Publication
Raising the bar for campaign groups seeking judicial review
Sex Matters v The Mayor and Commonalty and Citizens of the City of London
Publication
Sex Matters v The Mayor and Commonalty and Citizens of the City of London
In a recent judgment, the High Court dismissed a judicial review claim brought by the charity Sex Matters challenging the admission policy for transgender people at the Hampstead Heath swimming ponds 1 For Women Scotland v The Scottish Ministers [2025] UKSC 16. . The judgment illustrates a relatively stringent approach to standing, prematurity and delay in judicial review, reinforcing the need for careful consideration of who should, and when to, bring a claim.
The Claimant, Sex Matters, is a charity which aims to promote sex-based rights, following the Supreme Court’s decision in For Women Scotland v The Scottish Ministers that “sex”, for the purposes of the Equality Act 2010 (the “Act”), should be given its “biological” meaning 2 Sex Matters v The Mayor and Commonalty and Citizens of the City of London [2026] EWHC 149 (Admin). . In these proceedings, Sex Matters sought to challenge the current admission arrangements at the Hampstead Heath swimming ponds, which allow trans women to use the Ladies’ pond (and trans men the Men’s pond). The charity argued that this policy gave rise to discrimination on the grounds of sex under the Act.
While Lieven J did not consider it necessary substantively to engage with the merits of the claim, and refused the claim at the permission stage, the case provides further clarity on the significance of standing, prematurity and promptitude. We discuss these requirements, and what this means practically for those who make use of judicial review, below.
To bring an application for judicial review, a claimant must show that they have “sufficient interest in the matter to which the application relates” 3 Senior Courts Act 1981, s.31(3). . Traditionally, the courts interpreted this requirement broadly and liberally, with the “sufficient interest” test encompassing those directly and personally affected, as well as parties representing indirect, wider interests.
The need for a broad outlook towards standing was recognised by Lord Diplock in a seminal 1982 case concerning Inland Revenue Commissioners, in which he considered that it would be “a grave lacuna in our system of public law if a pressure group […] or even a single public spirited taxpayer, were prevented by outdated technical rules of [standing] from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped” 4 R v Inland Revenue Commissioners, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617. .
Groups representing wider interests, including NGOs, campaign groups and representative bodies, have been held to have “sufficient interest” in various situations, including, for instance, Greenpeace in relation to a decision concerning a power plant 5 R v Inspectorate of Pollution (No. 2), ex parte Greenpeace Ltd [1994] 4 All ER 329. . The courts have also recognised standing where an individual has no private interest at all, provided the issue is of sufficient public importance, as in Lord Rees-Mogg’s (ultimately unsuccessful) challenge to the Foreign Secretary’s decision to ratify the Maastricht Treaty 6 R v Secretary of State for Foreign and Commonwealth Affairs Ex p Lord Rees-Mogg [1994] QB 552. . The principal focus is to ensure claims from the “the mere busybody” are not granted standing 7 AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46; Sex Matters v The Mayor and Commonalty and Citizens of the City of London [2026] EWHC 149 (Admin). . This is an issue which is live not just at the permission stage, but one to be considered as part of the substantive claim, given its innate connection to the facts and merits.
Despite this historically low bar, standing has in recent years become an issue of greater significance and contention. An Independent Review of Administrative Law (“IRAL”) was initiated by the Government in 2020 to consider potential reforms of judicial review, including the law of standing. The IRAL Report called for courts to question standing more often, noting also that it was open for defendants to do more to challenge the point 8 The Independent Review of Administrative Law Report, dated March 2021, paragraph 4.99. .
This culminated in the 2022 case of Good Law Project and Runnymede Trust, in which the Court found that Good Law Project, a not-for-profit which sought to challenge injustice and inequality and uphold good public administration, did not have standing to challenge a government appointment made without open competition 9 Good Law Project and Runnymede Trust v Prime Minister and Secretary of State for Health & Social Care [2022] EWHC 298 (Admin). . The Court found that a strong interest in public law matters does not automatically justify standing. Good Law Project cannot “confer standing upon itself by drafting its objects so widely that just about any conceivable public law error by any public authority falls within its remit.” Rather, courts should consider the type of decision being challenged, the expertise of the public interest group and whether a better-placed claimant might bring the challenge instead. You can read more about this case in our blog post here.
Putting the Good Law Project principles to the test, Lieven J considered that in Sex Matters, like Good Law Project, there were individuals directly and personally affected by the decision under challenge who could bring the claim. This was a corollary of the nature of the discrimination claim: section 29 of the Act is aimed at individual(s) being treated less favourably (as opposed to something affecting a group at large). Accordingly, Lieven J found that the appropriate party to bring the claim would be the individual(s) allegedly discriminated against, pointing in particular to the four women who provided witness statements describing their experiences of alleged discrimination.
While the Claimant argued that there were strong reasons why it would not be appropriate for the individuals themselves to bring the claim, including concerns about negative publicity, Lieven J did not regard this as a genuine obstacle (noting that the women wrote statements in their own names and that, in any event, the claim could be anonymised). There were additionally no further structural barriers that would justify an interested group bringing the claim.
The grounds of the claim were significant not only in relation to identifying the appropriate claimant, but also the appropriate forum. Section 114(1)(a) of the Act envisages that section 29 claims are brought in the County Court (and by an individual claimant). For this reason, and on the basis that the County Court is better placed to determine issues of fact, Lieven J considered that the County Court was the appropriate forum for the claim. Sex Matters argued that, as a group, it could not bring a claim in the County Court and therefore had no alternative remedy; however, this point only reinforced Lieven J’s view that the charity was not the appropriate claimant.
The above being said, Lieven J recognised that there is no “bright line” test and whether a representative body is appropriate to bring a judicial review is to be assessed on a case-by-case basis, albeit she noted that an interest group in a discrimination claim is unlikely to have standing given the need to consider facts related to individual claimants, rather than generic issues.
The Sex Matters judgment therefore reflects an apparent continuation of a stricter approach to standing, although it may transpire that this particular judgment is most important in future discrimination claims. This applies particularly where there is a better-placed claimant, which might well be an individual affected rather than a campaign group concerned.
In addition to standing and the availability of an alternative forum, the question of when a judicial review claim should be brought provided a further basis for Lieven J’s decision not to grant Sex Matters permission to proceed.
The Court found that the substantive decision regarding access arrangements at the ponds – namely that trans people could swim in the pond of the gender with which they identify – had remained unchanged since at least 2017. The acceptance of a Committee Report’s recommendation to continue the existing arrangements and to start a consultation process towards making a fresh decision did not constitute a fresh decision.
Rather, as a matter of good administration and proper decision-making, the defendant should be allowed to conduct a full consultation before making a decision. The appropriate time for the challenge would therefore run from the taking of a fresh decision following that consultation, in line with the approach in Inclusion Housing and R (Eisai) v NICE 10 Inclusion Housing v Regulator of Social Housing [2020] EWHC 346; R (Eisai) v NICE [2008] EWCA Civ 438. , where time for a challenge was held to run from the taking of a decision following an internal review process.