The new bill promised to remove the surgery requirement. Under the proposed model, trans Victorians could change their birth certificate with only a statutory declaration and a supporting statement from another adult. Trans people would get one step closer to legal equality and no one else would be affected. Simple – or so it seemed. The bill did eventually pass into law, but not before months of transphobic backlash from the Liberals and Nationals opposition, religious lobbyists, and ‘gender critical’ feminists. For the trans community, it was a distressing period in which we once again discovered that our basic rights remained up for debate.

This bruising Victorian tussle was only the latest chapter in a long global struggle over the question of trans birth certificates. In her new history, The Hidden Case of Ewan Forbes, retired academic and queer activist Zoë Playdon details how this struggle played out in twentieth-century Britain, where the issue of male primogeniture raised the stakes of how sex and gender were policed under law. With inherited titles and even succession to the British Crown at risk, the question of who could legally be a man or woman became a matter of great national import.

A photograph of Ewan Forbes, taken on 11 January 1960 (Keystone Pictures USA/Alamy)

Playdon’s book tells the story of Ewan Forbes, a trans man born into the Scottish aristocracy in 1912. Forbes was assigned female at birth but knew he was male from early childhood. Thanks to family money and connections, and a remarkably supportive mother, Ewan was able to medically transition as a teenager. By his twenties, with his father dead and a sympathetic elder brother now head of the family, Ewan was living as a man. During World War II, he trained as a doctor in Aberdeen and later fell in love with his receptionist, Patty. In 1952, they decided to marry. To ensure the marriage would be legal, Ewan amended his birth certificate to deem him male. At the time, it was relatively easy to make this change, as being trans was then understood as an intersex variation that attracted qualified sympathy from law and medicine.

Significantly, this birth certificate amendment put Ewan next in line to inherit. As his brother William had no sons, the principle of male primogeniture dictated that Ewan would be the next baronet, displacing a cousin, John, who had previously been poised to inherit. When William died in 1965, this issue came to a head. Over the next three years, Ewan and cousin John fought a protracted legal battle over the family title. At issue: was Ewan really a man?

The case had huge implications for male primogeniture. As Playdon writes, if a female-assigned person like Ewan ‘could inherit a male primogeniture title, then succession to the Crown and other primogeniture titles was no longer secure’. As a result, the case was ‘not just about succession to one baronetcy: it was about the authority, continuity and supremacy of the whole British establishment’.

In the end, Ewan won the battle but trans people lost the war. In the judgment, Ewan was deemed a ‘true hermaphrodite in which male sexual characteristics predominate’. The home secretary concluded that this legal status made Ewan ‘male enough’ to inherit the baronetcy. However, Ewan’s win – and its implications for succession – prompted a backlash that undermined the legal rights of the broader trans community.

In 1969, immediately after Ewan’s case, a similar case was heard by the English High Court. Trans woman April Ashley was being divorced by Arthur Corbett on the grounds that she was really a man. Once more, a trans person’s identity was under the legal microscope. Ewan’s case should have been an influential precedent in Corbett, but the presiding judge Roger Ormrod imposed a ‘super-injunction’ which barred all mention of this earlier judgment that had cautiously affirmed trans self-identification. With Ewan’s case now hidden, Ormrod could treat Corbett as the first case of its kind and was hence free to shape the emerging law about trans identity.

The results were devastating. According to Playdon, Ormrod was consciously motivated to solve the ‘constitutional crisis’ Ewan’s case had raised. He issued a punitive judgment that conflated biological sex and gender identity, and insisted that sex was immutable and fixed at birth. In Playdon’s words, ‘[Ashley] was the whipping girl used to save male primogeniture from being tainted by trans people’. As a result, not only was Ashley deemed a man, but trans people worldwide entered a new era of legal disenfranchisement. Ormrod’s ruling became a ‘super-precedent’ that influenced law throughout Britain, as well as the United States, New Zealand, Australia, Canada, and South Africa. The relatively liberal era in which Ewan could amend his birth certificate was over; henceforth, birth certificates were kept safe from the newly pathologised convictions of trans individuals – a situation that lingers, to varying degrees, to this day.

Playdon is the ideal person to relate this complex history. As the co-founder of the UK Parliamentary Forum on Gender Identity and Emeritus Professor of Medical Humanities at the University of London, Playdon brings a lifetime’s understanding of trans law, medicine, and history to Ewan’s story. Indeed, Playdon herself is a minor actor in the drama, as her LGBTQIA+ activism in the 1990s helped bring the long-hidden Forbes case to light.

Most compelling are the courtroom scenes, which are a tour de force of empathetic history. Playdon brings the legal drama to life in often painful detail, giving readers insight into the humiliating medical examinations and public cross-examination that Forbes and Ashley were forced to endure. In less adept hands, this account could have tipped over into salacious voyeurism, but Playdon retains her subjects’ dignity (though I did have misgivings over her decision to use Ewan’s female deadname).

Although chiefly concerned with Ewan’s story, Playdon’s book is also a trans history of twentieth-century Britain. In each chapter, Ewan’s activities are juxtaposed against broader developments in trans experience. This braided storytelling is not wholly successful; Ewan lived a quiet rural life largely removed from broader historical developments, and the frequent jumps between his individual life and the bigger context can give the narrative a disjointed quality.

Ewan’s story did intersect with – and indeed, shape – trans history in one key moment: when the 1968 court battle to prove his maleness prompted a backlash that ultimately harmed trans people worldwide. But just how consequential was this moment? According to Playdon, Ewan’s case is so significant that it should form the basis of a new periodisation of trans history. To her mind, the long-hidden 1968 case marks the ‘tipping point’ between an era of ‘trans equality’ and ‘today’s trans discrimination’. This bold claim does not entirely convince. To suggest that one legal case could remake trans experience arguably overstretches the significance of Forbes’s story. The case had profound ramifications, no doubt, but these surely operated in concert with a suite of accompanying social, political, legal, and cultural factors.

But Playdon can be excused for overegging the pudding, given that she writes from a Britain where trans rights have become fodder for a toxic culture war waged by an influential ‘gender critical’ (or TERF) minority. Things have been ugly, and trans people and their allies are – understandably – on the defensive, forced to battle against rising transphobia in a fraught environment not amenable to nuance.

Yet The Hidden Case of Ewan Forbes is part of a new wave of British publications that suggests the mood may be shifting. Alongside Shon Faye’s 2021 bestseller The Transgender Issue and Finn Mackay’s much anticipated Female Masculinity and the Gender Wars, Playdon’s history represents an effort to speak back to cultural warriors like J.K. Rowling and Suzanne Moore, who have made transphobia palatable within the British mainstream. Together these books promise to do powerful work in service of trans liberation. In the meantime, we can only hope that the virulent ‘gender wars’ that have so poisoned British culture are never replicated here in Australia.