Sex Matters v The Mayor and Commonalty and Citizens of the City of London

A judicial review challenge to an existing policy is premature where a public body is actively reviewing it through consultation and has not yet made the substantive decision under challenge. The court should ordinarily allow that process to run its course, particularly where intervention would constrain the options being considered.

Where the claim concerns discrimination in the provision of services under the Equality Act 2010, the statutory scheme and the availability of a County Court remedy weigh against judicial review. An interest group will not ordinarily have sufficient standing where identifiable individuals directly affected by the alleged discrimination can bring proceedings and the dispute requires individual factual comparisons.

Sex Matters, a charity promoting sex-based rights, sought permission to bring judicial review proceedings concerning admission arrangements at two Hampstead Heath swimming ponds. The arrangements permitted biological women and trans women to use the Ladies’ Pond, and biological men and trans men to use the Men’s Pond.

Following For Women Scotland v The Scottish Ministers [2025] UKSC 16, the Corporation announced a review and conducted a public consultation. Sex Matters alleged direct and indirect sex discrimination under the Equality Act 2010. The issues were whether the claim was premature or out of time, whether Sex Matters had standing, and whether the County Court provided an alternative remedy.

1. Permission refused. The Corporation had made no fresh decision amenable to judicial review. Its decision on 16 July 2025 was to continue the existing arrangements while commencing a process leading to a fresh decision after consultation. The signage merely clarified those arrangements and did not change them.
2. The challenge was premature. The Corporation was conducting a substantial consultation and intended to consider the responses, legal advice and available policy options before deciding the future admissions arrangements. Judicial review at that stage would improperly limit the options available to the decision-maker and cut across proper administration. The approach in Inclusion Housing v Regulator of Social Housing [2020] EWHC 346 was applicable. The position was analogous to R (Eisai) v NICE [2008] EWCA Civ 438.
3. An extension of time was also refused. Although ongoing unlawful policies may sometimes be challenged outside the ordinary period, the general rule is that time runs when the claimant is affected by the challenged measure, as stated in R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657. The present case differed materially from R v Birmingham City Council ex p Equal Opportunities Commission [1989] AC 115, because the Corporation was actively consulting and preparing a fresh decision.
4. Sex Matters lacked sufficient standing. The claim was framed principally as direct discrimination, requiring consideration of individuals treated less favourably than actual or hypothetical comparators. Identifiable individuals had provided evidence and could bring claims themselves.
5. The County Court was the appropriate forum for a claim under section 29 of the Equality Act 2010. Section 114(1) assigned primary jurisdiction over Part 3 services claims to that court, and its procedures were suited to factual discrimination disputes. Judicial review should ordinarily not proceed where a convenient and effective statutory remedy exists. The principles in R (Watch Tower Bible and Trust Society v Charity Commission [2016] EWCA Civ 154 and R (Davies) v Financial Services Authority [2003] EWCA Civ 1128 supported that conclusion.
6. The grounds were not so obvious or overwhelming as to justify permission despite prematurity and the alternative remedy. Permission to bring judicial review proceedings was refused.