadvantage, when it comes to ID. This misses the point - any level of *individual* disadvantage is not relevant. What is to be considered is the PCP.

TC: The point about comparators is a poor one - we *have* identified the comparator, and there is no extensive fact finding to be done.

TC: And the final point [missed] The fact that they don't advance a proportionality claim cannot assist them.

TC: The point about possibility of a statutory assessor is a neutral one. And we do not accept their point that witness evidence will need cross-examination. They identify no basis for that. And even if there were, it would be no barrier to a JR hearing being possible.

TC: Those are my submissions.

DL: We submit, this application completely jumps the gun. The admission arrangements are under review, 38,000 people contributed to consultation, results due in a month or so, all CoL have done is keep existing arrangements meanwhile.

DL: Attempt to insert court into that appropriate process is unhelpful and premature and the wrong way round of doing things.

We say 5 reasons to reject.
1, Premature
2. out of time
3. SM is a busybody and has no standing
4. Obviously alternate remedy in County Court
5. In any case no arguable grounds of challenge.

DL: You will appreciate that CoL have kept their powder dry on the legal questions so as not to pre-judge the consultation outcome. CoL will have to consider responses, take advice, then take decision.

DL: Consideration of legal Qs is for *after* the results of the consultation known. Highly fact sensitive. So TC saying that we have not advanced proporitionality argument is not fair - CoL is still considering.

DL: Claim is that CoL *must* operate admission by biological sex and there's no other way.
J: Only in ground 1 I think? I know various possibilities touted eg different hours, and so different questions would arise?

DL: Yes indeed, but SM do not take that into account. Their position is stark and extreme. In their claim they set out in Letter Before Action that they want policy withdrawn and that CoL will operate the Ladies Pond as female-only.

DL: You asked whether MF would be happy if all the ponds are mixed sex, answer was "configuration", but, MF could simply have responded to the consultation and said that. Underlines how premature this application is.

DL: SM put this matter in extreme terms, if we look at Sched 3. Para 26. SM say, you can only have segregated ponds if separated by biological sex and that's the only way.

J: I don't think they say that. I think they say that you could have three mixed ponds, perhaps with different facilities

DL: So they agree that there are options, hence the consultation. Because if you look at S26 it says, single sex is lawful. So the Letter Before Claim requires the CoL to determine whether having sex-segregated ponds is a proportionate means to a legitimate aim.

DL: That is the precise sort of Q that the CoL is considering alongside the consultation exercise. I submit that SM real position is one that they can't propose without engaging with the detail and the facts.

J: So you say, if the decision is that there should a strictly female pond plus a strictly male one, tehre would have to be a justification exercise?

DL: Yes indeed, particularly on the effects on people with the PC of GR. Which TC did not mention at all. But CoL would have to work though on the rights of trans people to do that.

J: Am conscious of the time - we should probably stop for lunch - Mr Stilitz I will at some point have to decide on the question of prematurity [missed]

J: Uusally prematurity arises when the challenge is to the *forthcoming* decision. But TC says no, that is not what is being challenged. You are pleading both delay and prematurity?

DL: Yes, but on independent grounds. Delay because policy has been in place for years, prematurity because the consultation is under way. It's not really a challenge to the signage, it's trying to pre-empt the decision that's to be made.

J: Thank you. OK we will break for lunch, and resume at 2 pm.

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