The Secret 53-Year-Old British Case That Could Have Legalized Trans Identity

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By Sarah Schulman

And the Unwritten History of the Trans Experience
By Zoë Playdon

As the ongoing war against abortion rights tells us, people who are not in power have no guaranteed stability of status. When autonomy is granted and easily taken away, whole groups of citizens may experience unpredictable swings in their legal rights, social customs and ability to be heard. Zoë Playdon’s erudite, passionate, occasionally frustrating, yet ultimately persuasive new book, “The Hidden Case of Ewan Forbes: And the Unwritten History of the Trans Experience,” encapsulates this reality by telling three stories at once.

At the center is a biography of Ewan Forbes, a Scot of wealth and lineage born in 1912, assigned female at birth and raised, at least initially, as a girl, and of his struggle to be seen by the state as the man he knew himself to be. This account is contextualized by a rich and riveting social history of trans people’s rocky road to cultural acceptance in the West, from the early 20th century up to the current day. Within this frame, Playdon, an emeritus professor of medical humanities at the University of London, situates the specific story of the wavering right of trans people in Britain to correct their birth certificates. In this way she intertwines individual, social and legal history in a manner that is mostly illuminating. And she shows how fluctuations in the rights of trans people evolved in tandem and in conflict with those of gay men, women and lesbians.

Playdon argues that trans people benefited from the publication in 1886 of “Psychopathia Sexualis,” an influential medical book by the German psychiatrist Richard von Krafft-Ebing. The book was primarily intended, she maintains, for use by the courts, in order to help juries distinguish between people who engaged in criminal sexual behavior (gay men) and those who were merely biologically different (trans). Krafft-Ebing presented trans identity as a form of “physical intersex,” and argued that it should be accepted. Today we increasingly understand that sexuality, biology and gender can represent three separate experiences. But in the Victorian era, these three categories were collapsed into one. While gay men and lesbians were regarded as lawbreakers and subjected to awful medical punishments, trans people were seen as simply moving from one binary pole to another — from man to woman or vice versa.

In 1910, Magnus Hirschfeld, a gay German Jewish sexologist, published “The Transvestites,” in which he differentiated cross-dressing, trans and homosexuality while defending all three. He opened his Institute of Sexual Science in central Berlin in 1919, when Ewan Forbes was 6 and playing in the Scottish heather, already asserting his maleness. Hirschfeld worked closely with endocrinologists developing early hormone therapies. In 1931 his institute carried out the first documented gender confirmation surgery, a vaginoplasty for a trans woman named Dorchen Richter. The next year, 19-year-old Forbes moved to Munich for psychotherapy and hormone injections. He reported growing facial hair and developing acne, often associated with testosterone shots.

While trans women were far more numerous and visible in the climactic years of gay liberation between the 1960s and 1990s, Playdon shows us that in the 1930s trans men were overwhelmingly featured in popular news stories about “sex changes.” “Being trans was a mystery,” she writes, and “trans women, who were considered far rarer than trans men, were especially mysterious.”

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    All that changed when the Nazis came to power, and imposed their view of both transsexuals and homosexuals as degenerates. Gay men and trans women were made to wear the pink triangle, while lesbians and trans men got the black “antisocial” triangle shared with communists and intellectuals. All were sent to concentration camps. At the same time, psychiatrists working with the U.S. Army during World War II promoted the idea of homosexuality as a pathology and worked to eliminate queer people from American military service.

    In 1946, while Forbes was starting his career as a medical doctor in Scotland, a fellow physician named Michael Dillon, a British trans man, published “Self: A Study in Ethics and Endocrinology.” He argued that trans people are who they say they are; they are not pretending or passing. As Playdon paraphrases Dillon’s thesis, “They are both the same as and different from” other men and women, a complex concept of biological similarity and variability that ran counter to rigid ideas about gender, sex and sexuality that were to become both popular and legally inscribed in the postwar period.

    These two concepts — the individual’s self-perception and the punitive control of the state — converged in Forbes’s life in 1950, when he and Isabella “Patty” Mitchell, a Scotswoman and farmer’s daughter, decided to marry. Marriage would be illegal with a female indication on Forbes’s birth certificate. Using his wealth, position and connections to other powerful men, he obtained an “M” on his birth certificate in 1952 and proceeded to the altar. The wedding was held in the couple’s home, in what a local newspaper described as a ceremony conducted “in the greatest secrecy.” Forbes told his friends that he had corrected a “grievous error” that had occurred at his birth when he had been mistakenly registered as a girl instead of a boy.

    “Male-line primogeniture,” the British law guaranteeing that particular titles and land pass via inheritance through male heirs, has long been a foundational power grab for British men, and is, remarkably, still being debated in the case of some titled lines within the aristocracy. With his male gender certified on his birth certificate, Forbes was in a position to inherit his father’s estate. But there was one obstacle: his cousin John.

    According to the terms of Forbes’s father’s will, his estate and title (a baronetcy) passed to Forbes’s older brother, William, and, at his death, to his male offspring. In the event William had no sons (as was the case), the estate and title would pass to Forbes’s father’s brother or, if he had died, his male heir: John. Abetted by Forbes’s older sister, Margaret, who had a fraught relationship with Forbes and agreed to attest to his female status at birth, John filed a legal claim to the baronetcy. Reluctantly, Forbes decided to file a counterclaim. Not to do so, Playdon writes, “would be tantamount to stating that he was not the next heir because he was not a man.” (In an effort to placate John, Forbes had already handed over much of his father’s estate.)

    Before the title contest could play out in court, however, Margaret, a lesbian who lived with her female partner and was thus subject to the same indignities and threats that her brother wanted to avoid, reconciled with him and prevailed on John to agree to let the hearing take place in private.

    Playdon sees Margaret’s initial alliance with John as a betrayal, but Forbes’s lack of solidarity with his sister’s gender and sexual exclusion could be described in similar terms. Apparently it never occurred to him to protest Margaret’s own inability as a woman to claim either the estate or the title. She was killed in a car accident a few months before the hearing took place, and in 1968 the baronetcy was awarded to her brother.

    Britain’s system of common law is based on the “doctrine of precedent”; one key legal judgment affects all subsequent related decisions. So having all judgments publicly available is necessary for British people to know what rights they can rely on. However, because Forbes’s case — including the traumatic and humiliating process of having to provide evidence of his maleness in court — was heard in closed session before a single judge, the decision failed to be recognized as the precedent it should have been, becoming unavailable to future generations of trans people who found themselves in a similar predicament. In 2004, Britain passed the Gender Recognition Act, allowing citizens to change their gender. But rather than authorizing corrections to the original birth certificate, the law calls for the issuing of a second birth certificate, made out in the “acquired gender.” The implication, Playdon writes, is that “trans people are masquerading as real people, just as their faux birth certificates are masquerading as real ones.”

    In other words, the victory Forbes won more than 50 years ago has yet to fully translate to the lives of those who followed him. In the end, his inspiring and impressive commitment to self-define coexists with his failure to imagine the equality of women, including lesbians, in his own time, or how future trans people could have benefited from knowledge of his struggle — and his achievement.

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