Written evidence submitted by Professor Zoë Playdon to the transgender equality inquiry

Summary

1. This evidence delineates briefly the eugenic project that commenced fifty years ago, to sterilise, disenfranchise, and silence trans people.
2. Trans people experience a congenital neuroendocrinological condition that in no way affects their abilities or merits. However, diagnosis renders them second-class citizens, conscripted into a degrading medical regime, coerced into sterilisation, and legally disenfranchised. The eugenic project comprises biological genocide, cultural genocide, and social exclusion.
3. Before 1965, trans people had full equality. Since then, their cultural development and legal standing has been replaced by trauma and abjection.
4. In the 1960s, conversion therapists turned a cultural antipathy towards gay, lesbian, and trans people into a psychiatric category. That underpinned a UK legal decision in 1970, which stripped trans people of their civil liberties, status, and identity.
5. Protection of primogeniture, especially for inheritance of aristocratic title, appears to have been a motive. However, the process by which specific case law in 1970 was subsequently extended into comprehensive disenfranchisement was carried out without parliamentary decision or legal authority and is thus unrecorded: abjection without due process and exclusion from official history are typical eugenic strategies.
6. In the 1970s, two key pieces of falsified medical research supported trans people’s ongoing psychopathologisation and subjection to an abusive medical process that deliberately withholds essential medical care and that may last for years. The number of people who have been subjected to this abuse is unknown[1]: exclusion from the public record is a typical eugenic strategy.
7. Survivors of the eugenic project found the strength, courage, and support to bring their experiences to light in the European Courts, which began to remediate their inequities from 1996 onwards.
8. In 2004 the Gender Recognition Act acknowledged that trans people had no mental illness or mental disorder. However, medicine continues psychopathologisation and Gender Identity Certificates continue to provide second-class citizenship.
9. The psychopathologisation of trans people is internationally condemned. Their degrading and inhuman medical treatment may constitute psychological torture.
10. Trans people identify through one, or both, of two definitions that are presently in operation. Biologically, trans is a congenital, neuroendocrinological, asymptomatic intersex condition. Culturally, trans is part of behavioural performance and social character. Both require respect and support.
11. The only valid comparator for the rights of trans people is absolute equity with every other UK citizen. There are no shortcuts to restoring respectful relations between an oppressed minority group and the larger body of society: collective efforts are required from the whole of society. The goal of restitution of rights removed in the past can only be reached through understanding what has happened, honouring those truths, and reconciling for the future.

Introduction

1. This is summary evidence only. Recognising that the narrative of the trans experience is difficult to accept in a country such as the UK, that has long prided itself on being a bastion of democracy, social justice, and diversity, further detail and explanation will be made available on request. The purpose of this narrative is not to ‘name and shame’ but to witness, and thereby to lay the ground for reconciliation and restitution.
2. I am the Emeritus Professor of Medical Humanities at the University of London, formerly Professor and Head of Medical Education at NHS Kent, Surrey, and Sussex Regional Postgraduate Medical Deanery [KSS]. I hold five degrees, including two doctorates, and have a particular interest in practise-based medical ethics. A former Co-Chair of the Gay and Lesbian Association of Doctors and Dentists [GLADD], in 1995 I co-founded the Parliamentary Forum on Gender Identity with Dr Lynne Jones MP, as a location where trans community leaders, doctors, and lawyers may meet to discuss key issues with government departments and interested parliamentarians, with the intention of working mutually to achieve equality for trans people. The Forum continues to meet approximately four times a year.
3. In 2011 NHS South of England [NHS SE] became National Lead Commission for developing the National Service Specification [NSS] for Specialised Services for Gender Identity: it was NHS SE’s job to set out the care that trans people would receive from the NHS in the future. Implicit in the NSS was a scientific and cultural positioning of trans people that gave widespread concern to trans communities. Since KSS was part of NHS SE, I carried out a risk analysis of the NSS for discussion with my colleagues. This evidence stems in part from those discussions, which are still in progress with NHS colleagues.

Evidence

4. Since being trans is not a mental disorder, legal risk arises from trans people being obliged to undergo extensive psychological therapies as an access route to essential medicines, physical therapies, and surgeries. Most UK citizens and parliamentarians know little or nothing about the historical roots of trans peoples’ inequities. This lack of historical knowledge has serious consequences. In government circles, it makes for poor public policy decisions. In the public realm, it reinforces transphobic attitudes. History has an important role in reconciliation: to build for the future, the UK must look to, and learn from, the past. Accordingly, the historical events creating trans peoples’ current anachronistic position are summarised as the first part of this evidence:
1. A medical ‘turf war’ in the 1960s
2. A ‘category error’ arising from that medical dispute
3. Two landmark legal decisions in 1968 and 1970
4. A consequent removal of civil status and identity, without legal authority or foundation
5. The establishment of abusive psychological therapies that continues to coerce individuals into sterilisation.
5. However, the inequities experienced by trans people do not belong only to the past. They are experienced today. As well as a historical summary, this evidence provides:
1. The contemporary international condemnation of psychopathologisation
2. Examples of current unacceptable UK medical practices
3. Examples of current UK legal inequities
4. Some remedies required to achieve reconciliation and make restitution.
6. It is important to recognize that trans people are not a new minority group negotiating new liberties but are survivors of a eugenic project, requiring restoration of liberties which were taken away, and removal of abuses and inequities to which they are currently subject.

The medical ‘turf war’

7. In 1950, the etiology of ‘transsexualism’ was understood as a somatic, neuroendocrinological condition, ‘a chromosomal sex disturbance’,[2] affecting neurological development in utero.[3] Treatment involved hormone replacement therapy [HRT], physical therapies, and surgeries, providing transition from female to male, or from male to female, a binary system that did not take account of any states between male and female. Biologically, however, there are many intersex conditions, where individuals are neither wholly somatically male or female.
8. At this period, trans people routinely had their Birth Certificates corrected and reissued,[4] and the Passport Office provided passports without any indication of sex for their use while they were in the process of transition.[5] Some newspapers  treated trans people sensationally and pruriently but trans people automatically had full civil status in their real sex, including the right to marriage.
9. Contemporaneously, however, in the UK and the USA gay men were either imprisoned or treated medically, and consequently, in 1962, the first Gender Identity Clinic [GIC] was founded by conversion therapists at the University of California Los Angeles [UCLA] to ‘cure’ ‘sissy boys’ and ‘tomboys’ of homosexuality, transvestism, and transsexualism.[6] This extended the principles and practises of Conversion Therapy from homosexuality to trans people. The view was that gay men, lesbians and trans people could be ‘rebooted’ into their ‘natural’ and ‘god-given’ heterosexual binary male or female, by psychological therapies, ECT, aversion therapy, lobotomy, and chemical castration. Conversion Therapy is now outlawed in the UK.[7]
10.         Conversion Therapy initiated a ‘medical turf war’ in the USA and the UK, with three competing claims for the etiology of transsexualism:[8] as neuroendocrinology, colloquially termed ‘brain sex’; as a psychosis curable by psychological therapies; [9] and as an aberrant behavioural response caused by inadequate parenting. [10]
11.         Psychiatric interests deliberately undermined neuroendocrinological explanations through two pieces of falsified research. In the first, in 1972, findings were published showing that a baby boy who had been accidentally penectomised and raised as a girl, without his knowing, had adjusted perfectly well to his socialisation.[11] The ‘John/ Joan’ case, as it was known, claimed to show that sex, gender, and sexuality were products of nurture, not nature and its findings were widely distributed and accepted on both sides of the Atlantic by scientific and popular media.[12] Twenty-five years later, in 1997, Dr Milton Diamond, professor of anatomy and reproductive biology at the University of Hawaii, discovered that the John/Joan experiment had failed, that the boy had been deeply distressed by being forced to feign ‘female’ behaviour in front of the researchers, and that he had reassigned to male when he reached adulthood. The John/Joan experimental results had been falsified.[13]
12.         The second piece of falsified research sought to discredit surgical treatment for trans people. Inevitably, psychological therapies were unable to ‘cure’ trans people and a high level of clinical success and patient satisfaction continued to result from HRT and surgery. Seeking to invalidate this evidence, in 1979 the Meyer-Reter psychiatric test scored patients for getting better jobs and entering ‘gender-appropriate’ marriages after surgery. Disregarding widespread criticisms of its flawed, heteronormative methodology, the research concluded that ‘sex reassignment surgery . . . confers no objective advantage in terms of social rehabilitation.’[14]
13.         Both pieces of falsified research were highly influential on the treatment of trans people in the UK and the USA. If sex, sexuality, and gender were matters of nurture, then behaviour outside the heteronormative male-female binary was curable by psychological therapies, which would produce patients who scored well in the Meyer-Reter test. In both the USA and the UK, people defined as ‘transsexuals’, inherited the violent and useless psychological therapies that had been used formerly on gay men: ECT, aversion therapy, lobotomy, and chemical castration. Today, access to HRT and surgery, the only effective treatment for this somatic condition, continues to require completion of a brutal and ineffective regime of psychological therapies that can last for years.
14.         In 2004 an international symposium of medical experts, supported by the King’s Fund, recorded the decisive change in medical viewpoint, stating ‘individuals are born with an innate sense of their gender identity, which does not necessarily accord with the genital appearance’:

The scientific evidence supports the paradigm that transsexualism is strongly associated with the neurodevelopment of the brain (Zhou et al., 1995; Kruijver et al., 2000) . . . It is understood that during the fetal period the brain is potentially subject to the organising properties of sex hormones (Krujiver et al., 2000; 2001; 2002; 20003). In the case of transsexualism, these effects appear to be atypical, resulting in sex-reversal in the structure of the BSTc, and possibly other, as yet unidentified, loci (Krujiver, 2004). The etiological pathways leading to this inconsistent development almost certainly vary from individual to individual, so no single route is likely to be identified.[15]

15.         From 2004, onwards the scientific case for a biological, somatic etiology for being trans continued to increase. The most recent research concludes that ‘the mounting evidence for a biological basis is compelling. No doubt the next decade will bring new data that elucidates the complexities . . . the attribution of psychopathology, deficient parenting, or childhood trauma as the “cause” of gender dysphoria must be forever relegated to the status of myth.’ [16]
16.         This change in medical and scientific opinion coincided with the Gender Recognition Act (2004), and with formal, public guidance from Department of Health to the NHS that ‘It cannot be overemphasized that being trans is not a mental illness.’[17]
17.         However, trans people continue to be sent automatically to Mental Health Services for years of ‘assessment’, and have essential medicines and surgeries withheld until that requirement has been satisfied: they are psychopathologised. Effectively, ‘theories that rely on consensus, rather than science, have stigmatized people by “blaming the victim”.’[18] Like previous generations of gay men[19] and single mothers,[20] therefore, trans people became and continue to be the locus of a eugenic project.[21] At present, their healthcare treatment continues to be inhuman, degrading, and discriminatory and may amount to psychological torture.

Category error

18.         Medicine confused sex, gender, and sexuality, in what is known philosophically as a ‘category error’.[22] Sex is a matter of biology – female, intersex, and male. Sexuality is a matter of love – homosexual, bisexual, and heterosexual. Gender is a matter of cultural norms that categorize activities and artefacts as masculine, feminine, or transgressive.[23]
19.         Legally, this category error fuelled trans people’s loss of civil liberties. Three separate categories were collapsed into each other, so that sex and gender became synonymous, and biology was elided by culture. Behaviourist theory, built on falsified research, naively proposed that sex was a matter of parenting, not biology, that homosexuality was a product of trauma or psychosis, and that heteronormativity was the ‘natural’ state of all people.
20.         In spite of all evidence to the contrary, this category error held sway for a generation, justifying psychopathologisation, and initiating the eugenic project against trans people. Psychopathologisation coerced, and still coerces, individuals into sterilisation: this is biological genocide, the destruction of a group’s reproductive capacity. Psychopathologisation has also elided the group identity of trans people, by enforcing a rigid male-female binary system which destroys trans identities, and thereby constitutes cultural genocide.
21.         The ethos of GICs continues to be based on a psychopathologised assumption that heteronormativity is superior to trans culture, which is seen as being repulsive, pitiful, and perverse. Treatment reflects a low regard for the social and intellectual capacities of individuals. Staff in GICs continue to be limited in number, often poorly trained, inadequately supervised, and quite unregulated. The lack of supervision and regulation creates situations where individuals are prey to emotional, mental, physical, and sexual abuse. Many non-binary trans people have been forced into a binary existence: in practice, agreement to their sterilisation is compulsory for almost all trans people.
22.         Because second-wave feminism founded its position on a clear distinction between sex, sexuality, and gender, critique of the category error and support for trans people could have been expected from that quarter.[24] Instead, the Women’s Movement chose violently to attack trans people, [25] a practice still maintained today by, for example, Germaine Greer[26] and Julie Burchill.[27] Third wave feminism, as Gender Studies, appropriated the experience of trans people and defined and propagated it in relationship to a biologically normative discourse.[28] Denied the right to participate fully in UK political, economic, social, and intellectual life, trans people were and are highly vulnerable targets for such discrimination and exploitation.

Two landmark legal decisions

23.         The first legal turning point was the Forbes affair. Ewan Forbes had transitioned, had his Birth Certificate corrected, and married, in the 1950s when ‘transsexualism’ was a neuroendocrinological condition. However, Forbes’s inheritance of the primogeniture title ‘Lord Sempill’ was challenged by his cousin in the 1960s when ‘transsexualism’ was considered a psychosis. The case eventually went for decision to the Home Secretary, in December 1968, who found in Forbes’s favour. Since all records of this landmark case were lost to the public record, and thus to legal precedent, a summary is provided at Annex A.
24.         Months later, Corbett v Corbett dealt with a similar potential inheritance of a title, that of ‘Lady Rowallen’, by a working-class trans woman, April Ashley. The evidence that was accepted in Forbes was refused in Corbett v Corbett [29] and the law followed medicine’s category error, defining Ashley as ‘a male homosexual . .  with abnormal psychological attitudes in sexual matters’.[30]
25.         Consequently, the Registrar General closed the facility for the elective correction of birth certificates consequent on sex reassignment,[31] so that trans people could no longer have their Birth Certificates corrected, or marry, or adopt. Irrespective of how long they had been employed or how good a job they did, they could be and typically were dismissed instantly their status was known, and if they were then unable to pay their parking fines, their custodial sentence would be served in the wrong sex prison, where they would have their medical treatment cut off and where typically they were raped by inmates and officers alike. Additionally, psychiatrists required married people to divorce before they would approve surgery, while at the same time requiring evidence that patients were emotionally stable and gainfully employed, as a precondition of treatment. The only option for UK medical treatment became lengthy and brutal psychiatric intervention[32] as a precursor to compulsory sterilisation. Legal exclusion accompanied social abjection and medical neglect.
26.         Forming the public imagination, the UK press focused largely on ‘frank revelations’, interviews, or ‘shocking’ announcements,[33] accompanied from time to time by ‘think pieces’,[34] which provided a pseudo-intellectual frisson to match the cruder tabloid exposés. This media attack included articles in the medical press.[35]

Removal of civil status and identity

27.         The process of disenfranchisement was largely invisible. As Edwina Currie MP wrote to the Home Office, in 1994, ‘this change in the law did not involve any vote in the House of Commons’. [36] It appears to have been carried out without legal authority or democratic foundation.
28.         Parallels with the Profumo Affair, three years before Forbes, may be relevant. [37] The formal statement of Lord Ormrod, the judge in Corbett v Corbett, that ‘the law is largely indifferent to sex’, although ‘it could be crucially important where succession to a title is concerned’[38] points to protection of primogeniture as a motive for disenfranchising trans people.
29.         The Succession to the Crown Act (2013) makes that motive redundant now, especially in light of the public letter from existing primogeniture title holders, saying ‘we believe if gender equality can be granted to the Royal Family, it is only logical and just that it be granted to all families [...] As the Labour peer Lord Dubs has said: “There should not be gender discrimination in Britain, full stop.”’[39]
30.         Similarly, the transphobic idea that correcting Birth Certificates could compromise national security is now viewed as risible: although there are long waiting times at GICs, that is not a result of health tourism by international terrorists.
31.         A distinctive example of disenfranchisement in action is provided on 24 April 1975, by the committee stages of the Sex Discrimination Bill, which was intended to cover trans people:

Mr. Lane: A thought crossed my mind, and I should like to mention it merely for an assurance that the Government either have thought about it or will think about it. Are they sure that the Bill, either here or elsewhere, adequately and clearly covers the cases of sex change, which we read about occasionally and which we should hate to be overlooked in such a comprehensive Bill?

Dr Summerskill: We considered this. Clearly people who have legally changed sex will be covered by the Bill, under whatever sex they have legally changed to. Clause 5 goes out of its way to provide key definitions for the purposes of the Bill, and it provides that sex discrimination means discrimination falling within Clause 1 or 2 – that is, discrimination against a woman or a man. The point that the Hon. Gentleman raised is covered.[40]

32.         In fact, it was not until 1996 that a successful case in the European Court of Justice, P v S and Cornwall County Council, restored employment rights to trans people. The judgement in P v S and Cornwall County Council was ‘the first piece of case law to come into existence, anywhere in the world, that prevents discrimination because someone is a transsexual.’[41] It was also notable for the Opinion of Advocate General Tesauro, that asked the ECJ to support ‘a universal fundamental value, indelibly etched in modern legal traditions and in the consti­tutions of the more advanced countries: the irrelevance of a person's sex with regard to the rules regulating relations in society’.[42]
33.         Further legal action restored the right to health care and to a level of legal recognition.[43]

Establishment of an abusive psychiatric regime

34.         Medical standards of care are based on establishing a typical patient narrative [TPN] and part of the determination in Corbett v Corbett, in 1970, provided a TPN that psychological therapists could use to diagnose trans people, together with standards of care for their treatment. Effectively, medicine was instructed by case law to treat trans people as mentally disordered.
35.         The legacy is that trans people are mandated into Mental Health Services, where they are coerced into relinquishing informed consent and obliged to undergo psychological therapies, because that is the care pathway currently in operation and because it is their only way of getting essential medicines, physical therapies, and surgeries. They are thus forcibly located in a power imbalance from which they cannot escape and to which they must accede if they wish for healthcare. Their psychological therapist may verbally insult them in any way they wish, they may physically assault them with enforced anal and vaginal examinations, they may humiliate them by parading them before lay people, they may degrade them by insisting they wear certain clothing, and the individual has no redress.[44]
36.         At the same time as the therapist purports to aid the person’s transition, they are also grooming them into accepting their own inauthenticity, perhaps by insisting that they begin to live in their gender role without hormones or necessary physical therapies. This also places individuals in physical danger from violent transphobic attacks. The psychological therapist dissects every part of their life: not just their sex but their sexual preferences and histories, the kind of activities they engage with in their social lives, the quality of their voice, the relative proportions of their anatomy, the pleasingness or otherwise of their facial features, their habits of movement, their postures of rest, their sense of fashion, their friendships, their choice of reading materials and television programmes, their family relationships, and their working lives, with the implication that any or all of these could influence or compromise the person’s transition. The effect is for the individual to develop the strong sense of personal inadequacy that constitutes internalised transphobia. This emerges, for example, in the language of people ‘passing’, that is, looking as though they really are the sex in which they present (with the implication that it is a masquerade only), or of ‘going stealth’, that is, of presenting so convincing an appearance of their sex that they can conceal their medical history.[45]
37.         This is a very serious matter. Individuals are groomed into ontological self-annihilation, that is, they are taught to disbelieve in, and thereby destroy, the very ground of their being that they have worked tirelessly to recover. Politically, it reflects the process of hegemony, the contribution by an individual to their own subversion. Psychologically, it is a deliberate destabilisation of individuals’ sense of self and of identity, which may impose a pervasive and permanent inadequacy and guilt, and in extreme cases, cause them to question their own rationality. The establishment of a dependent, power-imbalanced relationship with the victim, and their gradual desensitising by a progressive violation of their personal boundaries takes place over a long period of time, perhaps over several years. It replicates the form of psychological abuse known as ‘gaslighting’, in which the abuser continually presents their victim with distorted information, to make them doubt their own perceptions, and to become fearful and dependent: a process fundamental to cult indoctrination and to the grooming process used by sexual predators.
38.         That grooming process is supported by psychological therapists’ role as gatekeeper for trans peoples’ essential medicines, physical therapies, and surgeries. Therapeutic relationships require the therapist to keep their relationship with their client quite free of all other benefits, and must themselves be supervised regularly, precisely to ensure that there is no conflict of interest or violation of boundaries of that kind. Therapy requires a transference to be made between client and therapist, in order for the therapeutic bond to be formed, and thus, maintaining a boundaried relationship is a fundamental part of ethical and professional practice for therapists. These boundaries include the client’s freedom to leave the therapeutic relationship at any time, without prejudice to their other healthcare needs.
39.         Because these ethical boundaries are constantly breached, trans people are prevented from forming a therapeutic bond with the psychological therapist.  The therapeutic relationship is replaced by a traumatic one – captor-bonding, or so-called ‘Stockholm Syndrome’, the survival relationship made by prisoners with their captors. In this way, without their consent, individuals with no mental illness are mandated to Mental Health Services for in-depth psychological therapies, for an indeterminate but extensive period of time – perhaps years. Their essential medicines, physical therapies, and surgeries are withheld until they have satisfied the therapist’s requirements, without knowing what those requirements are – their situation is nightmarish. Part of the process of grooming and captor-bonding that they experience coerces them into acquiescing to their sterilisation. Every other individual who is mentally competent has the right to informed consent and choice in their care, or else they are protected by the Mental Capacity Act: trans people have no protection against enforced psychological therapies.

International response to psychopathologisation of trans people

40.         In 2010, the World Professional Association for Transgender Health [WPATH] released a statement urging the de-psychopathologisation of gender variance worldwide.[46] In 2012, a European Commission report on Trans and intersex people: Discrimination on the grounds of sex, gender identity and gender expression identified ‘a growing global call for the depathologisation of trans identities’. [47] In 2014 the psychopathologisation of trans people was condemned by Amnesty International[48] and the European Union.[49] Responding to this, the World Health Organisation [WHO] has announced that ‘gender identity disorders’ have been removed from the mental and behavioural disorders section of its International Classification of Disorders, ICD-11.[50] The American Psychiatric Association [APA] has already declared formally that ‘gender nonconformity is not in itself a mental disorder’.[51]
41.         Further, in 2013, a report from the United Nations General Assembly Human Rights Council, concerned with torture and ill-treatment in healthcare settings,[52] focussed on informed consent and identified that:

a violation of article 3 may occur where the purpose or intent of the State’s action or inaction was not to degrade, humiliate or punish the victim, but where this nevertheless was the result.[53]

. . . informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision. Guaranteeing informed consent is a fundamental feature of respecting an individual’s autonomy, self-determination and human dignity in an appropriate continuum of voluntary health-care services.[54]

42.         It also drew attention to coerced sterilisation, saying ‘In many countries transgender persons are required to undergo often unwanted sterilization surgeries as a prerequisite to enjoy legal recognition of their preferred gender’[55] and calling on all States to outlaw ‘forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups’.[56]
43.         The Report expressed concern that :

Health providers allegedly withhold care or perform treatments that intentionally or negligently inflict severe pain or suffering for no legitimate medical purpose.[57]

and specifically requires that:

Health-care providers must be cognizant of, and adapt to, the specific needs of lesbian, gay, bisexual, transgender and intersex persons.[58]

44.         In the UK context, these concerns about informed consent have been intensified by the case of Montgomery v Lanarkshire Health Board [59] which clarified that ‘the law now demands a standard of consent broadly similar to that required by the professional guidance of the General Medical Council.’[60] This means that ‘the so-called Bolam test, which asks whether a doctor’s conduct would be supported by a responsible body of medical opinion, no longer applies to the issue of consent’[61] – a consensus model is not now legal per se. Now, ‘the age of “medical paternalism” is over, and healthcare is now a partnership between patients and professionals’, so that doctors may not ‘cherry-pick’ the information they give to patients but must give them complete information about all possibilities and alternatives.[62] All arguments otherwise must fail legally, as they always have ethically, because in the words of the justices making the decision, ‘the dignity of patients requires no less’.[63] Lack of informed consent, coerced sterilisation, and withholding essential medicines, physical therapies, and surgeries without medical contraindications being present and evidenced, is illegal.
45.         Again, this is a very serious matter. Four essential elements define torture: ‘an act inflicting severe pain or suffering, whether physical or mental; the element of intent; the specific purpose; and the involvement of a State official, at least by acquiescence’.[64] In terms of suffering, in the UK, the psychopathologisation of trans people, and the power relationships they are forced to enter with psychological therapists, inflicts severe mental suffering. Their informed consent is compromised; their essential medicines, physical therapies, and surgeries are withheld; and they are habitually coerced into sterilisation. The intensity of suffering is all-pervasive, both body and mind are compromised; in terms of duration, its effects are life-long. As far as intent is concerned, extensive formal representations made to the General Medical Council [GMC][65] and the Royal College of Psychiatrists,[66] questions and debates have been raised in Parliament,[67] and a direct approach was made to the former Minister of Health.[68] None of these actions has yielded any change: this indicates the UK’s clear intent to continue psychopathologisation and its associated disenfranchisement. The UK’s specific purpose may originally have been to protect primogeniture. It now appears to be deliberate biological and cultural genocide, medically abusing trans people and civilly rendering them into second-class citizens. State officials from both central government and government-supported bodies are involved at every stage of this unequal treatment. Perhaps nothing could more starkly delineate the degradation and inhumanity of trans people’s treatment in the UK, than that it so closely meets the formal requirements to define it as torture.

Examples of current unacceptable UK medical practice

46.         As Szasz puts it, the distinction between ‘two radically different kinds of psychiatric practice, consensual and coerced, voluntarily sought and forcibly imposed’,[69] has been lost. Although the policy of UK government is to treat trans people as equal citizens, without mental illness, its practice operates as if they had a mental disorder requiring coerced psychological therapies and limited access to essential healthcare. This affects trans people from adolescence onwards.
47.         Adolescents suffer particularly from a monopoly service (there is no choice) in which opaque psychological ‘assessment’ may delay catastrophically their access to medication – ‘blockers’ - to postpone puberty. ‘Blockers’ provide a breathing space for adolescents to consider their choices, their effect is easily reversible, [70] and in the Netherlands and the USA, for example, they are available on a ‘choice and consent’ basis. While other adolescents are treated as Gillick competent, they are not. While parental wishes are heeded elsewhere in the NHS, theirs are not. Adolescents are prey to ‘too little, too late’, providing what one authoritative Nature review refers to as ‘a form of psychological torture’.[71]
48.         In adulthood, uniquely, trans women are the only women in the UK who do not receive hormone replacement therapy [HRT] from their GP on a ‘choice and consent’ basis. The separation in NHS services between GICs and GPs means that a GIC may recommend the prescription of HRT but a GP may refuse to prescribe, without giving any reason for their refusal, which may happen at any time. A frequently-cited difficulty is that the National Institute for Clinical Excellence [NICE] has not approved HRT for use by trans women, a matter one would think almost immediately soluble. The result is that trans women are not equal to every other woman – in effect, they are not ‘real women’ - but instead face daily the humiliating prospect of refusal and the degrading knowledge that medicines that are approved for all other women, are not approved for them. 
49.         Similarly, as a House of Lords debate highlighted, there is a lack of prostate screening for trans women and a constant history of reproductive services storage clinics turning trans women away.
50.         Similarly, the treatment of trans men requiring bilateral mastectomy is quite different from that of all other UK citizens. Provided they have a justified true belief that bilateral mastectomy will improve their health – for example, as risk-reducing surgery for women with a history of breast cancer – then women have one interview with a psychological therapist to ensure they have adequate patient education and to confirm their ability to consent, and proceed directly to surgery. In the case of men, breast development, known as gynecomastia, may occur for a range of reasons, and it is considered so reasonable that they would wish for bilateral mastectomy that psychological therapists are rarely involved. Trans men, however, are compelled to attend an unspecified, extensive period of psychological therapies, without their consent, in order to gain the same treatment. They are not considered to have an equivalent justified true belief that their health will be improved, although the evidence supporting their improvement in health far outweighs that of risk-reducing surgery. The same respect for their decision that is accorded all other men is not extended to them. Instead, at each enforced therapy session, they have to face the humiliating prospect of their reasonable request for treatment being refused, and live daily with the degrading knowledge that in the eyes of medicine, they are not ‘real men’.
51.         In all of these examples the patient voice is ignored and silenced by an implication of mental incapacity, further implying that individuals lives are only a pastiche or masquerade. These implications are all the more powerful for being unstated and hidden and therefore not available for challenge.
52.         In terms of wider NHS services, it is common for trans people not to disclose their trans status to medical practitioners, or not to seek medical help if they believe their trans status will be evident. This is because of diagnostic overshadowing. When identified as trans, for example, they may be the object of prurient attention, with staff surreptitiously photographing them as ‘freaks’; or of abusive comments; or they will be required to account for their trans status first, irrespective of their condition; or irrespective of their medical condition, it will be referred back to their trans status.[72]

Examples of current UK legal inequities

53.         Trans people are subject to significant legal inequities. As the Baroness Gould pointed out, in an article celebrating equal marriage, ‘All trans individuals are required to declare their trans history to any potential partner before marriage or civil partnership. No one else is forced to declare their history, while trans people are’.[73] In Scotland, a recent legal case there found a man guilty of ‘obtaining sexual intimacy by fraud’ because he had been treated for gender identity disorder.[74] This implies a duty of disclosure on all trans people before they enter any personally intimate relationship. It appears that while every other citizen can conceal any aspect of their medical or personal history from potential partners, one tiny minority is forced to reveal theirs to any potential partner, or face prosecution. In effect, this is a return to the 1970s blatantly discriminatory diktat that all ‘transsexuals’ are automatically rapists, since ‘rape, although it is usually done by force, can also be accomplished by deception’.[75]
54.         Trans people serving custodial sentences are subjected to ‘disguised discrimination’. Although in principle, they are able to leave the estate to attend medical appointments, in practice it is frequent and usual for such appointments to be cancelled, with staff shortages being cited as the reason for cancellation. In other words, there are no officers free to escort them to their medical appointment. This happens so frequently as to seem to be a habitual practice.
55.         Further, in the case of prior partnerships in England and Wales, Schedule 5 of the Marriage (Same Sex Couples) Act ‘requires the spouse of the trans person to “consent to the marriage continuing after the issue of a full gender recognition certificate.”’[76] This is not a requirement for any other life-altering medical condition. For example, married people who may need to register as blind or as disabled, are not required to gain spousal consent before they may be registered, nor are their spouses forced to consider whether or not they want to divorce the blind or disabled partner, and if so, to do so before the partner may be registered. Such treatment would be considered to be appallingly cruel. Nevertheless, it is the condition placed on trans people.
56.         Equal marriage was introduced to provide equal treatment for lesbians and gay men, who had previously been able only to celebrate their unions by a Partnership Ceremony. Partnership Ceremony was obviously a sexual apartheid, in which lesbians and gay men were rendered second-class citizens. A similar sexual apartheid attends trans people, who are obliged to use a Gender Identity Certificate rather than to have Birth Certificates identical to that of all other citizens. Practically, this means that intimate details of their personal medical history are available to every official who uses the Birth Certificate as evidence of identity and to every amateur genealogist. Politically, the Gender Recognition Act (2004) and issue of Gender Identity Certificates instead of a corrected Birth Certificates, position trans people as masquerading in their sex.
57.         This positioning as masquerade is reified by the Equality Act (2010) providing separate protected characteristics for ‘Gender Reassignment’ and for ‘Sex’. In effect, it denies the biological sex of trans people and locates their identity as social performance, not corporeal being.
58.         Perhaps it is for these reasons that educational establishments may choose not to follow the provisions of the Equality Act in the treatment of students. It is a common experience for parents and students to regard themselves as ‘lucky’ if a school accepts a trans person’s identity and facilitates their transition, rather than requiring it as a legal right. Similarly, further and higher education may refuse to alter records for a transitioning student or a transitioned alumnus, as though equal treatment is a matter of choice.

Remedies for reconciliation and restitution of equality

59.         Trans people are not a new minority group negotiating new liberties but are victims of a eugenic project, requiring restoration of the liberties of which they were deprived, and requiring cessation of the abusive psychological therapies and civil inequities to which they are presently subject.
60.         Stemming from the original category error, two broad meanings for ‘trans’ are in operation. One is a scientific discourse about biological sex: female, intersex, and male. The other is a cultural narrative about socially-constructed gender: masculine, transgressive, and feminine. The scientific discourse about sex is specific to people who wish for medical support, from endocrinology, surgery, and physical therapies, so that their physique is congruent with their neuroendocrinology: this includes non-binary people and affects individuals from adolescence onwards.
61.         The cultural narrative about gender is broader, sometimes intertwining gender and sexuality, and often expressed as temporary or permanent change in social behaviours and external appearances, especially clothing and personal adornment: Conchita Wurst, Eddie Izzard, and Grayson Perry provide high-profile examples. There is a danger that high-profile cultural transgression of gendered behaviour may confuse and divert attention away from the eugenic history and present inequities issues affecting trans people, and thereby contribute to their biological and cultural genocide.
62.         The key remedies for medical change are:
1. Withdrawal of current psychological therapists from their practices within Gender Identity Clinics, repurposing them to meet genuine mental health needs. Their own present proposal is to rebadge themselves as ‘Gender Identity Specialists’, in order to continue their practice under another name. This is not acceptable to the majority of the trans communities. Further, it is not acceptable to the majority of the medical communities since in the UK ‘Gender Identity’ is not a medical specialty. It is notable that at the same point in July 2015 that the APA forbade its members to collude in torture,[77] the GMC was announced to be in process of credentialing the UK psychological therapists whose treatment of trans people parallels that of psychological torture.[78]
2. Provision of elective counselling support, from without the current community of psychological therapists. This will require support from Health Education England as a specific development project.
3. Transfer of responsibility for trans health care from the Royal College of Psychiatrists to the leadership of the Royal College of Physicians, working collaboratively with the Royal Colleges of Surgeons and the Royal College of General Practitioners.
4. Reform of the General Medical Council’s policies and processes for dealing with complaints from trans people.
5. Approval and licensing for use all of the medicines that are required by trans people and ensuring that their prescription is via patients’ GP.
6. Elective prescription of hormone ‘blockers’ for adolescents, on the same basis of ‘Gillick competence’ that other medications are prescribed.
7. Elective prescription of bilateral mastectomy for men on the same basis as for women.
8. Removal of coercion into sterilisation by ensuring that all surgeries are truly elective, in line with Montgomery v Lanarkshire Health Board.
9. Revision of the medical curricula at undergraduate, postgraduate, and CPD levels to reflect current scientific and cultural understandings, and to include a compulsory reorientation briefing as part of reaccreditation for all UK doctors.
10. Compulsory CPD to reflect current scientific and cultural understandings as part of diversity updating for all NHS staff.
63.         The key remedies for legal change are:
1. A return to correction of Birth Certificates, with the restoration of a rubric that would be common to all Birth Certificates, such as ‘The above particulars incorporate any subsequent corrections or amendments to the original entry made with the authority of the Registrar General’.
2. Removal of all and every requirement for disclosure for any purposes whatsoever.
3. Removal of all third party legal influences on a trans individual’s right to decide to assert their identity as trans, including the so-called ‘spousal veto’.
4. Legal recognition of the scientific fact that biology provides three broad positions, female, intersex, and male, through, for example, the restoration of passports without a gender marker, and the introduction of an elective third gender marker on other formal documentation.
64.         A key remedy for social change is the creation of a Trans Equality Commission to enable government agencies, community groups, regulatory and advisory bodies, and appropriate charities, to discuss key issues together, and thereby to work both mutually and separately to achieve equality for trans people. Its objectives might include:
1. A national project to collect history from survivors of the trans eugenic project, to enable them collectively to share experience, to recognise and respect their histories as culturally important, and to support the growth of a UK trans culture. It is a matter of mutual respect that the silenced voices of generations of people be heard.
2. Inclusion of trans history as a compulsory element of the UK schools national curriculum, linking it to organisational support for trans children, adolescents, their families, and their friends.
3. Inclusion of trans history as a compulsory element in a mandatory CPD programme for all workers in public services and their contracting organisations, front-loading the programme for new entrants to the sector.
4. A specific project working with the Independent Press Standards Organisation [IPSO] to educate the media industry and ensure that hate writing, and the cultural genocide it supports, comes to an end.
65.         Only by this kind of national communal effort will trans people gain the support, admiration, appreciation, and nurturance they deserve. Without truth, justice, and healing, there can be no genuine reconciliation. Reconciliation is not about closing a chapter of the UK’s past, but about opening new pathways to understanding that are forged in truth and justice. Knowing the truth about what has happened and is happening to trans people does not necessarily lead to reconciliation in and of itself, even after every civil liberty has been restored, and every medical abuse removed. Yet, the importance of truth telling in its own right should not be underestimated; it restores the human dignity of victims of violence and calls governments and citizens to account. Without truth, justice is not served, healing cannot happen, and there can be no genuine reconciliation
66.         Ultimately, the move towards reconciliation and restitution must be made by each individual survivor. Society cannot restore lives that have been compromised, families that have lost members, careers that have been destroyed, or human potential that has been brutally compromised. But it can create a set of preconditions that will allow a displaced, abjected, lost minority to recognise its own self-worth, the validity of its choices and identities, and to begin to believe that it deserves the respect that it has always been denied.
67.         These are difficult paths to follow, challenging for the majority of UK citizens, who are not even aware of the abuses that have been perpetrated in their name, and requiring heroic efforts, perhaps, from the survivors of social exclusion. But a humane, democratic, diverse society has no alternative: it is a debt outstanding to every trans person whose freedoms, careers, and potential have been lost, and to every family that has suffered those losses with them. Reconciliation and restitution are a moral imperative.

Annex A: Ewan Forbes

68.         In 1995, following the failure of a Judicial Review to correct trans people’s Birth Certificates, the defendant’s solicitor in Corbett v Corbett, Terrence Walton, disclosed the existence of a case prior to 1970. He said that:

There had been a case preceding Corbett v Corbett, in which everyone involved had been sworn to secrecy and the records of which had been removed from the public domain: it had been agreed by participants that this was the last occasion that the birth certificate of a transsexual would be corrected ‘since some things are more important than the rights of ordinary people’.[79]

69.         The case referred to was that of Ewan Forbes, whose change of sex in 1952 was reported in his obituary, but whose involvement in a legal action to decide the succession to the title of Lord Sempill was nowhere recorded in Scotland’s published legal records, or in the indexes of its Public Records Office:

There is no record of the hearing in the published volumes of the Court of Session. Nor is the case recorded in the Court of Session's Minute Book, its Extracted Processes, or its Unextracted Processes kept at the Scottish Records Office. A telephone inquiry to the Court of Lyon in Edinburgh established that, according to their file notes, the decision on the challenge to Forbes's succession was given by Lord Hunter at the Court of Session on 29 December 1967. However, they have no documentation which is in the public domain. A postal enquiry asking for a copy of the Lord Advocate's decision in the case brought no reply from his Department at the Crown Office in Edinburgh. A telephone inquiry to the Registrar of the Baronetage at the Home Office in London, asking if they could provide a copy of the direction given by the Secretary of State or advise where it might be viewed was similarly unsuccessful.[80]

70.         Forbes’s Birth Certificate shows his sex as male, and the small print below the entry says ‘The above particulars incorporate any subsequent corrections or amendments to the original entry made with the authority of the Registrar General’. It is clearly a corrected Birth Certificate.

71.         Correspondence between Dr Lynne Jones MP and Baron Mackay of Drumadoon, the Lord Advocate, and thus the most senior legal officer of the Crown in Scotland, established that ‘some relevant documents’ existed for the Forbes case but in the Lord Advocate’s view, ‘it would not be appropriate for me to let you see copy papers or indeed disclose the details which they contain’.[81] Further correspondence to Dr Jones, a year later, in December 1997, from the Lord Hardie, who took over the office of Lord Advocate, reiterated that ‘I do not consider that it would be right for me to release any of the documents or to disclose the details they contain’ and asserted that:

the Forbes case does not bear to involve any element of transsexualism as I understand the term [...] There was no indication of any change (whether by surgery, treatment or otherwise) of sex or predominance of sex [...] merely a doubt which the judge resolved.[82]

72.         In fact, the proceedings made it clear that hormone treatment with testosterone – the standard treatment for a trans man - had been habitual and frequent for Forbes. Further inquiries, both from Dr Jones and members of the trans community, enabled the Scottish Records Office to discover relevant documentation for Ewan Forbes in 1967, which had apparently been misfiled with documentation relating to a query from his heir. [83] No explanation was given for the Forbes case being unindexed and unrecorded in its own right, nor was it made clear how documentation for such a famous case could have been so easily mislaid, especially since the Public Records Office and the Lord Advocate’s office had been in regular correspondence with Members of Parliament and members of the public, demonstrating the weight of public interest in the matter.

73.         Both parties had exercised their right to retain the documents they produced for the hearing, and so the remaining records were limited. The facts of the matter are stated clearly, however. Ewan Forbes was born on 6 September 1912 and:

in about 1952 ‘craved the Sheriff of Aberdeen, Kincardine and Banff at Aberdeen to grant warrant [...] to make an entry in his Register of Corrected Entries [...] substituting the Christian name “Ewan” for the Christian name “Elizabeth”, and the sex letter “M” for the sex letter “F”.[84]

74.         At the age of forty, Forbes had his Birth Certificate corrected. The contention of his cousin, John, who brought the case to support his application for succession to the title, was equally clear – that Ewan Forbes ‘is now and has all along been of the female sex in the physical, anatomical, physiological and genetic meanings of that term’ while Ewan himself asserted that he ‘is now and has all along been of the male sex’.[85] It is precisely the same contest of views that reappeared in Corbett v Corbett, with the same point to be determined. Interestingly, a later handwritten addition to the document inserts the words ‘in respect that he is a hermaphrodite with predominant male characteristics’ into Ewan’s testimony, a destabilising of the narrative that reflects the considerable confusion that attended the legal hearing and the disputed evidence presented there.

75.         One part of the proceedings provides evidence that favours Ewan’s opposer. Ewan’s genitalia are defined as female; his chromosomes are XX; his breasts showed ‘normal’ female development; ‘a purposeful search’ to ‘find any evidence of testes’[86] was unsuccessful; both a uretha and a vagina were clearly present; his sister was clear that he had menstruated as an adolescent; fertilisation of a female would not have been possible for him; and with ‘a general anaesthetic and opening the individual’s abdomen – it would be surprising if some ovarian remnants were not identifiable’, although given Ewan’s post-menopausal age of 55, ‘positive identification might be a little difficult’. [87]

76.         A key focus of the trial was on tissue samples. The narrative is that in September 1966, three months before the baronetcy became available, Ewan learned that his wife’s nephew had been operated on for an undescended testicle, which turned out to be pre-cancerous. This focussed his attention on a swelling in his own groin, and when he underwent an independent medical examination, carried out by a small team of doctors led by Professor Strong, in November 1966, to provide evidence for the trial, Ewan drew Strong’s attention to the swelling, suggesting that it might be an undescended testis. However, Strong’s report was clear that no evidence of testes was found, even after a ‘purposeful search’. Ewan had agreed to the independent medical examination from Professor Strong as a quid pro quo for his cousin agreeing to a Summary Trial, held in camera, rather than trial in open court, to avoid publicity. An additional doctor had joined Professor Strong’s team and had injected Ewan with anaesthetic, hurting his arm and causing numbness in his fingers. Since this was clearly not a local anaesthetic to take tissue samples, it appears that Ewan may have been unconscious during the examination, which might then have been very ‘purposeful’ indeed, suggesting that had there been a testis its presence must have been discovered by internal or external examination.

77.         In January 1967, after Ewan had received John’s claim to the baronetcy, he visited Professor Polani in London, to learn more about intersex conditions. Subsequently, during a fit of bronchial coughing, Ewan explained that an undescended testicle had suddenly descended and turned the swelling into a protrusion. Ewan’s Birth Certificate had been corrected at a period when the Harry Benjamin school of medical thought predominated, and where his condition was accepted as intersex with an endocrinal origin, resulting in a different neurology to the rest of his biological development. By 1967, the medical turf-wars had swung towards psychoanalytic views such as Stoller’s, of a mental illness, with an etiology in damaging childhood psychodynamics, and UCLA’s infamous clinic had started to ‘cure’ so-called ‘sissy boys’ and ‘tomboy girls’, from 1962 onwards. Since it was very material to Ewan’s circumstances, it may be inferred that Professor Polani had updated Ewan on this change in medical fashions, from neuroendocrinology to psychopathologisation, when Ewan consulted him in January 1967. As someone with a congenital neuroendocrinological condition, it was reasonable and right to correct Ewan’s Birth Certificate. However, it was not reasonable or right to correct his Birth Certificate if childhood trauma had brought on a delusional mental illness, that was curable by the psychological therapists at UCLA’s Gender Identity Clinic. To survive a challenge to his identity and status, Ewan would have to demonstrate that he was intersexed according to the new criteria set down by the winners of the medical turf war, which would otherwise ‘prove’ that he was mentally ill. Perhaps it was that information which produced the testis, and if so, Ewan may be applauded for an imaginative and resourceful resistance to a sinister and wholly inappropriate psychopathologisation.

78.         Ewan said that he performed self-surgery to take a specimen of the lump for biopsy, on 19 January 1967, but unfortunately the private pathologist to whom he sent it, had a heart attack and so the specimen was unexamined. On 3 March 1967, Ewan carried out a second self-surgery, cutting with remarkable precision in precisely the same place, and sent the specimen under the name of Dr Manson, for biopsy by Dr Stalker, Reader in Pathology at Aberdeen University. Dr Manson had previously been Ewan’s Assistant, in Ewan’s General Practice, and Dr Stalker and Ewan had attended Aberdeen medical school together. On 28 March 1967, Ewan attended Dr Manson’s surgery, with the Reverend Reid as a witness, for Manson to take a second tissue sample, and Manson noted that there was a scar above the site from which he took the tissue sample. Subsequent examinations, by other medical witnesses in the trial, were unable to palpate that area, or establish any information about the lump, because it was bandaged and tender from those surgeries. Ewan explained his self-surgery as being actuated by a desire to move the case forward, combined with a concern that he might have the serious medical condition of Congential Adrenal Hyperplasia [CAH], a possibility suggested by Professor Strong’s report. Because Strong had found absolutely no evidence of a testis, CAH was a possibility he had suggested to account for Ewan’s virilised clitoral development, which was obviously a result of his use of testosterone. However, Ewan’s long-term treatment with testosterone appears to have been admitted only during the hearing and thus was not available to Strong, as medical evidence, at the time of the examination.

79.         The chain of evidence, between the tissue samples being taken and the biopsy being performed, was unclear: they were received by an unknown Senior Technician and passed on to a similarly anonymous Junior Pathologist, to prepare, before being examined by the witnesses giving evidence. Considerable questioning concerned the authenticity of the samples, and it was confirmed scientifically that they were human, but could have come from either an adult or a child, and might be from one or more people. As well, the specimens were very unusual in being ‘substantially nearer to normal than the average run of mal-descended testes,’[88] placing further doubt on their authenticity. There was confusion about the nature of the tissue: the first set of specimens were both of immature testis but the second set of specimens included ‘a portion, probably a third of a mature testis’, apparently obtained and ‘attached merely as a control for a stain reaction.[89] The Judge, Lord Hunter, was clearly unsettled by this contaminated and questionable evidence, blaming Press interest in the case for ‘a degree of secretiveness in connection with the taking of certain biopsies which might have resulted in evidence of facts of a most important and material character being left in doubt’.[90] He was clear that the evidence based on the supposed testis was inconclusive.

80.         It was a scenario that invited speculation. The absence of any real chain of evidence means that the biopsied samples could have come from anywhere. The slides examined by the witnesses may or may not have been the slides sent in by Ewan and Dr Manson. Further, self-surgery and the use of a close friend to take the second tissue sample meant that they or may not have come from Ewan: it is possible that Ewan’s self-surgery might have inserted a tissue sample he had obtained, and created a false supposed testicle for Dr Manson to discover, especially given the astonishingly unlikely event that an undescended testicle would suddenly – not to say conveniently – appear at the age of 55. Not only was the pathologist who examined the slides a former co-student of Ewan’s, he could not verify that the samples he viewed actually came from Ewan – there was no DNA testing – and the nameless Senior Technician and Junior Pathologist in the chain of evidence did not give testimony. There was no way of verifying that those two people had been part of the chain of evidence, or if they even existed, or if they or someone else had tampered with or replaced the tissue samples that had been prepared. The interrelated spheres of influence Ewan occupied, as peer, local laird, and doctor; the parochial nature of the tissue examination, taken by Ewan’s friend and former employee, examined at Ewan’s own medical school, Aberdeen, by a former fellow-student, and where he still had many friends; Ewan’s idiosyncratic self-surgery, and the inability of any independent medical examination to confirm the existence of the testis; all cloud the objectivity of the biopsy evidence and destabilise its narrative.

81.         There was considerable hypothetical discussion as to whether Ewan might have ovarian tissue, if surgery was carried out to look for it. However, given that his age, 55, was post-menopausal for women, it was felt unlikely that anything substantial would be found, and in the event, none was identified. Ewan explained that he had been taking testosterone for fourteen years, a fact surprisingly dismissed by Professor Roth, a psychiatrist with a special interest in intersex as ‘of no material importance’.[91] Written testimony from Ewan’s late sister was produced, asserting that Ewan had menstruated regularly, something that Ewan strenuously denied. Ewan had no identifiable chromosomal complications – he was XX – but there was much exposition of conditions such as Kleinefelter’s (sic) syndrome and Turner’s syndrome, as well as CAH and ‘this twilight creature hermaphrodite’.[92]

82.         Ewan’s external genitalia became a second key focus for the trial. Described variously as an enlarged clitoris and a penis, the phallus[93] was one centimetre in diameter and one centimetre in length, with speculation that it might be larger under arousal. This was combined with a perineum ’projected further forward than is normal in female subjects’.[94] Under an unpleasantly prurient cross-examination, Ewan’s wife explained that she experienced ‘a normal complete reaction and satisfaction’ in intercourse, experiencing orgasm ‘on all occasions’, and estimating their average frequency of intercourse as ‘twice a week’,[95] while confirming that Ewan had an emission during intercourse from the area to the rear of his phallus. The size of Ewan’s phallus is consistent with the effects of testosterone – modern testosterone treatment would expect to develop a phallus of up to 4-5 cm, especially if accompanied by metoidioplasty. [96]

83.         Very significantly, evidence of Ewan’s ‘psychological sex’ consistently identified him as masculine or male – the terms were used interchangeably. This was crucially important since, as Professor Roth put it, ‘the psychological forms of intersex probably have some underlying constitutional basis which remains yet to be defined, so many authorities accept psychological intersex, and it is clear therefore that they accept psychological criteria for classifying individuals’.[97] Constitutionally-based ‘psychological intersex’ – ‘brain-sex’ as it is now popularly called – was vital to the judge’s decision, reflecting the importance of its biological etiology, as Harry Benjamin had always maintained.

84.         As the hearing progressed, though, a further narrative emerged from Ewan’s evidence. Ewan said that his sister, Peggy, had been in financial difficulties and had told him ‘that my cousin had inferred that if she would help him he would take care of her financially’.[98] Ewan’s solicitor, Mr Haldane, testified that Peggy had contacted Ewan, and ‘expressed a wish for a reconciliation between her and my client’ and on Ewan’s instructions, ‘I rang her up and […] she confirmed that that was the case’.[99] Peggy had dined with Ewan ‘and she also informed me she was shortly to receive the First Petitioner’[100], that is, John. Effectively, there was a bidding-war for Peggy’s evidence. At stake was a letter Peggy had recently written to John, in which she had stated unequivocally ‘I always regarded Dr Ewan as my sister and I feel quite sure there was never doubt as to her sex’[101] and ‘she had her periods regularly just the same as any other girl (Miss Deal would confirm this. I give you her address later)’.[102] According to Ewan, when Peggy dined with him, she said that ‘she was very sorry that she had written something, but it was written and she could not take back what she had written because she had already done it’[103], and Mr Haldane confirmed that Peggy ‘neither said that it was true or false, but she said “I can’t withdraw it”’.[104] Tragically, driving to meet Ewan at his house for a second discussion over dinner, Peggy died in a motor accident, and the proceedings do not record whether or not Miss Deal, who was living in Essex, confirmed or refuted the account of Ewan’s menstruation given in Peggy’s letter, or even whether she was consulted. Ewan dismissed Peggy’s account of his periods by saying that their lives had always been very separate, that perhaps their mother had given a false account of his menstruation to Peggy to save social embarrassment, and that in any event, Peggy’s account was untrue.

85.         It was left to Lord Hunter to pronounce on this spectacle of suspect evidence, unsupported assertion, aggressive self-interest, and tragic death. First, Hunter asserted that there must be a separation between medicine and the law:

While from a medical point of view sex is probably a spectrum, with the true hermaphrodite in or near the centre and with gradations outwards in the direction of the typical male towards one end and the typical female towards the other, the law, which is concerned in a practical way with the sexual role of the individual in society, must in my opinion attempt to draw a firm line, which leaves males on one side and females on the other according to the sexual characteristics which predominate in the person concerned.[105]

86.         Turning to Ewan’s case, Hunter decided that although no ovarian tissue had been identified, there might have been some, and that although the existence of a testis had been perplexing, he accepted the tissue samples presented. Peggy’s account had perhaps been confused, he decided, by prudish stories that her mother may well have told her. In any event, Ewan had a male phenotype – that is, to the general eye, he looked male - and so his chromosomes were irrelevant. In particular, though, Hunter said:

I regard the evidence of the wife of the Second Petitioner [Ewan] as being of great importance. Although she obviously might have a strong interest in the matter, I was impressed by both the content and the manner of her evidence. The fact that in sexual intercourse the Second Petitioner is, despite his physical handicaps, able to penetrate with his phallus the vagina of his wife and to function mechanically as a male to the satisfaction both of himself and his partner and to the point of orgasm and emission, is in my opinion of greater importance than the predominantly female external appearance of his genitalia.[106]

87.         Crucially, Hunter said, ‘the fact that the psychological sex is male is in my opinion an adminicle of evidence of some importance’[107]– an ‘adminicle’ being an item that evidences something that is absent – and this verified the existence of all other missing evidence. In other words, Ewan’s male ‘pychological sex’ – his neurological development, in Harry Benjamin’s terms, or ‘brain sex’ as it is now popularly called - was decisive, in establishing that Ewan’s legal sex was male.[108] Neuroendocrinological development was the determining factor, the adminicle, that evidenced sex, irrespective of chromosomes or genitalia or any other physical characteristic. Accordingly, since ‘there is in the present case overwhelming evidence that the psychological sex of the Second Petitioner is male’,[109] Hunter found that Ewan Forbes could inherit a title limited by primogeniture.

88.         Read back from a 21st-century perspective, and stripped of unsupported assertion and chicanery, the narrative presents a straightforward case of a trans man, who took testosterone, perhaps from adolescence onwards, thereby developing a virilised phallus, and who had his Birth Certificate corrected on the authority of letters from three doctors. He then married, and enjoyed full legal rights in his male sex. The only surprise is that his position was contested by his cousin.

89.         The most curious aspect of the case, however, is not its content, or even the secrecy in which it was kept by government and its agencies, but its contrast with Corbett v Corbett. The same evidence that was accepted for trans man Ewan Forbes was refused for trans woman April Ashley. April was clearly as capable as Ewan of enjoying sexual intercourse that was satisfactory to her and to her partner, but while Ewan’s phallus was acceptable for full intercourse, April’s vagina was ‘physically incapable of consummating a marriage’ because it was ‘the reverse of ordinary, and in no sense natural’[110]. April’s history shows her to have been neurologically intersexed, in Harry Benjamin’s definition, just as Ewan was, by ‘the influence of certain sex hormones on particular cells in the hypothalamus, a part of the brain closely related to the pituitary gland, in early infancy,’ but while that evidence was accepted for Ewan, it was refused for April. Ewan’s medication with testosterone was considered to be irrelevant to his physical development, while April’s medication with oestrogen was material to proving she was not a ‘real’ woman. Ewan’s unprovable ovaries and suspicious testis were accepted into existence, while April’s possible Klinefelter’s syndrome was dismissed because she could not produce biopsy evidence of unusually small testes, having had orchidectomy ten years earlier. Her phenotype and her social orientation were clearly female, in the same way that Ewan’s were clearly male, but April’s femininity was censured as a ‘pastiche’ while Ewan’s masculinity was never treated as anything but genuine. At every turn, April was denied the ‘adminicle’ which Ewan was granted. To put it another way, and to bring that legal device into the moral sphere, Ewan was granted a compassion that was denied April, who was treated cruelly and ruthlessly. It is this absence of compassion, subsequently extended to all trans people, that finally marks out UK government’s project as eugenic.

90.         Because John Forbes challenged Lord Hunter’s findings, ‘the dispute was taken to the Home Secretary, in whose office the Roll of baronets is kept by Royal Warrant’.[111] The Home Secretary, James Callaghan, consulted the Lord Advocate and found in Ewan’s favour in December 1968, months before Arthur Corbett started his proceedings against April Ashley. But no details were available of the process by which it was decided the case could be heard secretly, and no records of the court proceedings made accessible. These were ‘exceptional and disquieting circumstances’, as The Glasgow Herald put it:

Not only were the proceedings taken before a Judge in chambers but his judgment was never issued to the press and court officials were placed under orders of the strictest secrecy. Inquiries by journalists at the time brought them against a wall of silence.

              The most that could be learned was that the Judge and his clerk heard the case not even in Parliament House but in a solicitor’s office and that no papers in connection with the case were filed at the office of the court.

              In the official register of petitions kept in the office it was recorded that a petition had been lodged in the name of Forbes-Sempill under Section 10 of the Administration of Justice (Scotland) Act, 1933, but the columns which would normally contain a record of subsequent stages in the proceedings were left blank. […] Summary trial is not permitted in cases affecting the status of any person, and is usually employed where a quick decision, with no appeal, is required.

              The fact that the new baronet had to be enrolled in a public register ensured that the case could not indefinitely be kept secret and tends to confirm the anxiety felt by some legal practitioners, who knew about the Court of Session proceedings at the time, about whether official measures to hush up the case went too far.[112]

91.         Ewan’s case was brought under Scottish Law, and April’s under English, so Ewan did not set a precedent for England. But the radically different interpretation of the evidence in the Forbes case would have been persuasive, had April and her solicitor not been forbidden to refer to it, and certainly, after Britain joined the European Community in 1973, the Forbes case could have been used in a European court, to support an English action. Its removal from public sight crippled the cases for Birth Certificate correction brought in the European Court of Human Rights in1980 by Mark Rees, and in 1990 by Caroline Cossey. Government secrecy appears to have placed private interest above public policy, in a display of ancien régime aristocratic privilege, expressed as primogeniture protectionism.

Professor Zoë Playdon

Emeritus Professor of Medical Humanities

University of London

12 October 2015