A very British path to discrimination
November 11, 2021 7:12 AM Subscribe
The secret court case 50 years ago that has robbed transgender people of their rights ever since “All the way through up to 1970, the path was: self-identify, get affirmative medical care, correct your birth certificate, and live equally. After 1970, that’s gone.” [archive.org link]
Fascinating read. Ewan's story was amazing... He did that - lived his whole life, complete with marriage and inheritance - in the 1950s. Unfortunately, the story about the 1970 court case where they required not one, but two gential inspections of a trans woman really struck home for me. Here we are, fifty years later, and people want genital inspections of child trans athletes.
posted by Flight Hardware, do not touch at 7:26 AM on November 11, 2021 [7 favorites]
posted by Flight Hardware, do not touch at 7:26 AM on November 11, 2021 [7 favorites]
Sorry, am in the UK. Not paywalled here, didn't think to check. Finding it difficult to read the story is kind of apt.
posted by epo at 7:29 AM on November 11, 2021 [2 favorites]
posted by epo at 7:29 AM on November 11, 2021 [2 favorites]
I was able to read the article. Maybe it was because I'm using the Bypass Paywalls Clean extension in firefox.
I am still kind of flabbergasted that there can be secret court decisions that aren't tagged 'national security'. But I guess protecting the status quo is very much a matter of state security when you're the status quo.
posted by djeo at 7:29 AM on November 11, 2021 [5 favorites]
I am still kind of flabbergasted that there can be secret court decisions that aren't tagged 'national security'. But I guess protecting the status quo is very much a matter of state security when you're the status quo.
posted by djeo at 7:29 AM on November 11, 2021 [5 favorites]
I read an article this morning about hereditary peers in the House of Lords, and it was presented as an absurd, but ultimately harmless British tradition.
The article by Patrick Strudwick is a reminder that a lot of pain is inflicted in the effort to maintain existing power structures.
posted by Kattullus at 7:54 AM on November 11, 2021 [9 favorites]
The article by Patrick Strudwick is a reminder that a lot of pain is inflicted in the effort to maintain existing power structures.
posted by Kattullus at 7:54 AM on November 11, 2021 [9 favorites]
I do wonder how much those two cases, so tied to the British class system and preserving the power of the upper class, explain why the UK is currently such a hotbed of TERF-dom. Active TERFs are very much a vocal minority, but they seem to have an utterly outsized grip on the media in particular.
posted by I claim sanctuary at 10:00 AM on November 11, 2021 [7 favorites]
posted by I claim sanctuary at 10:00 AM on November 11, 2021 [7 favorites]
I have been wondering why the TERFery in the UK is so loud! In particular I was wondering if British attitudes toward class, in the vein of “striving is extremely crass and the only decent person is one who knows their place and doesn’t try to alter it,” could present a useful analogy: don’t try to change the demographic group you were born into. Here it seems that it might be more than analogy!
posted by eirias at 10:55 AM on November 11, 2021 [3 favorites]
posted by eirias at 10:55 AM on November 11, 2021 [3 favorites]
I'm sure there is some link between class privilege and "elite" TERFery in the media, but I'm not sure how much these cases tie into that - in the Forbes case, its kind of the opposite - he was able to have his transition legally recognised even at the highest level of society and where it really counts (for the aristocracy): inheriting title and money.
The Ashley case seems to be where things became legally a lot harder for Trans people in the UK, but its not really a comfortable case for TERFs: the case only happened because the husband didn't want to pay out in a divorce from Ashley and saw her Trans status as a loophole. If they'd remained married, it would instead be an instance of self-id being sufficient to recognise legal gender (ie for purposes of marriage).
posted by crocomancer at 11:15 AM on November 11, 2021 [2 favorites]
The Ashley case seems to be where things became legally a lot harder for Trans people in the UK, but its not really a comfortable case for TERFs: the case only happened because the husband didn't want to pay out in a divorce from Ashley and saw her Trans status as a loophole. If they'd remained married, it would instead be an instance of self-id being sufficient to recognise legal gender (ie for purposes of marriage).
posted by crocomancer at 11:15 AM on November 11, 2021 [2 favorites]
The Playdon book seems to be a very good read based on the sample I looked at online. Not sure I'm motivated to pay full price, perhaps the library will get it in for me.
posted by epo at 1:03 PM on November 11, 2021
posted by epo at 1:03 PM on November 11, 2021
It's really pretty breathtaking --- you hear about anti-trans activism and legislation ultimately benefiting the patriarchy, but usually that's more of an abstract notion than a literal aristocracy clinging desperately to the institution of male primogeniture. People you can point to who are 100% authentic real-world patriarchs (in a nonreligious sense). I didn't know metaphor could have a total opposite but I'd love to know the word for that.
posted by Chef Flamboyardee at 1:30 PM on November 11, 2021 [9 favorites]
posted by Chef Flamboyardee at 1:30 PM on November 11, 2021 [9 favorites]
I know very little about the British legal system beyond powdered wigs, but I find the idea of a secret legal case that is hidden from the public yet still used as precedent mind-boggling. Is there anything remotely similar in the US legal system?
posted by TedW at 2:49 PM on November 11, 2021
posted by TedW at 2:49 PM on November 11, 2021
Dunno, TedW, I have this citation but I have pinch-to-zoom it.
(And I'm kicking myself, of course there's power driving UK anti-trans sentiment.)
posted by k3ninho at 4:05 PM on November 11, 2021 [1 favorite]
(And I'm kicking myself, of course there's power driving UK anti-trans sentiment.)
posted by k3ninho at 4:05 PM on November 11, 2021 [1 favorite]
I loved this, thanks! For those who are curious, here is a good article talking about some of the history of TERFism and why it seems especially virulent in the UK. Starts more recently than this one, so complements it.
posted by contrapositive at 8:57 PM on November 11, 2021 [1 favorite]
posted by contrapositive at 8:57 PM on November 11, 2021 [1 favorite]
For a broader look at trans history in the UK, I recommend Trans Britain by Christine Burns. I learnt a huge amount from this book.
posted by crocomancer at 1:13 AM on November 12, 2021 [3 favorites]
posted by crocomancer at 1:13 AM on November 12, 2021 [3 favorites]
Not thread sitting, honest!
Zoë Playdon was interviewed on Radio 4's Today programme on Tuesday the 9th. The interview (starts after the time check just after 2:42:00) is very supportive and gives her plenty of time to explain the importance of the book. Prof Playdon, clearly, explicitly, and in some detail explains what the establishment was so afraid of: a threat to the law of primogeniture was a threat to a predictable path of succession to the monarchy. So yes, this goes all the way to the top of British society.
i'm sure the recording (only available for 27 days) is region locked and I am equally sure that non-UK MeFites will know how to get round this. Playdon is obviously doing media at the moment, check her twitter account for events.
posted by epo at 1:22 AM on November 12, 2021 [3 favorites]
Zoë Playdon was interviewed on Radio 4's Today programme on Tuesday the 9th. The interview (starts after the time check just after 2:42:00) is very supportive and gives her plenty of time to explain the importance of the book. Prof Playdon, clearly, explicitly, and in some detail explains what the establishment was so afraid of: a threat to the law of primogeniture was a threat to a predictable path of succession to the monarchy. So yes, this goes all the way to the top of British society.
i'm sure the recording (only available for 27 days) is region locked and I am equally sure that non-UK MeFites will know how to get round this. Playdon is obviously doing media at the moment, check her twitter account for events.
posted by epo at 1:22 AM on November 12, 2021 [3 favorites]
The recording is not region-locked (thank you Neil Gaiman for the information that BBC radio's available worldwide).
The interview is quite clear in how despite Forbes winning his trial, it triggered an establishment reaction that reclassified trans people as mentally ill, removing all the liberties that allowed Forbes to live his life so well, including medical treatment, corrections in documents and marriage, based on the threat to male primogeniture. I guess the 2013 Succession to the Crown act removes that issue for the throne at least, since it brought in gender equality, but it might be decades before it filters down to the way titles and estates are inherited, and in the meantime all trans people in the UK keep fighting for what they lost all of half a century ago.
posted by I claim sanctuary at 2:40 AM on November 12, 2021 [4 favorites]
The interview is quite clear in how despite Forbes winning his trial, it triggered an establishment reaction that reclassified trans people as mentally ill, removing all the liberties that allowed Forbes to live his life so well, including medical treatment, corrections in documents and marriage, based on the threat to male primogeniture. I guess the 2013 Succession to the Crown act removes that issue for the throne at least, since it brought in gender equality, but it might be decades before it filters down to the way titles and estates are inherited, and in the meantime all trans people in the UK keep fighting for what they lost all of half a century ago.
posted by I claim sanctuary at 2:40 AM on November 12, 2021 [4 favorites]
I know very little about the British legal system beyond powdered wigs, but I find the idea of a secret legal case that is hidden from the public yet still used as precedent mind-boggling. Is there anything remotely similar in the US legal system?
This is clearer in the interview where she speaks directly and in the book (presumably) but I found the inews article a little confusing because it's actually the other way around.
The headline and lead-in to the article makes it look initially like Ewan Forbes lost his case and this case was used as a precedent but kept secret. That would indeed be very odd. Ewan Forbes won, but the fact that it was kept secret made it much more difficult to use as a precedent in the future. Also, while he won, it nonetheless was the first of a series of rulings which established the idea that judges could and should make the final decision on gender recognition and that they should do so using medical expert testimony. This might seem natural (if regrettable) to us now but actually it wasn't.
It was actually the Ashley case which went the other way which set a very damaging precedent and that one was not secret.
I think based on the interview which makes this much clearer than the article that Prof Playdon's case is essentially:
-It is not the case that it has been impossible to change a birth certificate since time immemorial and that making it easy to do so is some kind of social innovation. Actually it was always allowed until it became explicitly disallowed. The current situation, where we consider it normal that this is a medico-legal decision and essentially debate over *how* that decision should be made but not *that* it should be made by judges or doctors is the aberration and creating a permanent statutory basis for self recognition is the restoration of an ancient and traditional liberty to 20th century state over-reach and prejudice and not some kind of radical project at all.
-The cases that led to the adoption of the idea that it should be disallowed in general were tied up with people fighting over aristocratic property rights and titles.
-Even in the Forbes case, while the ruling was in his favour, it did introduce the idea that a judge *should* decide such a thing and that the way they should do that is based on medical testimony. Arguably that is a sort of genesis for the current UK legal regime around gender recognition which involves medico-legal gatekeeping. Victory or not, it essentially destroyed a traditional right and made it conditional.
What I didn't see in the article and I presume is further developed in the book is the evidence that this case was specifically kept secret because of threats to primogeniture rather than because the case was conducted in secret and sealed at the request of the original parties.
Also presumably developed in greater detail in the book (because it doesn't particularly seem likely to me on the face of it) is that not just the historic legal position was shaped by this but that current opposition to self recognition is also still affected by issues relating to primogeniture and succession. I don't know, maybe, but to be honest both the right wing culture war and TERFy opposition don't actually seem to have anything to do with primogeniture. There is actually quite a substantial constituency of aristocrats who want primogeniture removed at least optionally from their own titles, people have fewer children these days and there are a lot of titled people around who don't have sons and want everything to pass to their daughter and not to their third cousin. This is also why laws where changed many decades ago to get rid of entails and things like that - at the insistence of the hereditary patriarchs themselves and not anyone else.
posted by atrazine at 3:02 AM on November 12, 2021 [6 favorites]
This is clearer in the interview where she speaks directly and in the book (presumably) but I found the inews article a little confusing because it's actually the other way around.
The headline and lead-in to the article makes it look initially like Ewan Forbes lost his case and this case was used as a precedent but kept secret. That would indeed be very odd. Ewan Forbes won, but the fact that it was kept secret made it much more difficult to use as a precedent in the future. Also, while he won, it nonetheless was the first of a series of rulings which established the idea that judges could and should make the final decision on gender recognition and that they should do so using medical expert testimony. This might seem natural (if regrettable) to us now but actually it wasn't.
It was actually the Ashley case which went the other way which set a very damaging precedent and that one was not secret.
I think based on the interview which makes this much clearer than the article that Prof Playdon's case is essentially:
-It is not the case that it has been impossible to change a birth certificate since time immemorial and that making it easy to do so is some kind of social innovation. Actually it was always allowed until it became explicitly disallowed. The current situation, where we consider it normal that this is a medico-legal decision and essentially debate over *how* that decision should be made but not *that* it should be made by judges or doctors is the aberration and creating a permanent statutory basis for self recognition is the restoration of an ancient and traditional liberty to 20th century state over-reach and prejudice and not some kind of radical project at all.
-The cases that led to the adoption of the idea that it should be disallowed in general were tied up with people fighting over aristocratic property rights and titles.
-Even in the Forbes case, while the ruling was in his favour, it did introduce the idea that a judge *should* decide such a thing and that the way they should do that is based on medical testimony. Arguably that is a sort of genesis for the current UK legal regime around gender recognition which involves medico-legal gatekeeping. Victory or not, it essentially destroyed a traditional right and made it conditional.
What I didn't see in the article and I presume is further developed in the book is the evidence that this case was specifically kept secret because of threats to primogeniture rather than because the case was conducted in secret and sealed at the request of the original parties.
Also presumably developed in greater detail in the book (because it doesn't particularly seem likely to me on the face of it) is that not just the historic legal position was shaped by this but that current opposition to self recognition is also still affected by issues relating to primogeniture and succession. I don't know, maybe, but to be honest both the right wing culture war and TERFy opposition don't actually seem to have anything to do with primogeniture. There is actually quite a substantial constituency of aristocrats who want primogeniture removed at least optionally from their own titles, people have fewer children these days and there are a lot of titled people around who don't have sons and want everything to pass to their daughter and not to their third cousin. This is also why laws where changed many decades ago to get rid of entails and things like that - at the insistence of the hereditary patriarchs themselves and not anyone else.
posted by atrazine at 3:02 AM on November 12, 2021 [6 favorites]
About whether there was previously a right to change one's legal gender; it seems like there wasn't a law deciding either way, which means that there wasn't a right in law. In those cases, it is left up to an individual court to decide on the matter – in this case, a person's legal gender – with the result that one court can decide one way and another court can decide a different way. Until the law is settled, by statue or by precedents, there isn't a definite right for or prohibition against.
That's the situation that was in place until the Gender Recognition Act 2004, for the first time, guaranteed trans people the right to change their legal gender. If either case were being heard today, then both Forbes and Ashley – assuming they had each obtained their Gender Recognition Certificate – would have found their case a lot simpler.
posted by vincebowdren at 3:57 AM on November 12, 2021 [1 favorite]
That's the situation that was in place until the Gender Recognition Act 2004, for the first time, guaranteed trans people the right to change their legal gender. If either case were being heard today, then both Forbes and Ashley – assuming they had each obtained their Gender Recognition Certificate – would have found their case a lot simpler.
posted by vincebowdren at 3:57 AM on November 12, 2021 [1 favorite]
Another really interesting thing which has struck me after reading the news article and the wikipedia entry on Forbes, is that he seems to have been generally accepted as a man without much fuss. I'm sure that everyone knew he was a trans man, but he just (without activism or politics) got on with his life as a man, and that was OK with some notably conservative parts of society:
1. an aristocratic family
2. the medical industry, in which he practiced as a GP
3. his practice patients, who were "reported as universally supportive"
4. his local kirk, in which he was married and later became an elder
5. the law, in which he was a Justice Of The Peace
6. the judge at the inheritance trial, who "desired to ensure the estate and the title was inherited by the 'right' candidate, and was flexible with his judgement to obtain this result"
In my opinion, that reflects very well on most of the society he moved in; and his life is as good an example of the principle "live and let live" as you can imagine.
posted by vincebowdren at 5:54 AM on November 12, 2021 [8 favorites]
1. an aristocratic family
2. the medical industry, in which he practiced as a GP
3. his practice patients, who were "reported as universally supportive"
4. his local kirk, in which he was married and later became an elder
5. the law, in which he was a Justice Of The Peace
6. the judge at the inheritance trial, who "desired to ensure the estate and the title was inherited by the 'right' candidate, and was flexible with his judgement to obtain this result"
In my opinion, that reflects very well on most of the society he moved in; and his life is as good an example of the principle "live and let live" as you can imagine.
posted by vincebowdren at 5:54 AM on November 12, 2021 [8 favorites]
Right at the end of that wikipedia article. Forbes died in 1991, leaving no children, and was succeeded in the baronetcy by his cousin John, the man who had originally mounted the legal challenge in the 1960s.
I had wondered why John was so keen to challenge Ewan's succession. He must have been pissed off at the verdict.
posted by epo at 7:23 AM on November 12, 2021 [1 favorite]
I had wondered why John was so keen to challenge Ewan's succession. He must have been pissed off at the verdict.
posted by epo at 7:23 AM on November 12, 2021 [1 favorite]
I was also struck by how supportive his family was at a very young age - in the interview, Zoe Playdon mentions they were looking for medical interventions for him as early as age 6. Considering the current UK brouhaha about puberty blockers and social transitions for teenagers, things do seem to be severely worse than a century ago.
posted by I claim sanctuary at 7:26 AM on November 12, 2021
posted by I claim sanctuary at 7:26 AM on November 12, 2021
I'm sure that everyone knew he was a trans man, but he just (without activism or politics) got on with his life as a man, and that was OK with some notably conservative parts of society.
One of the things about the trans experience - then and now - is that there are many, many trans people who go completely under the radar. I've heard about plenty of trans people giving talks at rallies or pride events where they are speaking for the first time publicly as trans, having been living stealth just fine until then.
Or, to bring in my personal experience, Metafilter is one of the only places I'm not stealth at this point. That's my way of dodging transphobia.
So no, I don't think we can assume 'everyone knew he was a trans man.'. The vast majority of people he interacted with a few years after starting hormones almost certainly had no idea. In fact, it was most likely rarely discussed by those who did know, in order to keep it a secret.
The idea that this "reflects very well on most of the society he moved in" erases the vast gulf of transphobia present in society then and today.
posted by Flight Hardware, do not touch at 7:55 AM on November 12, 2021 [4 favorites]
One of the things about the trans experience - then and now - is that there are many, many trans people who go completely under the radar. I've heard about plenty of trans people giving talks at rallies or pride events where they are speaking for the first time publicly as trans, having been living stealth just fine until then.
Or, to bring in my personal experience, Metafilter is one of the only places I'm not stealth at this point. That's my way of dodging transphobia.
So no, I don't think we can assume 'everyone knew he was a trans man.'. The vast majority of people he interacted with a few years after starting hormones almost certainly had no idea. In fact, it was most likely rarely discussed by those who did know, in order to keep it a secret.
The idea that this "reflects very well on most of the society he moved in" erases the vast gulf of transphobia present in society then and today.
posted by Flight Hardware, do not touch at 7:55 AM on November 12, 2021 [4 favorites]
Well, this is a new level of bullshit that every BritTERF will ignore.
posted by mephron at 8:38 AM on November 12, 2021 [1 favorite]
posted by mephron at 8:38 AM on November 12, 2021 [1 favorite]
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posted by Umami Dearest at 7:23 AM on November 11, 2021