Talk:Sir Ewan Forbes, 11th Baronet

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Date	Process	Result
May 31, 2009	Good article nominee	Listed

A fact from this article appeared on Misplaced Pages's Main Page in the "Did you know?" column on March 30, 2007.The text of the entry was: Did you know ...that a 1968 court challenge to the right of Sir Ewan Forbes, 11th Baronet, born "Elizabeth", to inherit his family baronetcy rested on the question of his gender?

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Court of Session action; article cannot be correct

The article describes a decision (here called a 'ruling') of the Court of Session in 1991 and then says "The ruling was appealed to the Lord Advocate, who referred the matter to the Home Secretary, James Callaghan. Callaghan finally ruled in December 1968 that Forbes was the rightful holder of the title, confirming the court's decision". This is visibly nonsense. Court of Session decisions are never, and cannot be, appealed to the Lord Advocate, or to the Home Secretary. They are decisions of a court, indeed the supreme court of Scotland, not a government department. That said, I've no idea what actually happened here- perhaps there was never a Court of Session case at all but some other sort of process? Who knows?46.208.190.86 (talk) 16:21, 10 November 2021 (UTC)

I think I've tracked down what happened in general terms, and I've corrected this section of the article. It seems that the court decision was not itself appealed (Barnes makes it very clear there was a court decision, albeit a very discreet one by a single judge), but that the subsequent decision to recognise Forbes as the holder of the title was challenged; the LA was then consulted by the Home Secretary, whose department (at the time) would have been responsible for the official roll.

I am hoping to get hold of Playdon's new book shortly, which sounds like it has traced all the technical details here, and hopefully that will shed a bit more light. Andrew Gray (talk) 19:47, 11 November 2021 (UTC)

Family Request

The family of Sir Ewan, being aware of renewed interest in this case, were concerned to see this article being used to disseminate political & ideological ideas. We are concerned that Sir Ewan's unique life is being used, entirely incorrectly, to push an ideology. We do not wish to participate in any ideology, as this is not who Sir Ewan was. Sir Ewan was not a "transgender man". Sir Ewan was a man, who's birth was recorded incorrectly due to medical knowledge of the time. We would, respectfully, ask that this article not be amended to record opinions as fact. — Preceding unsigned comment added by TheHonGwendoline (talk • contribs) 21:35, 12 November 2021 (UTC)

Much of this article is either wrong or pure speculation

Just as one example, the idea that the case was in some sense 'secret' is exploded by the fact that it was front page news in the Press and Journal, 4 December 1968, which will have been read by pretty well everyone and their dog in Aberdeenshire! See screenshot at https://twitter.com/BarbaraRich_law/status/1462825543796154375 .

More profoundly, it seems to be perfectly clear from the published opinion of the Court of Session that this was, as a family member says above, a case of a birth having been incorrectly recorded as female, with this being subsequently corrected. Sir Ewan was not in any sense, on the evidence led and discussed by the Court, a trans man. Playdon's book has been described as an 'audacious hoax' (see for example lengthy and referenced thread at https://twitter.com/Resjudicatamyft/status/1461277281444409345 and also https://twitter.com/Resjudicatamyft/status/1463034759861448705 )and that may well be a fair and complete summary of her claims. See also thread at https://twitter.com/BarbaraRich_law/status/1462825543796154375 .51.6.98.94 (talk) 15:31, 24 November 2021 (UTC)

Hard to find an online source for some of those screenshots, but the claim that Ewan was "a true hermaphrodite in whom male sexual characteristics predominate, and that this has been the position throughout his life" is quoted in https://www.americanbar.org/content/dam/aba/administrative/healthlaw/05_transgender_and_intersex_legal_developments_02.authcheckdam.pdf Getting bond wrong (talk) 12:42, 2 December 2021 (UTC)

Shouldn't keep coming back to this farrago, but I note that Time_(magazine) on 13 December 1968 had a good article on the case. So this supposed 'secrecy' can't really extend much beyond North London academics if it was so well publicised in Aberdeenshire and New York! 51.6.98.94 (talk) 16:10, 24 November 2021 (UTC)

Both of those Twitter accounts seem to be blatant transphobic accounts that follow and promote a number of known anti-trans groups, such as the LGB Alliance. So I'm not sure why their opinion on Forbes or the published book is relevant to anything. Silver seren 08:20, 25 November 2021 (UTC)

Also here, lecturer in Scottish Law expressing disapproval that this book appears to get basic matters of Scots law wrong. https://twitter.com/Scott_Wortley/status/1467557401092145156 This book's claims are clearly a contentious matter, and calling the people pointing this out "transphobic" isn't much of a response. Getting bond wrong (talk) 22:58, 5 December 2021 (UTC)

Using Twitter accounts to make an argument isn't much of a response either. They aren't reliable sources. What they say on Twitter is irrelevant. Silver seren 23:11, 5 December 2021 (UTC)

The claims that Forbes was a transman, that the trial was held in secret, and that trans people were denied use of this as a precedent for legal sex change are false and should be reverted. The ruling was reached based on the evidence that Forbes was intersex, and as made clear here by Lesley-Anne Barnes in "Edinburgh Law Review, May 2007, vo. 11, No. 2 : pp. 162-186": "the precedents of X Ptr, Forbes-Sempill and Corbett, endorsing a medical sex-determination approach, still prevail".

Ewan Forbes was determined to be male by medical examination, and Forbes' birth certificate corrected due to an unspecified intersex condition not identified at birth. From Lord Hunter’s opinion in the case:

"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. The evidence of expert medical opinion led on behalf of the Second Petitioner is in my opinion both coherent and weighty, and my conclusion, after considering the whole evidence more than once with greatest care, is that it must prevail against the evidence to the contrary effect, particularly from Professor Strong, whose views may have been coloured to some extent by his original diagnosis of congenital adrenal hyperplasia, a diagnosis which has now been disproved.". Claims that this was denied as precedent for transsexuals to change their birth certificate are false, because the basis of Ewan Forbes claim was the correction of birth certificate due to error, not change of sex. That was at the time the only way to amend a birth certificate - in the event of error. See Sheffield and Horsham v. The United Kingdom 1998:

"30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. 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."

Also, the "secrecy" aspect is disproven by contemporaneous reporting cited already (Time, US), and additionally reported in the Aberdeen Press and Journal, December 4th, 1968. Void if removed (talk) 23:11, 7 December 2021 (UTC)

You are trying to use old sources (and primary ones) to make claims that aren't supported by the contemporary sourcing. And, no, the TIME and other articles do discuss that the Forbes case was prevented from being allowable in subsequent proceedings. It is the secrecy over the case as usable in legal law that is being referred to as secret. The court documents and everything were sealed away and not accessible until forced to allow access in recent years, as the sources also note. The modern sources directly point out that the "hermaphrodite" legal decision was after Forbes faked the presentation of testes tissue that didn't belong to him, thus allowing for the ruling to proceed as you quoted. Silver seren 00:07, 8 December 2021 (UTC)

The "faked testicular tissue" claim is speculation, but crucially, even if true, it undermines the claim that this case was "kept secret" to avoid its impact on trans cases. Forbes was allowed to change birth certificate because of a determination that he was intersex. Even if contemporary evidence could show this was fraud (for which the source is Playdon's book, and which is contentious), all it would show is that it was fraud. As the Lesley-Anne Barnes citation shows, above, the Forbes case did not show that trans people were able to change their certificate to match "psychological sex" as Playdon and Whittle claim, but rather that it could be corrected only in error. Hunter's opinion again: "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". And: "I therefore reject the suggested solution of a final and binding election made, however publicly, by the person concerned.". So even if it could be proved that there was fraud (and this is far from proved by any means), the case does not form the kind of precedence that Playdon claims. Never mind that in legal terms whether it was precedent in the manner claimed by Playdon is questionable, given the level of the court involved, the kind of ruling and the relationship between the Scottish and English legal systems. The amount of single-POV speculation on this page being presented as factual is irresponsible. The article should be reverted to stating that Forbes was intersex, and a dedicated section about Playdon's speculation (and criticisms of it) added. Void if removed (talk) 09:52, 8 December 2021 (UTC)

Here's another secondary source From Dr Carolynn Gray (2016) https://theses.gla.ac.uk/7100/1/2016grayphd.pdf

" Lord Hunter accepted that Ewan Forbes-Sempill was intersex, although the word used then was hermaphrodite, that the male sex characteristics predominated and therefore he ought to be legally male. This case, along with the case of X, Petitioner, outlined above, 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 demonstrates again that a) Forbes was intersex and b) even if he were not, the basis of his birth certificate change was because he was believed to be intersex, and thus this ruling reinforces that change can only be accomplished through genuine error, and not thus is not relevant to transsexuals as Playdon asserts. Void if removed (talk) 19:53, 8 December 2021 (UTC)

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