Charity Sex Matters, a campaign group advocating for single-sex rights, is taking legal action against the City of London Corporation, which is responsible for the Heath and operates the men’s, ladies’ and mixed bathing ponds.
It is seeking permission to challenge the City’s policy of allowing transgender women access to the ladies’ pond and trans men access to the men’s pond, on the basis that it amounts to sex discrimination.
Sex Matters is seeking permission to challenge this, on the basis that it amounts to sex discrimination.
The challenge comes following the Supreme Court ruling in April that a person’s legal sex is the one they were biologically assigned at birth. It means that these trans people can be excluded from single-sex spaces, such as women’s refuges and changing rooms, if it is a proportionate means of achieving a legitimate aim, such as ensuring safety and privacy.
The City of London is opposing the claim.
Tom Cross KC, for Sex Matters, said in written submissions for a hearing on Wednesday: “The admission rules treat individual women less favourably than men because an individual woman is at greater risk of suffering the detriment of her privacy, dignity or safety being compromised than is an individual man.”
He said the City of London has been allowing people who identify as trans, which includes people who are “genderfluid, gender queer or non-binary”, to use the single-sex facilities since 2019.
But Mr Cross said the City should change its policy in the wake of the Supreme Court ruling, which he said had “made clear that such an approach to single-sex service-provision is based on a misunderstanding of the law”.
The barrister continued: “But in spite of this, the defendant has resolved not to change the rules to ensure that the provision of these ostensible single-sex services is based on biological sex, as the Supreme Court explained that Parliament intended such facilities to be.”
Mr Cross also said that the policy was taken offline and that signs at the ponds were changed in July.
He said: “The fact that they have withdrawn the policy supports the substance that there is a change in terms of eligibility of access to the ponds post-16 July, or post-the signage.”
The City of London ran a consultation on its trans access policy that ended in November and Mr Cross said a decision is expected in March next year.
In asking the court to allow the legal challenge to continue, he said the City of London would “benefit from the court’s determination in making its further decision”.
Daniel Stilitz KC, for the City of London, said the legal action should not continue while the consultation is still ongoing.
He told the court: “This application completely jumps the gun in circumstances where the admission arrangements for the ponds are currently under active review, where 38,000 people have contributed to that exercise, where the report on the results of that consultation are due in less than a month and where all the Corporation of London has done is maintain the status quo for a brief period before it can properly and thoroughly reconsider the admission arrangements.”
The barrister added that the claim is out of time because the current policy has been “in place unchanged since 2017” and described the legal action as “unhelpful, premature and the wrong way for doing these things”.
Mr Stilitz also said that Sex Matters, which he described as a “busybody” that should not be allowed to bring the claim, has “steamed in” ahead of the consultation’s conclusion, while an alternative legal course would be through the county courts.
He added: “We have heard nothing about the gender recognition discrimination which is in play here.”
The hearing, before Mrs Justice Lieven, is due to conclude on Wednesday with a judgment expected at a later date.
