A High Court Decision in Britain Puts Trans People Everywhere at Risk

Earlier this month, the British High Court judged that children under the age of 16 have “enormous difficulties” in meeting the standard for informed consent—a long-established norm known as “Gillick competency”—that would allow them to take puberty blockers, drugs that delay hormone-induced development. In effect, the courts intervened in the transition-related care of children experiencing gender dysphoria, putting those children and their families in the position of having to seek care abroad.

To some children experiencing gender dysphoria, puberty—a difficult experience at the best of times—can be especially painful because it enacts changes to the body that may be irreversible without painful and costly surgeries. That’s why the British Medical Association recently affirmed its position that transition-related care for minors should focus on delaying puberty.

The decision is an unprecedented juridical attack on the LGBT community in the U.K., in which the British state has asserted a right to enforce unwanted puberty—and to arrest transitions that are already in progress—on the slimmest of pretexts.

It also reflects a disturbing escalation of anti-transgender policy across the United Kingdom. (The law does not yet apply in Scotland, but campaigners are attempting the same change there.) A formerly highly marginal ideology, the so-called gender critical position, has captured British institutions. The court’s decision was lauded not just by the British right-wing press like the Spectator but, more strikingly, by center-left media like the Observer, which applauded the decision, suggesting that it will “ensure that children will now receive the protection to which they are legally entitled.”

The author J.K. Rowling, whose anti-trans activism galvanized the movement earlier this year, took another opportunity to claim that there is a “climate of fear” around trans issues. That’s true, although perhaps multimillionaires like Rowling have less reason to be afraid than the children and trans people targeted for abuse, harassment, and violence amid rapidly intensifying moral panic around the world.

Gender critical feminism is a broad church, but at its core is the belief that women are unified by what the Woman’s Place UK manifesto calls “sex-based needs,” so they are therefore in particular need of what they call “sex-based rights.” These might be characterized as the ever greater and more specific biological specification not merely of “women” as a legal entity but of various classes of women whose commonality might otherwise be understood not as biological, but cultural.

For example, a recent gender critical manifesto argues that the inclusion of trans women “within the legal categories of woman, of lesbian, and of mother threatens to remove all meaning from these categories.” This position is profoundly at odds with both mainstream liberal feminism and with the left-wing radical feminists like Shulamith Firestone whom the gender critical advocates sometimes cite as influences. While gender critical feminists demand more and more intense legal regulation of women’s personhoods and identities, radical feminists have historically seen the liberation of women from “legal categories” themselves as a vital component of feminist liberation.

Instead, gender critical thought derives from the very marginal work of trans-exclusionary feminists such as Janice Raymond, whose manifesto The Transsexual Empire: The Making of the She-Male was published in 1979. Raymond argued that “all transsexuals rape women’s bodies by reducing the real female form to an artifact, appropriating this body for themselves,” and that consequently, “the problem of transsexualism would be best served by morally mandating it out of existence.” That explicitly essentialist line of thinking was contested by feminists like Gayle Rubin and Judith Butler, who argued that there is no single “real female form” to which all women’s bodies can be made to conform—that the oppression of women took place not on the grounds of women’s biological condition but on their social position.

The court’s decision in Bell v. Tavistock is a major achievement for the gender critical position and a disaster for both LGBT children and their families. It is based on three flimsy pieces of reasoning.

First, and most consequentially, the decision had almost nothing to do with the case it sought to address. The complainant in that case, Keira Bell, brought a case based on a gender transition she regretted, and which she now feared had negatively impacted, in particular, her fertility. But the remedy that the court proposed would have had no bearing on those damages: Bell began taking hormone replacement therapy (HRT) at age 17 and obtained her top surgery at 20. Bell’s lawyer argued in court that her decision to seek treatment with HRT was caused by her having been prescribed a puberty blocker at an earlier age. It is unusual for courts to be swayed by this kind of “slippery slope” fallacy, especially when Bell was also, and contradictorily, arguing that her interest in transition was caused by “the internet.”

But it was especially bizarre for the court to argue that the puberty blockers “pave the way” for the later, adult interventions because of the high percentage of patients who advance from puberty blockers to HRT (though the court did not in fact collect evidence on what that percentage actually is). If that percentage is high, it would only be because the number is low—only 161 children were treated for gender dysphoria with puberty blockers in the year 2019-2020, implying that there are, despite much propaganda to the contrary, significant screenings of children before they are prescribed puberty blockers.

One might think it a good thing that doctors tend to prescribe puberty blockers only to those who then go on to transition. But the fact has created a very odd paradox: If the Tavistock clinic involved in the court case had indeed been prescribing puberty blockers as carelessly as has been claimed, and therefore the rate of detransition were higher than it is, then the clinic would have removed one of the bases of the case against them. The clinic was penalized, in other words, for demonstrating precisely the diagnostic restraint that the High Court judgment wants to encourage, but which it makes impossible.

And because it had accepted the argument that the blockers caused patients to transition, the court was put in the still stranger position of claiming that an irreversible puberty, rather than an easily reversible (though rarely reversed) intervention, would better give young people a chance to “pause” their decision. The system that the court has dismantled was designed to give adolescents an opportunity to determine how they want to live and to look, without undergoing the irreversible and often profoundly disturbing physical transformations of an unwanted puberty. That subtlety has now been erased in British law.

Finally, the particular concern over “fertility” that the court adduced in many places (the word appears 23 times in the decision, versus eight times for “transgender”), reveals the clearly conservative social project at the core of this decision. The court determined that “there is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.” But talking to children about fertility and sex was already routine in the decisions over contraception, surgery, and other treatments that were a key part of Gillick competency in the first place.

The muddled thinking and moral panic of the Bell v. Tavistock decision requires cultural analysis, not just legal dissection: How was such a wrong and dangerous decision met with almost universal acclaim in the British media? The root cause is the escalating and intensifying campaign against trans people being waged online.

A recent article in the Atlantic compares online “gender critical” activism to the alt-right message boards that organized online mobs for Donald Trump’s presidential campaign in 2016, and it quotes gender critical activists engaging in a similar type of cruel, trollish humor. The analogy is more than theoretical: The Women’s Liberation Front, an anti-trans activist organization, has slowly allowed itself to become a front for the right-wing Heritage Foundation; as Sophie Lewis argues in an essay in the New York Times, many of the most prominent “gender critical feminists” in the U.K. are, in fact, explicitly committed anti-feminists.

The anti-trans trolls are worryingly close to the friendlier and more mainstream faces of gender critical activism. By her own account, Rowling was radicalized by her interest in Maya Forstater, who lost a preliminary employment tribunal hearing after tweeting a Medium article titled “Pronouns are Rohypnol,” which implicitly compared trans women to rapists and was later taken down by Medium. (The notion that trans women are sexual predators who are aroused by using women’s restrooms is a common notion on gender critical message boards, despite this having no basis in reality.)

The alt-right and the gender critical movement also both delight in confecting entirely fictional supposed free speech violations to create the impression that they are the victims of persecution. Most recently, the anti-trans writer Suzanne Moore has been giving a suite of interviews about why she left the Guardian, citing a letter in which “338 colleagues basically bullied [her].” As was reported at the time, the letter in question made no mention of her by name, nor by any identifying detail, and simply recorded that the signatories were “deeply distressed by the resignation of another trans colleague.”

The effects of the U.K. movement are impacting the United States as well. In the couple of weeks leading up to the Bell v. Tavistock decision, I was embroiled in a strange “free speech” controversy, after the anti-trans activist Abigail Shrier claimed in the Wall Street Journal that I was trying to silence her. Her article (to which I was not given a chance to respond) ignited a cascade of follow-up panic-pieces in the Daily Wire, the Federalist, the Daily Caller, Fox News, and the rest of the right-wing press. That, in turn, instigated a torrent of rape and death threats sent to my work email address, and a campaign of letters to my chair and dean trying to get me fired. Meanwhile, Shrier got a laudatory review in the Economist and then was asked to cover the Bell decision by Newsweek, her third anti-trans article for the magazine this year. Being “silenced” gives you plenty of chances to talk loudly.

How will this fever be broken? Feminists around the world need to take more seriously than we have the rise of this chimerical blend of biological essentialism and cultural conservatism. This will mean confronting the reductive slogans (“a woman is an adult human female”) with which the gender critical groups seek to bypass critical thought, and learning to recognize the arcane vocabulary they trade in.

The fact of trans people cannot itself be a matter for debate, despite the eliminationist fever dreams of Raymond’s inheritors in the British High Court. Vital and profound questions about sex, gender, nature, and nurture do not end when one accepts the fact of trans life—those questions are profoundly enriched by our presence in the world. They have been addressed powerfully and persuasively by trans feminist thinkers, writers, and activists such as Jules Gill-Peterson, Emma Heaney, Marquis Bey, Sophie Lewis, C. Riley Snorton, and Che Gossett.

The gender critical attempt to reduce terms like “woman” to chromosomes—or what online activists sometimes refer to, with an almost comical pedantry, as “large, immotile gametes”—is profoundly misguided. It’s like trying to define a gymnast by their height; one might expect gymnasts to share a particular shape, but that isn’t definitive of their social position, and there will always be outliers.

There are complexities in the relation between social type and logical category—indeed, that problem has been central to philosophy since Aristotle—but the naive insistence on the self-evidence of natural types is a path to confusion. That’s the route that the court in Bell v. Tavistock took into an erroneous decision that endangers the lives and well-being of sexual minorities, while flattering the sensibilities of those who believe fertility, rather than self-determination, is what makes a woman’s body worth preserving.

Correction, Dec. 16, 2020: Maya Forstater lost a preliminary employment tribunal hearing after posting tweets critical of transgender rights. A previous version of this article misstated the timing of her tweets.

Correction, Feb. 1, 2021: The original version of this article misstated the scope of the High Court’s ruling; the judgment only applies to those in England. Also, Keira Bell began hormone replacement therapy at 17; a previous version misstated her age at the time. In addition, an earlier version of this article incorrectly referred to a hormone blocker that the claimant has said elsewhere that she was not prescribed; references to this medication have been removed. An earlier version of this article also misrepresented the court’s evidence collection on the percentage of children who progress from puberty blockers to hormones.