The Curious Case of Ewan Forbes
On November 10th, 2021, I saw an article by Patrick Strudwick, publicising “The Hidden Case of Ewan Forbes” by Zoë Playdon.
The book concerns Ewan Forbes-Sempill, 11th Baronet of Craigievar who was registered female at birth in 1912 under the name Elizabeth, but in 1952 had his birth certificate changed to reflect his sex as male. This was permitted because Forbes was born with an intersex1 condition that was not apparent until later in life, meaning his sex had been wrongly recorded and required correction.
However, this altered birth certificate later triggered a dispute over Forbes’ true sex from his younger cousin John, who stood to inherit the Baronetcy if Ewan were found to be in reality female. During a trial process similar to arbitration Ewan was subjected to further medical examinations, and in 1968 was found to be male, and thus capable of inheriting the contested title.
Zoë Playdon’s new book, however, advances the following alternative history:
That Ewan Forbes, 11th Baronet of Craigievar, was not intersex, but in reality a female-to-male transsexual, and falsified medical evidence in order to obtain the original correction to his birth certificate and pass the necessary examinations during the subsequent legal challenge
That this was tacitly understood by Lord Hunter who presided over the trial, and who interpreted questionable evidence in a way that favoured Ewan Forbes to ensure that the title did not go to the cousin, who was seen as a “dissolute Londoner”
That in doing this, Lord Hunter had knowingly sanctioned a transsexual’s change of sex by allowing him to inherit a baronetcy
That this judgment was concealed by the establishment because the legal precedent of allowing a transsexual to change their sex would have effectively ended male primogeniture, and in turn would have enabled the accession of a transsexual to the throne
That had it not been covered up, it would have revealed that transsexuals had always been allowed to change the sex recorded on birth certificates by simple declaration, and thus the loss of this precedent set back the rights of trans people to self-identify their sex by decades
Shortly after the appearance of the book, various legal minds on Twitter started pulling apart the central arguments advanced by Playdon. In writing this I am drawing in particular on detailed and insightful threads by @mrsSkys, Resjudicatamyfoot, Barbara Rich and Scott Wortley. I strongly recommend anyone wanting to understand the law at issue to go and read what these people have written, which forms a compelling case that I will do my best to outline.
The New Narrative
The theory that Forbes was in fact transsexual rests on Playdon’s interpretation of Forbes’ memoir, newspaper cuttings and transcripts, all woven together to support this narrative. In this version of history, Forbes becomes an early model for paediatric transition, given cross-sex hormones to avoid the “wrong” puberty:
Playdon then suggests that Ewan Forbes was on testosterone for years during adolescence, seeming in large part because he travelled around Europe with his mother:
Playdon alleges that in 1952, Forbes used his status and connections to obtain a changed birth certificate - despite being female - and when this was subsequently challenged, it is claimed that he was able to “hoodwink” the Court of Session and medical examiners thanks mainly to his alleged long term use of cross-sex hormones, combined with a fraudulent testicular sample. Much of the summary trial itself is presented incredulously in the book as an obvious sham, engineered to ensure that the “right” person inherited the Baronetcy.
Things Fall Apart
Much could be said about the plausibility of this Playdon’s story, which is largely a recycling of decades-old rumours about Forbes. Conjecture about childhood transition and fraudulent tissue samples seem to have no real evidence, so while it is possible that Forbes was transsexual, this really is just speculation. Playdon’s theories about Forbes carry little weight compared to the official record that he was in fact intersex.
Leaving all that aside though, the fundamental problem is that it is irrelevant when it comes to Playdon’s claims about the law.
Even if Forbes truly was a female-to-male transsexual, the legal determination was made on the basis that he was intersex, as stated in Lord Hunter’s opinion in the case transcripts:
Taking all the criteria together it is my opinion that the Second Petitioner is a true hermaphrodite in whom the male sexual characteristics predominate, and that this has been the position throughout his life.
This is important, because the legislation (The Registration of Births, Deaths and Marriages (Scotland) Act, 1854) only permitted a change of birth certificate to record an actual error. Transsexuals were simply not permitted to do this, because it was not considered a correction. If Ewan Forbes was indeed a transsexual, that means that he changed his birth certificate unlawfully in 1952, as Playdon describes:
Contrary to the claims in the publicity that this was akin to self-declaration, this process required medical and judicial oversight to confirm that an error had in fact been made.
So even if Playdon’s assertions about Ewan being transsexual are correct, the narrative in the book provides no general route to self-declared change of sex, but simply demonstrates that members of the establishment are capable of circumventing the law. This is not a “right” by any stretch.
In fact, it is generally understood that the Forbes case strengthens the argument that a birth certificate can only be changed in the event of error. See, for example, this explanation by Dr Carolynn Gray, from her PhD thesis:
This case […] further strengthens the legal separation of those who could be given a change of legal sex and those who could not: those who were transsexual could not change legal sex as their sex at birth had been correctly registered whereas those who were intersex could obtain such a legal change as their identity did not become apparent until some time after their sex was registered and therefore it could be argued that the initial registration was wrong and the subsequent change of the Register of Births was merely a corrective action.
This thesis is itself cited in the book, so Playdon must have been aware of this contradictory legal interpretation.
And contrary to Playdon’s assertion that the case was hushed up by the establishment, as Scott Wortley pointed out the privacy was due to the parties’ choice to employ the process of summary trial. Not only that but even if it weren’t, as a first instance decision in Scotland, this would not have set any legal precedent that would bind the Court of Session, let alone the High Court of England & Wales. [edit 17/12/2021] Scott now has a lengthy post identifying numerous issues relating to Scots law in greater detail.
After all of this legal hole-poking, it is worth noting that the suggestion of fraud is not novel either - the same possibilities were raised and dismissed in the case of Sheffield & Horsham v The United Kingdom more than 20 years ago. This involved two male-to-female transsexuals (Rachel Horsham and Kristina Sheffield) who ultimately lost their appeal to the ECHR that the UK government should permit them to change their birth certificate. This case provides the launching point for the whole book, and as Playdon writes:
The case of Ewan Forbes was included in submissions and discussed in a report in January 1998 by professor Louis Gooren, which was based solely on reading these transcripts. He suggested that the testicular tissue provided might not have come from Ewan Forbes at all:
How sure can we be that the testis biopsy samples provided by Ewan Forbes-Sempill were of himself? The biopsies performed by Dr Manson were delivered to the laboratories by Mr Reid. None of the examiners can actually testify that the provenance of the tissue samples is Ewan Forbes-Sempill. Dr Manson may have acted in good faith but he has had no control over what samples were in reality delivered to the laboratories after he had performed biopsies. It remains a question why Ewan Forbes-Sempill has not subjected himself to the standard procedure of having a biopsy in the hospitals where the later examiners were working. Apparently there was an interest in directing this procedure personally.
Rachel Horsham was Gooren’s patient, and it is not unreasonable to say that Gooren produced a theory about how a female-to-male transsexual might have fooled doctors, in order to support his own patient’s claims, but ultimately what he proposes is pure speculation. Within this 1998 report - which Playdon must have been aware of - we find the origins of this key theory from Playden’s book, yet despite several citations of other work by Gooren this submission is strangely not mentioned directly.
Meanwhile Playdon stated that Forbes had been unavailable for use in this case:
Before caveating some time later after being challenged that it was unavailable for effective use:
Which sounds more like Playdon was aware that it was actually used, but unhappy with how it went - understandable, seeing as it advanced the same argument as Playdon’s book, but that this argument was rejected. The ruling reiterated the only grounds for changing a birth certificate were to correct an error:
The fact that it may become evident later in a person’s life that his or her "psychological" sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.
Playdon’s theory that Forbes was transsexual, not intersex, is unverifiable. The suggestion that examiners were fooled by exogenous hormone treatment starting in adolescence along with testicular material that was falsely obtained is pure conjecture.
Even if it were true that Forbes was a male-to-female transsexual who falsified medical evidence to change his birth certificate in 1952, it would only support a conclusion that the correction was unlawful.
Even if it were true that Ewan Forbes “hoodwinked” (p.211) the Court of Session by falsifying evidence he was male, it would only support a conclusion that he had acted unlawfully, not that the court had established a theoretical right to change sex or for women to inherit male titles.
Even if it were true that the case had established that theoretical right, it was not held in secret because the establishment feared the consequences to male primogeniture, but because the parties themselves chose a process of summary trial that demands privacy.
Even if it were true that the case was covered up, the judgment has no value taken as a precedent and - as a court of first instance utilising a summary trial procedure under Scots law - it would not bind the Court of Session let alone the High Court under the law of England & Wales.
With that, the central argument of the book - and the subject of all the gushing coverage it has received - falls apart. It does not matter whether or not Ewan was transsexual - the law considered otherwise, and that is what counts. There was no 50-year establishment-driven setback to “trans rights”.
So what is this all about, really? At the root, Playdon believes that transsexuals are a “kind” of intersex, brought on by an incongruity between “psychological sex” and “bodily sex”. Playdon wants to make the case that Ewan Forbes was transsexual and was knowingly permitted to change his birth certificate on the grounds that transsexuals are psychologically intersex.
Playdon put forward this idea in a 1996 blog post about Ewan Forbes on the Press For Change website, while speculating that the case might support a route to legal sex change:
Of course, the current medical viewpoint is that just such an error is made and that people treated for transsexualism are sexually indeterminate at birth.
In 1997 we see Lynne Jones MP describing transsexuals as a kind of intersex condition and also engaging in the same speculation about the importance of the Ewan Forbes case:
Third, the individual may be born with congruent internal and external genitalia but with an incongruent brain formation. At birth, there are no external indicators of the condition but typically following adolescence gender identity crystallizes out and remains constant thereafter.
the regulations for correcting birth certificates did not give ‘any sanction for recording changes which have subsequently occurred’ unless ‘the sex of a child was indeterminate at birth and it was later discovered when the child developed that an error had been made’. Of course, the current medical viewpoint is that just such an error is made and that people treated for transsexualism are sexually indeterminate at birth. The arguments that found favour in the case of Ewan Forbes’s succession in 1968 are clearly crucial, therefore.
Playdon was Jones’ constituent, and together they founded The Parliamentary Forum on Transsexualism in 1994. As an aside, so influential is Playdon on Jones, that eg. paragraphs 4.3 and 4.4 seem to be taken wholesale from Playdon’s blog, including an error in dating the Re X case as 1965, and not 1957.
The same view of “psychological sex” continued to be put forward by Playdon in subsequent decades, including to the WESC Inquiry on Transgender Equality in 2015, and in a submission to the Home Office working group on transsexuals in 2000:
I would advise government to treat transsexualism “as if it were” an intersex condition.
In the latter submission, professor Louis Gooren crops up again, claiming that:
a biological structure in the brain distinguishes male-to-female transsexuals from men.
Stephen Whittle in 2007 makes many of the same arguments as found in Playdon’s book, including that Lord Hunter set out with a preconceived idea to ensure that Ewan was found to be male:
The real and crucial issues in the Sempill case were whether a respectable Scottish country gentleman (Ewan) rather than a dissolute Londoner (John) should look after what is one of the finest and oldest landed estates in Scotland. It is clear from the court transcript that the judge, Lord Hunter, had to find a way of making sure the right decision was made, and the transcript is full of fantastic tales and premises.
In service of this, Whittle states that - given the inadequate physical evidence - Hunter favoured heteronormative sexual function and, again, psychological sex:
Finally as regards psychological sex, he held that there was overwhelming evidence that in Ewan’s case he was male and along with the other features it was an adminicle of evidence of some importance.
Whittle here also makes the same mistake as Playdon, dating the Re X case as 1965 instead of 1957.
In 1965, a previous Scottish case determined that people treated for transsexualism were not able to have their birth certificates amended. [Sheriff Court of Perth and Angus at Perth, X- Petitioner]
Here you can see how far back these arguments go and why they are felt to be so important. If activists can demonstrate that Ewan Forbes was a transsexual and that Lord Hunter knew, but considered “psychological sex” to be a determinant factor in permitting a change of birth certificate, then they hope to build a case that anyone who can claim a “mismatch” between the “sex-of-the-mind” and “sex-of-the-body”, can claim to be a “kind of intersex”, just like Ewan Forbes, and have their birth certificate “corrected”.
This is the key argument Playdon puts forward in The Hidden Case of Ewan Forbes:
All of which is in contrast not only to the established law on permitting a change in birth certificate but also to Lord Hunter’s stated opinion in the transcript:
I am far from saying, to take an example, that a finding that the psychological sex of an individual was male would ever justify a conclusion that a person was legally a male
This whole line of argument is not only a gross misappropriation of people who are actually intersex, it is also wrong in law, and as biologically essentialist as it gets.
Shaping The Narrative
At this point you may be tempted to visit Wikipedia to check the veracity of these claims, or even find out further background to this story. If you did so, however, you would find a page that was substantially rewritten, starting on the UK publication date of November 11th, to accord entirely with the narrative of Playdon’s book. The last version before this took place is here. Since then, in the space of a few days, the page has been altered to refer to Ewan Forbes throughout as a transman, to reiterate Playdon’s interpretation of the legal impact, and also added to categories such as LGBT People From Scotland, LGBT Nobility, Transgender and transsexual men, Transgender and transsexual physicians, 20th Century LGBT People, etc.
On November 12th, a user purporting to be a member of the family made this plea on the talk page:
This person’s attempts to undo the changes were, however, reverted by the users that made them. Further attempts to restore the original were reverted, and the page protected to prevent further changes.
Books are regarded as high-quality sources by Wikipedia, so it is very difficult to contradict them simply by pointing at the primary sources and claiming they are being misrepresented, especially when digital copies of those primary sources are hard to come by or non-existent.
In order to counteract the narrative now entrenched on Wikipedia, it is possible this book would need to be withdrawn, or something of equivalent standing published which demonstrated its incorrect interpretation of law. But how long would that take, if it ever happens? How can that undo the glowing reviews, interviews, blanket coverage, a sympathetic miniseries in the offing, and full spectrum digital rewriting of history on the most popular online source of information? How many more column inches or minutes of airtime will be filled based on reading and believing these sources without question?
Among the many other reviews that appeared to mark this book’s publication, The Times Literary Supplement gave Playdon’s associate Christine Burns space to reiterate Playdon’s theories about a coverup and suggest again that a substantially easier process for legal change of sex existed in the past. The common theme across the publicity is that the Forbes case represented a historic, establishment injustice perpetrated against trans people.
Here is how Strudwick described the case on Twitter, focusing attention on the effect the Forbes case had on removing the rights of trans people:
Playdon gave the following presentation for The Elliott Bay Book Company:
This is the narrative that Playdon is advancing, and it is the same as it has been for decades, despite the fact that Re X established this was not the case in 1957.
As Barbara Rich says:
After a certain point, it doesn’t matter whether it is actually true that the case of Ewan Forbes demonstrates how trans people had their rights stolen from them for 50 years - if enough people believe it (or don’t question it) it will become true enough to persuade politicians to change the law and correct this perceived historic injustice.
Unfortunately, the technological medium that so many of humanity’s minds are currently pickled in allows such narratives to spread instantaneously and unchallenged. I am concerned about the susceptibility of open platforms to be overtaken by obsessive cliques with time on their hands, meaning that any gatekeeping can actually work in the other direction. It isn’t just that the lie travels round the world before truth has got its boots on - but the lie can lock truth in the house, barricade the doors and call anyone who questions it a hateful bigot.
Difference of Sexual Development (DSD) or Congenital Condition of Sexual Development (CCSD) are typically preferred terms for such conditions, however “intersex” is the term used more commonly by Playdon and in the relevant historical documents so for clarity I use “intersex” thoughout.