Campaigners have argued that allowing trans people to use their preferred facilities at Hampstead Heath's mens and women's ponds “indirectly discriminates against women”, the High Court has heard.
The organisation Sex Matters charity is challenging the City of London Corporation's rules allowing trans people to use the facilities at the north London swimming ponds according to the gender with which they identify.
The charity's lawyers told the High Court on Tuesday that the arrangement puts women at a “particular group disadvantage compared to men” because they are at greater risk of their privacy, dignity and sense of safety being “compromised”.
Legal challenge over pond access
The corporation is defending the claim, telling the court there had been no substantiated incidents of inappropriate behaviour by a trans person since the policy was enacted in 2017.
The corporation confirmed in June that the Highgate men's pond will be open to transgender men whose biological sex is female, while transgender women whose biological sex is male will continue to have access to the Kenwood ladies' pond, and the Hampstead mixed pond is open to all.
The Supreme Court ruled last year that "woman" under the Equality Act means biological woman. As a result, Sex Matters is arguing that the City of London Corporation's trans-inclusive rules are unlawful.
Arguments from both sides
In submissions on behalf of Sex Matters, Tom Cross KC said the policy means some men and women are being excluded from swimming, while those identifying as trans are allowed to enter.
Mr Cross added: “It is not lawful to exclude persons from one sex but include others of that same sex.”
He also said that the arrangements “indirectly discriminate against women without legal justification”.
In written submissions, Mr Cross said Sex Matters is not suggesting that “every, or most, or even many” trans women pose “an actual threat” to women.
“The point is that women are more likely to experience compromise to their privacy, dignity and/or sense of safety than are men in the presence of a person of the opposite sex in what they expect to be a same-sex space,” Mr Cross continued.
Mr Cross said Britain's rights watchdog, the Equality and Human Rights Commission, has “repeatedly advised” that the corporation's policy is unlawful.
The barrister also said that a trans person could still freely use the ponds according to their biological sex, or the mixed pond, adding: “There is nothing inherently 'manly' about the Highgate pond or inherently 'womanly' about the Kenwood pond.”
Corporation defends policy
Acting on behalf of the City of London Corporation, Daniel Stilitz KC refuted this claim, saying in written submissions: “There is no evidence before the court of any risk posed by the admission of trans women to the ladies' pond.”
Mr Stilitz said the admission arrangement is “justified” and a “proportionate means” of minimising disadvantages to trans people, which “fosters an environment that reflects the ethos of the ponds”.
He continued that a sex-based policy “would have deprived the ponds of their unique character” and “would also have been likely to give rise to claims of indirect discrimination by trans users, which the corporation would have struggled to justify”.
The ladies' pond offers private facilities for users who do not wish to change or shower in a communal space, Mr Stilitz said, with the corporation spending between £730,000 and £1.08 million on improving this provision.
Mr Stilitz also said the claim should be thrown out because it had been brought too late, should have been brought in the county court, and because Sex Matters did not have the standing to bring the challenge.
The hearing before Mr Justice Linden is due to conclude on Wednesday with a judgment expected in writing at a later date.
