Talk:Sir Ewan Forbes, 11th Baronet

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. Silverseren^C 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. Silverseren^C 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. Silverseren^C 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)

You're trying to create a SYNTH argument from what the judge in the case decided (and the article already notes that they specifically used "hermaphrodite" as their legal decision) and trying to make the claim extend to every prior instance, which you don't support. And a university thesis is not a reliable source for any form of claim. Meanwhile, the article has multiple sources, such as from the Barnes review itself, stating that the doctors involved determined that Forbes was "transsexual" and not a hermaphrodite, with L. G. Gooren returning decades later to add to that statement. The article already notes everything you're claiming, you're just trying to use Lord Hunter's statements to both add greater prominence against the other sources (a WP:DUE violation) and synthesizing that with your personal claim about how such cases worked prior to this one, which is at odds with what the modern sources used in the article state. Silverseren^C 20:04, 8 December 2021 (UTC)

This thesis is cited by Playdon in the book, see page 343, note 10 Void if removed (talk) 21:04, 8 December 2021 (UTC)

And what is in Playdon's book as a published work from a reliable publisher is a reliable source, but that doesn't mean everything cited in that work is separately reliable and a thesis itself isn't for purposes of Wikipedia articles. That's just how the rules work. Also, a footnote doesn't really mean much in itself? Silverseren^C 21:09, 8 December 2021 (UTC)

A PhD thesis can be a citation, and Dr Gray is an expert in this field https://research-portal.uws.ac.uk/en/persons/carolynn-gray. As far as the medical evidence goes, that was decided in the ruling. The majority agreed that Ewan was male, that a minority disagreed is irrelevant, and that Gooren decades later speculated fraudulent testicular tissue is again irrelevant to the question of law. The basis of the legal change was that Ewan was intersex, that is the only means by which a birth certificate could be changed at the time, as explained in the citation, which is itself relied upon by the book. There was already a section in the article giving space to Gooren's speculations, but these have now been inappropriately elevated - with no additional evidence - to the status of fact. Playdon did not provide any evidence to support Gooren's allegation of fraud that wasn't already available, meaning they are just as speculative now as they were in October. This page should be reverted to the last known good version before the release of Playdon's book, and before it was overrun with conspiracy theories presented as unopposed fact. Void if removed (talk) 21:22, 8 December 2021 (UTC)

The book's claims that Forbes was definitely transsexual, and the legal implications of the verdict, are disputed. This article should not present them as fact, and should be reverted to the last version before these edits took place and instead add a new section noting the speculation about Forbes resulting from the book and surrounding controversy. Void if removed (talk) 11:05, 16 December 2021 (UTC)

References

Professor Gooren was not a witness

Professor L. G. Gooren is described as a witness in the Forbes trial. He was not - the cited source appears to be in error. Gooren submitted a report to Sheffield & Horsham January 29, 1998, with his opinion based on reading the transcripts, which is likely the source of the error. Given that he was still a medical student in the Netherlands until 1970 the suggestion he was called as an expert in the Forbes trial in 1967 is fairly obviously false on its face, but referring to the primary source (the Forbes transcript) the full list of witnesses is: P. A. Jacobs, Dr. W. H. Price, Dr. N. McLean, J. A. C. Cumnock Forbes-Sempill, Dr. A. L. Stalker, Dr. A. A. Shivas, Dr. W.G.C. Manson, Rev; D. Reid, Baird. Matthews, Joan May Wright, Mrs Cordiner, Dr. A.I.I. Klopper, Dr. C. J. Dewhurst, Prof; M. Roth, Dr. C. N. Armstrong. Void if removed (talk) 10:56, 16 December 2021 (UTC)

Also, Gooren is not mentioned as a witness in Playdon's recent book, which exhaustively lists the other witnesses. Void if removed (talk) 17:16, 16 December 2021 (UTC)

Then just remove the part of him being a witness, as I just did? He still directly makes a statement on the subject matter in the secondary sources and using the records from the case. Silverseren^C 17:25, 16 December 2021 (UTC)

Okay, I went through the Barnes reference and she does note that Gooren was called to the trial while an endocrinology student at the university, which fits with his timeline. Why they called a student to the case, I don't know, but they did. And then Barnes specifically cites Playdon for the info about the results of the medical investigation on Forbes being a trans man, but not the book source obviously. It was actually from the Gender Centre's Polare journal in 2004. I've corrected the reference in the article to that. Silverseren^C 17:37, 16 December 2021 (UTC)

You claim he was a student witness which I can find no corroboration for in the source. Who called him, Ewan or John? Please give some contextual text or for this claim. The single reference to Gooren in the cited source I can find is as follows: "Professor L G Gooren, endocrinologist at Vrije Universiteit Hospital, Amsterdam, gave evidence in Forbes-Sempill and later submitted a paper in evidence to the European Court of Human Rights in Sheffield & Horsham v UK (1999) 27 EHRR 163 in which he concluded, with hindsight, that Forbes-Sempill was almost certainly a female-to-male transsexual. See also Playdon (n 39).". This is contradicted by both the list of witnesses in the summary trial, and Playdon's book which lists the same witnesses, but not Gooren. This appears to be an error on the part of Barnes. Also the dating in the article is wrong - Gooren wrote his submission in Sheffield v Horsham in January 1998, and it was not based on his notes, but from the same transcripts of the trial that Playdon's book is based on. Similarly you say "Barnes specifically cites Playdon for the info about the results of the medical investigation on Forbes being a trans man", but the Barnes citation is for the same 1996 blog that is already cited by this article, which predates Gooren's submission in Sheffield & Horsham by 2 years. What you're saying makes no sense. Void if removed (talk) 17:44, 16 December 2021 (UTC)

You are doing original research to try and claim something isn't true without evidence. The list of witnesses in the trial doesn't say one thing or the other on if Gooren was involved in some manner. You need a secondary source saying he wasn't involved, particularly since Gooren himself clearly thinks he was involved and gave information to Barnes in that regard. You can't say Barnes was wrong of your own accord, as Wikipedia editors are not sources. As for Playdon, she republished an expanded version of her "The Case of Ewan Forbes" article from 1996 in the Polare journal in 2004. Silverseren^C 17:48, 16 December 2021 (UTC)

I am reading the secondary source - you say it contains an explicit reference to Gooren being called whilst a student. I can find no such reference, so I'm asking what I'm missing, is there any contextual text to help find what you're asserting the source says? Can you quote the line directly? I've quoted in full the only reference to Gooren. The main article says 12 medical experts were called, and all are accounted for in the witness list in the transcript and corroborated by those named in Playdon's book. Where are you getting the idea that Gooren gave information to Barnes? None of that is in Barnes' 2007 article that I can see. And you say Barnes cites Playdon in Polare, 2004, but at 39. I only see a citation for the 1996 blogpost: "Z J Playdon, “The case of Ewan Forbes” (1996), available at www.pfc.org.uk/node/390". Void if removed (talk) 23:25, 16 December 2021 (UTC)

The claim that Gooren was a witness is contradicted by the primary source and another secondary source. The claim that he was explicitly called while a student is invented, and not featured in the source. I have cited two existing sources, and quoted directly, stating that Forbes is not in contradiction with Corbett. Polare is a magazine, not a journal, it is not peer-reviewed, and the article in question is a retread of the previously cited 1996 blogpost, does not support the assertion that "the details that have since emerged of his treatment make it clear that he was a trans man", and contains basic errors such as giving the date of Re. X as 1965 instead of 1957. The article also refers readers back to this very wikipedia page for further reading. Void if removed (talk) 14:57, 19 December 2021 (UTC)

References