Introduction
In July 2023, my spouse’s place of work was vandalized by a person or persons who placed multiple stickers in public places, including the bathroom, noticeboards, and – on one occasion – all over the front door. The stickers read ‘woman: adult human female’. This is a well known anti-transgender dogwhistle,1 meaning that only what are termed as ‘biological female’ women can use the label ‘woman’. My spouse had, at the time, several trans and nonbinary co-workers. It is a signifier of the toxicity of the current environment for trans persons and their allies in the UK that such brazen and targeted vandalism is taking place.
A backgrounding in the queer history of the UK reveals a distinct parallel between the gay moral panics of the 1980s and 1990s, in particular that which gave rise to Section 28 of the Local Government Act 1988, and the current moral panic surrounding transgender persons. This article argues that the distinct echoes of the prevalent homophobia of the Thatcher premiership are present in today’s small-c conservative concerns about self-identification for trans persons, and about the protection of children from what is viewed as harmful transgender ideology. Aided by anti-gender actors including conservative religious groups, far-right political activists, and ostensibly left-wing feminists, a serious problem has developed in the political and media spheres in the UK. The demonization of trans persons has become a political sport: a ‘culture war’ enacted for the purposes of electoral gain and minority scapegoating.
As a scholar of queer legalities, I am fascinated by the mirroring which is seen between the genesis of Section 28 and the recent panic over the potential reforms of the Gender Recognition Act 2004, particularly in Scotland. In this article, I will explore the trajectory of queer and trans law reform in the UK from the 1980s until the present day, examining the changes in political currents which have spurred reforms to the law and the moral panics which have arisen around queer and trans lives. In particular, I wish to highlight the fears which are mooted around the protection of cisgender women, and children, in the ‘trans debate’. I argue that Section 28 and the current atmosphere around transgender rights are parallel and equally dangerous examples of sexual- and deviance-related moral panics. To begin, I will discuss moral panics and the creation of Others; following this, I will relate the matter of moral panics to the genesis of Section 28. I will then move on to discuss 21st century trans-related law reform, followed by an examination of the example of attempted Scottish law reform in the area. Transgender people in the UK are in the same position now as gay and lesbian people were several decades ago: at the limits of law, alienated from the mainstream, and besieged by the media. This article argues that for queer and trans people, this is a position we have been in before, and looks at the mechanics of why.
Terminology
In this article, I use ‘transgender’ or ‘trans’ to signify any person who does not conform to the sex/gender which they were assigned at birth, including nonbinary and genderqueer persons. This reflects a social constructionist view of sex/gender, influenced by the work of Judith Butler (1990). Gender and sex are understood to be assigned attributes, conferred on individuals according to their visible bodily characteristics at birth. Gender has been understood to be the social component of sex, indicating the ways in which an individual relates to their own identity and society, and the way society interacts with the individual. However, Butler (1990) explains that sex is also a socially constructed form of categorization. Rather than being an innate and immutable aspect of humanity, binary in nature and dyadically divided, what we refer to as ‘biological sex’ is in fact an assignment to a category according to the best approximation of the observer at the individual’s birth. There are a huge variety of internal and external sex characteristics inherent in human beings (see, for example, the rich scholarship on intersex lives and bodies, such as Garland and Travis, 2020). Sex characteristics do not always predict the avowed identity of the individual nor their classification in law (see, for example, Currah, 2022; Stryker, 2008).
I use ‘cisgender’ or ‘cis’ to signify persons who identify to a self-defined extent with the gender to which they were assigned at birth. It is possible to be cisgender and gender non-conforming: to have a gender presentation or expression non-analogous with one’s assigned gender, but to still feel a sense of identifying with that gender. Although it has sometimes been characterized as a slur by ‘gender-critical’/anti-trans actors, cisgender is a neutral descriptive term applied to anyone who does not identify as transgender.
I use the term ‘queer’ to denote persons with non-heterosexual and/or non-normative sexual orientations. This includes gay, lesbian, bisexual, pansexual, queer, and so on. In speaking of historical matters, the terms ‘gay’, ‘lesbian’, and ‘homosexual’ are used as they were at the time, not only in citations but in reference to the specific communities targeted by legislation or policy. This is intended for historical accuracy and not erasure of any bisexual or multisexual identities.
A specific section of anti-trans actors and activists have adopted the term ‘gender-critical’. I do not use this term without a lot of caution, and only while clarifying its meaning. Following Pearce et al, I hold that ‘gender-critical’ ‘denotes less a critical approach to gender, and more an emphasis on claiming “biologically defined” notions of femaleness and womanhood over gender identity…’ (Pearce et al, 2020: 7). Another term this article does not use is ‘trans-exclusionary radical feminist’, or TERF, as it is inaccurate to describe the general coalition of anti-trans actors, who have not all come from the radical feminist tradition. I use the term ‘anti-trans’ to describe the beliefs of these advocates in conjunction with ‘gender-critical’ to make my meaning clear.
Moral panics and their Others
A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions…. Sometimes the object of the panic is quite novel and at other times it is something which has been in existence long enough, but suddenly appears in the limelight. Sometimes the panic passes over and is forgotten, except in folklore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself. (Cohen, 2011: 1)
I contend that the lives of queer and trans persons in the UK have included a succession of moral panics, fed and supported by a queerphobic and transphobic political and media establishment. In the case of queer and trans persons in the UK, the moral panics surrounding their lives and existence seem to be sparked by a politico-religious agenda aided by the mainstream media and, in recent years, by the widespread use of social media to disseminate disinformation. Queer and trans persons are represented as a problem to be solved and a manifestation of deviance which needs to be suppressed. The question of homosexuality provoked one of the great moral panics of the 1980s, particularly in the field of education. Gender-diverse persons have become an equivalent ‘folk devil’ (Cohen, 2011: 2) in the 2010s and onward.
… [t]he discourses of right-wing politicians stress the value of the traditional and patriarchal family…. In parallel, they promote a policy of uncertainty based on the sensationalisation of crimes and insecurity…. Left-wing politicians meanwhile focus their attention on children as victims to be protected, as subjects ‘at risk of suffering by the hands of adults’. (Tartari, 2015: 12)
Women and children, the subjects of patriarchal protection, become tools for politicians to make social and legal policy shifts for their continued safety; they must be kept safe from the stranger and the Other. Sexualization of children and violence against women are easy issues to sensationalize because of their links to sexual and moral problems, as well as feeding into traditional gender stereotypes and tropes of women and children as weaker subjects in need of protection. In the debates around Section 28, the protection of children was deemed to be the highest priority; in the arguments surrounding the reform of the Gender Recognition Act 2004 (of which, later) the safety of women and children have both come into play. Allowing the moral panic to characterize women and children as victims also allows the queer or trans person to be cast as a potentially dangerous Other. The patriarchal machine continues its work.
Goode and Ben-Yehuda (1994) propose three models of moral panics, which are a useful aid in understanding the origins of the phenomenon. They consist of the grassroots model, the elite-engineered model, and the interest group model. The grassroots model implies a spontaneous, unorganized rise of societal anxiety regarding some form of deviance. Victor (1998: 546) terms it ‘concern and anger about the threat from perceived moral deviants [which] is a response to persistent and widespread social stresses’. Public opinion occurs first in a grassroots moral panic, and is reflected by the authorities and the media. In an elite-engineered moral panic, the ‘elite uses the major institutions of a society to promote a campaign to generate and sustain public moral outrage about a threat from a target category of deviant’ (Victor, 1998: 547). The motivation of the originators is generally to distract from a real societal problem or issue, such as an economic recession, or a lack of housing. Lastly, an interest group model implies that the moral panic has been originated by activists ‘who attempt to focus public attention on moral evils that they perceive to be threats to society…. Interest groups and their moral entrepreneurs usually sincerely believe that their efforts serve a moral cause beneficial to the whole society’ (Victor, 1998: 548).
All three of these models can be seen in the British example (to be elaborated upon further later in this article). A grassroots model of moral panic is evident in the swell of anti-trans activism on social media in recent years. Individuals have come together to respond to and further provoke social anxieties about the existence of trans persons. Likewise, in the 1980s, the popular media helped to provoke a grassroots moral panic about sexualized children’s education among the British public. The elite-engineered model is seen in the use of anti-trans talking points by both Conservative and Labour politicians, in particular regarding the Cass Review into children’s gender-affirming care provision. This can be seen as a distraction from the social and economic problems the UK is actually facing, such as the decline of the National Health Service overall. Similarly, as will be discussed later in the article, political actors in the 1980s pushed for the passage of Section 28. Lastly, both British examples of moral panics under examination have been driven by activists and interest groups with an agenda to eliminate what they see as social threats, such as awareness of LGBTQ+ identities. Current examples of anti-trans/ ‘gender-critical’ activist groups include Women’s Place UK, Fair Play for Women, and Sex Matters (Amery, 2024), along with the LGB Alliance.
The danger of a moral panic is twofold: firstly, the massive increase in hostility toward the targeted group at the time of the panic itself, and secondly, the legacy it leaves (see also Mestre i Mestre, 2022). In the case of the gay and transgender moral panics in the UK, the social and legal legacies left have been lasting. Section 28 was extant in law for 12 years, and the moral panic around transgender self-identification has helped both to block the reform of the Gender Recognition Act 2004, and to prevent the enactment of the Gender Recognition Reform (Scotland) Act 2023. In this way, the institutionalization of the moral panic becomes part of the legal and social fabric of the country.
Section 28: a product of its time
Not everyone was on board with the idea. Margaret Thatcher wasn’t a natural supporter. She had the view that if you told young people about HIV and unprotected sex, you’d be telling them about things they didn’t know about, and the implication was that they’d want to go out there and do it. I always thought that was an eccentric view. We were warning people, not urging them. (Jonze, 2017)
Against the backdrop of the first years of the AIDS epidemic, homosexuality was also gaining more public status in the UK. With legalization came a certain escape from the shadows: an ability for gay and lesbian people to take part more in social life. However, along with rising visibility came a rise in anti-gay public sentiment. In 1987, a British Social Attitudes Survey (ICPSR, 1987) found that 75% of surveyed British people considered homosexuality to be ‘always or mostly wrong’. The Daily Mail contributed to the rising moral panic with a tirade against a children’s book about a girl with gay parents, Jenny Lives with Eric and Martin (Baker, 2022: 82), which became something of a flashpoint in the debates owing to what was thought of as its sexualized images. These included illustrations of Jenny, the little girl, sharing a bed with her two male parents. Owing to a dispute between two London borough councils over funding for gay community projects, questions began to be raised over the support that the gay community was being given by taxpayer funds (Petley, 2019: 82).
In 1986, the groundwork for Section 28 was laid with Section 46 of the Education Act 1986, which stated that ‘where sex education is given to… pupils… it [must be] given in such a manner as to encourage those pupils to have due regard to moral considerations and the value of family life’ (Baker, 2022: 89). The following year, the Department of Education and Science issued a circular which stated that ‘There is no place in any school in any circumstances for teaching which advocates homosexual behaviour, which presents it as the “norm”, or which encourages homosexual experimentation by pupils’ (Baker, 2022: 113). Also in 1987, Margaret Thatcher addressed the Conservative Party conference with a speech which included the line, ‘Children who need to be taught to respect traditional moral values are being taught that they have the inalienable right to be gay’ (Baker, 2022: 114). Within the Houses of Parliament, the debate around the precedents of Section 28 was continuing. In 1986, the Earl of Halsbury had proposed a Bill entitled ‘Local Government Act 1986 (Amendment) Bill: an act to refrain local authorities from promoting homosexuality’. The Earl’s Bill was eventually shelved, but was resurrected in the form of an amendment to the Local Government Bill 1987. Section 28 of the Local Government Act 1988 became law at midnight on 24 May 1988 and was to remain in force until 2003. Section 28 contained the following language:
(1) A local authority shall not –
intentionally promote homosexuality or publish material with the intention of promoting homosexuality;
promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.
What was to constitute the promotion of homosexuality? Baker (2022: 185–8) writes of the subsequent shifts in education policy centred around sexuality and sex education. The 1993 Education Act allowed for the teaching of the ‘biological aspects’ of HIV/AIDS and sexual behaviour, but not relationships. In 1994, the government produced a circular on education which included the sentence, ‘[p]upils should accordingly be encouraged to appreciate the value of stable family life, marriage, and the responsibilities of parenthood’. At this time, marriage was only available to heterosexual or outwardly cisgender male/female couples.
For fifteen years, Section 28 was purported to be a protector of school children, creating moral panic that positioned every pupil as a potential victim of abuse, and every LGBT+ teacher as their potential abuser. During the time of Section 28, LGBT+ teachers endured years of professional and personal dissonance leading to stress and anxiety. (Lee, 2019: 688)
Protests against Section 28 continued throughout the 1990s, but it was not until the New Labour government of Prime Minister Tony Blair, beginning in 1997, that repeal began to look like a possibility. The repeal of Section 28 in Scotland was one of the first acts of the newly devolved Scottish Parliament in 2000, but an attempt by the Labour Party to do the same in England and Wales was blocked by opposition in the House of Lords. It was finally repealed in the latter jurisdictions in the Local Government Act 2003. Although Section 28 inspired much protest and provided a catalyst for queer activism in the UK, its overall effect was the stigmatization and marginalization of gay identity in the jurisdiction, particularly in education (see also Burridge, 2004; Edwards et al, 2016), as well as a profound ‘chilling effect’ on speech and representation of queer people.
Twenty-first century law reform and rising transphobia
The European Court of Human Rights case of Goodwin and I v United Kingdom in 2002 required the UK government to put into place some facilities for legal gender recognition in the country, as it held that the inability to change one’s legal gender on a birth certificate was a violation of Articles 8 and 12 of the European Convention on Human Rights. This led to the introduction of the Gender Recognition Act 2004. In truth, the 2000s and early 2010s were a generally positive period for queer and trans legislation in the UK. The Civil Partnership Act 2004 allowed for same-sex civil partnerships mostly akin to civil marriage. The Equality Act 2010, which consolidated and replaced many older equalities laws in the jurisdiction, included ‘gender reassignment, marriage or civil partnership [and] sexual orientation’ as part of its protected characteristics, disallowing discrimination on those grounds. With regard to ‘gender reassignment’, Section 7(1) of the Act described its applicability as ‘[a] person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’. This was interpreted in the Explanatory Notes to the Act as including social elements of transition and does not mean that the person must have had surgery (HM Government, 2010). In 2013, marriage equality was introduced with the Marriage (Same Sex Couples) Act, and, in Scotland, the Marriage and Civil Partnership (Scotland) Act 2014. In 2015, the UK’s progress with regard to human rights for queer and trans persons was recognized with the top score of 86% on ILGA-Europe’s Rainbow Europe Map and Index, the yearly ranking of LGBTQ+ equalities across the continent (ILGA-Europe, 2015).
However, by 2017, the Gender Recognition Act 2004, which had once been lauded as progressive, had fallen behind other jurisdictions such as Ireland and Malta in its conditions for legal gender recognition (see Dunne, 2015, for a contemporary appraisal). Both countries had introduced self-identification terms for legal gender transition in 2015, meaning that a doctor or psychologist was not required to certify the person’s transgender status, nor were there any administrative conditions to be fulfilled. This contrasted sharply with the UK’s Gender Recognition Act (GRA), which requires restrictive terms to be complied with before legal gender recognition can be granted. A UK applicant must be 18 years old, ‘liv[e] in the acquired gender throughout the period of two years’, have a diagnosis of gender dysphoria, and present evidence from a doctor and a psychologist, or two doctors, to a Gender Recognition Panel (GRA 2004: ss 2 and 3). The GRA 2004 has been roundly critiqued by scholars in the 20 years since its adoption, including by Sharpe (2007), Grabham (2010), Hines (2013), Renz (2024), and others.
… in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers. (House of Commons Women and Equalities Committee, 2016: 79–80)
On the basis of this report, a public consultation on the GRA 2004 was announced in 2017 and opened in 2018 (Minister for Women and Equalities, 2018). The responses to the consultation were analyzed in a government document (King et al, 2020). Among some notable results of the consultation were the findings that ‘[n]early two-thirds of respondents (64.1%) said that there should not be a requirement for a diagnosis of gender dysphoria in the future’, ‘[a]round 4 in 5 (80.3%) respondents were in favour of removing the requirement for a medical report’, and ‘[a] majority of respondents (78.6%) were in favour of removing the requirement for individuals to provide evidence of having lived in their acquired gender for a period of time’ (King et al, 2020: 8–10). Despite the findings of this consultation, the UK government did not opt to reform the GRA 2004 to bring in any of the recommendations (Truss, 2020). The ‘failed consultation’ was critiqued by Whittle and Simkiss (2020) as having ended up in a ‘morass’ (2020: 229).
This public consultation ‘catalyzed a heated debate on trans rights and trans inclusion in the United Kingdom, in a context where… greater trans visibility and legal protections for trans people have caused something of a backlash’ (Zanghellini, 2020). The proposed reforms led to the foundation of ‘multiple campaign organisations [which] were founded to specifically resist self-determination as the mechanism by which birth certificate sex marker can be changed’ (Pearce et al, 2020: 5). These included groups such as A Woman’s Place UK, Sex Matters, and Fair Play for Women, who challenged the reforms on the basis that self-declaration could potentially impact on women’s rights, including the ability of cis women to access single-sex spaces in toilets and dressing rooms (see also Jones and Slater, 2020, on bathrooms) or the fear that cis men may impersonate trans women in order to reach and harm cis women. These anti-trans activists organize under the banner of ‘gender critical feminism’ and stand opposed to ‘gender ideology’ (see Paternotte, 2023), preferring instead to organize the world on the basis of ‘biological sex’. As Hines writes, ‘“sex” is reinstated as the primary source of women’s oppression in order to agitate against trans rights’ (Hines, 2020: 32).
… revolved around the argument that trans women are men and a danger in women’s spaces…. This argument failed to gain much public support so was adapted to suggest that the gender recognition process could be abused by cis men to gain access to women’s spaces for nefarious purposes… the ball was rolling on a new and, at the time, UK specific iteration of trans-exclusionary feminism, bringing together long-time trans-exclusionary figures and newly concerned individuals. (Thurlow, 2022: 5)
The ‘gender critical’ anti-trans movement sees itself as a protector of women’s rights and a preserver of the innocence of children. It is adamantly in favour of single-sex spaces in places such as bathrooms, changing rooms, and refuges. It does not consider trans women to be ‘real’ women and, frequently, anti-trans advocates refer to trans women as ‘trans-identified men’ (see for example the lede on this collection of anti-trans stories from conservative opinion site Quillette (2024); see also many examples from Twitter/X @JK_Rowling, 2024). It is also concerned with the potential effects on cisgender children of ‘gender ideology’. In 2020, the ‘gender critical’ anti-trans community united behind the case of Keira Bell, who forced a judicial review of the practice of the Tavistock Gender Identity Development Service in prescribing puberty-blocking medical treatments to persons under the age of 18 (Bell v Tavistock NHS Trust2). Bell is a young woman who spent several years living as a transgender man and who underwent gender-affirming healthcare interventions including a mastectomy. She then returned to living as a woman, but regretted her previous medical decisions. Therefore, Bell’s motivation for taking her case – the belief that children were not competent to make decisions around gender-affirming care – was based on a false equivalence between adult irreversible decisions such as surgery or ‘cross-sex hormones’, and minors’ reversible decisions (see Giordano, 2023: 138) such as puberty blockers. Nevertheless, the High Court upheld her complaint, restricting the legal principle known as ‘Gillick competence’ in regard to puberty blockers in particular. Gillick competence, stemming from the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986),3 is the principle which holds that a person under 16 can access medical care without parental consent ‘if [they] had sufficient maturity and intelligence to understand that nature and implications of the proposed treatment’ (Gillick, 105). The Bell judgment was later overturned by the Court of Appeal, but not before it contributed to a significant chilling effect in the prescription of puberty blockers to minors (Pritilata, 2022).
Anti-trans actors have been particularly prevalent on social media sites such as Twitter (now X), with celebrities such as JK Rowling as well as academics (Zanghellini, 2020) and media personalities contributing to the discourse. Another unlikely home of anti-trans sentiment is the parenting site Mumsnet (Baker, 2020), where the feminist discussion board has been overwhelmed by those wishing to discuss ‘gender ideology’ and various related controversies. The effect of all of this has become the increasing prevalence of anti-trans stories in the print and televisual media (Yamauchi, 2022; Sodha, 2023), which has in turn led to their adoption in the political spectrum. In summer 2023, then-Minister for Women and Equalities (and current leader of the Conservative Party as of November 2024), Kemi Badenoch, launched guidance which requires that all new buildings open to the public have separate single-sex toilets (HM Government, 2023a), a policy which echoes many ‘gender critical’ anti-trans talking points. Badenoch is not the only senior politician who has used anti-trans talking points: Conservative former Prime Minister Rishi Sunak is reported as having mocked trans women in a closed meeting with MPs. As PinkNews reported, ‘Sunak’s mention of “biology” and the use of trans women as a punchline appears to demonstrate the prime minister’s willingness to adopt so-called gender-critical lines and attack the trans community when addressing his own MPs in private’ (Williamson, 2023). Even Keir Starmer, the newly elected Prime Minister as of July 2024, has used the anti-trans dogwhistle ‘adult female’ to describe women (Perry, 2023) – the same wording which appeared on the transphobic stickers mentioned in the introduction to this piece. The Labour Party has also stated that it would not introduce self-identification when it gained power, with then-Shadow Minister Anneliese Dodds writing that ‘the law must also protect legitimate applications…. The requirement to obtain a medical diagnosis of gender dysphoria remains an important part of accessing a gender recognition certificate’ (Dodds, 2023).
If panic be the food of law… write on?
The ‘legitimacy’ of applications for gender recognition certificates remains a point of contention for many, displaying a fundamental mistrust of the motivations of applicants. Self-identification, held to be the gold standard of gender recognition legislation by international human rights law (see Madrigal-Borloz, 2021: 19), is widely vilified in the British public sphere as potentially allowing for bad actors to take advantage of the gender recognition process to make fraudulent claims. Why has that become the case? I argue that it is a combination of factors which we can understand better by viewing them through the lens of history and examining the life and effects of Section 28.
In 2009, then-Prime Ministerial candidate David Cameron apologized for the Conservative Party’s role in Section 28, saying ‘I’m sorry for Section 28…. We got it wrong. It was an emotional issue’ (Gray, 2009). The moral panic whipped up around homosexuality which led to the introduction of Section 28 played on the public’s emotions to make them fear the ‘folk devil’ of the moment. Gay people, especially men, were tagged with multiple stigmas which rendered them abject: deviance, illness, and sex. On all of these grounds, it was sex which was the deciding factor: deviant homosexual sex, ‘buggery’, which corrupted lives and spread plague. It is not difficult to see the parallels with the portrayal of trans people in the 2010s and 2020s: deviants, stepping outside the bounds of normative gender roles; spreading transness like a ‘social contagion’ to ‘innocent’ children, and assumed predatory sexual behaviour toward cis women, who must be protected from the deviant Other.
Through state and nonstate mechanisms that impinge on institutions and communities, people become totally overwhelmed by and defined through the meanings and rhetoric of sexual threats and fears. In this view, the sexual ‘folk devil’– the sexual other, whether oversexed, or undersexed – is stripped of rights, and the cultural imagination becomes obsessed with anxieties about what this evil sexuality will do to warp society and future generations. (Herdt, 2009: 5)
… millions outside Parliament object to little children being perverted, diverted or converted from normal family life to a lifestyle which is desperately dangerous for society and extremely dangerous for them…. Some of that which is taught to children in our schools would undoubtedly lead to a great spread of AIDS: even the knowledge of the danger of AIDS has not stopped the promoting of homosexuality among little children. (Quoted in Stychin, 1995: 48)
The problem is that self-identification also makes life a lot easier for other people we don’t want to have those sorts of freedoms. Predators would be able to exploit any system that says you can just say you are what you are. It’s also quite bad for trans people. They then get conflated and associated with the predators and people who are looking to do bad things. (Sky News, 2023)
The implied threat in both of these speeches is clear. The ‘promotion of homosexuality’ and the introduction of self-identification present an opportunity for harm to be done to societal innocents. If children are taught about queerness in school, they will get AIDS; if trans people are allowed to self-identify, predators will exploit the system to gain access to safe spaces. As Stychin writes, reacting to Knight’s words, ‘a focus on abstinence from gay sex and the encouragement of “normal” reproductive, monogamous family life… provides the only true defence against the epidemic’ (Stychin, 1995: 48). Queerness and transness infiltrate. Normality is the only bulwark against queer infiltration. Therefore, the law must uphold normality.
The reason the law must uphold normality is that it is seen as the arbiter of respectability and the regulator of deviance: in short, law as protector against chaos. To the law, queerness is chaotic. Cisgender heterosexuality is stable. The law creates a boundary between the two. Law is after all a matter of governance; following a Foucauldian approach (Foucault, 1978) we can see that ‘the authority that we associate with law is an effect of the knowledge that we use to construct it, rather than an inherent condition that precedes the existence of law’ (Raj and Dunne, 2021: 7). Unstable identities, such as queerness and gender diversity, must be governed. But the state is not the only originator of governance. The organs of governance arise from social causes such as medicine and religion; the impulse to governance arises from society itself, from people. Queerness, transness, and other non-normative sexualities are just the ‘fine names for heresies’ (Foucault, 1978: 43) imparted by the public. And, as Butler (1990) reminds us, stepping outside of the norm does not risk just alienation, but punishment. In this way, although ‘human rights’ standards are an easy metric of success or failure of policy regarding queer and trans people, it is important to be careful of relying on law as a barometer of liberation. To be regarded as the subject of rights is still to be governed.
I am going to turn now to the most recent example of the legal ‘culture wars’ over gender identity: the proposed Scottish reforms to the Gender Recognition Act 2004. In doing so, I will attempt to draw together the threads of this article, by arguing that a) bathrooms have become a flashpoint for anti-trans advocacy because of an obsession with the protection of women and children, which has spilled over into political debate; b) anti-trans actors have become legitimized and amplified in the current-day UK; and c) law (as governance) reflects public discourse, up to and including the frenzy of a moral panic. One point which must be made here is that the concerns of anti-trans actors around bathrooms and locker rooms are frequently expressed in terms of the safety of adult women, while the concerns preceding Section 28 were devoted to the wellbeing of children. I accept the critique given, on an earlier draft of this work, that a more equal comparison would be the fears over trans ‘contagion’ among young people, or perhaps fears over the provision of gender-affirming medication to young people. However, it is important to note that a) the fears around contagion and ‘Rapid Onset Gender Dysphoria’ have already been roundly debunked (Ashley, 2020); b) the debate around the provision of gender-affirming medical treatments to minors is a medical and policy matter of such magnitude as to be far beyond the scope of this article; and c) bathroom panics about children themselves (Grimm, 2022), and the safety of children (Serano, 2021), are in no way a new phenomenon in and of themselves.
The Scottish case
Cowan’s (2021) work cites interviews with trans people living in Scotland at the heyday of the nation’s European dominance in the field of queer and trans rights, from 2014 to 2016. One of her interviewees states that ‘I am not aware of a country that is a better place to be trans than Scotland. I think this is the best place on the planet’ (Cowan, 2021: 217). Looking back at those interviews now, I feel a distinct sadness at the way the atmosphere for trans people in Scotland has changed in the past several years.4 By 2020, the Scottish government had produced two consultations and rounds of review on their Gender Recognition Reform (Scotland) Bill (Scottish Government, 2021), and after the election of 2021, which returned a Scottish National Party–Green Party coalition, the Bill was introduced to the Scottish Parliament. The Bill intended to introduce self-identification by removing the requirement for a gender dysphoria diagnosis, reduce the amount of time required to live in one’s ‘acquired gender’, and lower the minimum age for applications for a gender recognition certificate to 16 years. The Bill was supported by the Equalities, Human Rights, and Civil Justice Committee of the Scottish Parliament following extensive consultations, and it was passed by the Parliament in late 2022. However, it was blocked from Royal Assent by the Westminster government of Prime Minister Rishi Sunak in 2023, using Section 35 of the Scotland Act 1998, as being ultra vires the devolved powers of the Scottish Parliament.
This brief legal history of the Gender Recognition Reform (Scotland) Bill does not, however, encapsulate the full story. A passionate and divisive discourse has emerged in Scotland surrounding the rights of trans women and girls to access single-sex spaces (trans men, however, are rarely mentioned). Anti-trans groups such as the LGB Alliance and For Women Scotland were established during the period of the Bill’s genesis, and have vehemently opposed self-identification as dangerous to the rights of cisgender women and girls. Their main point of contention is the exclusion of ‘male-bodied’ persons from women’s spaces – that is to say, persons with a penis or other male sexual characteristics. It does not seem to matter that there are only few, and exceptional, reasons that a trans woman could not enter a single-sex (as defined) space;5 as explained above, the Equality Act 2010 allows for access to single-sex spaces based on the protected characteristic of ‘gender reassignment’, which protects social transition; while, as Cowan notes, ‘the Gender Recognition Act 2004 does not require trans people to have surgery, [so] there are some trans women, who have a penis, who are already accessing all of these segregated spaces without incident’ (Cowan, 2021: 221). Precedent is also not on their side: countries such as Ireland, who have introduced self-identification laws for legal gender recognition, have not reported misuse of the process even as numbers of gender recognition certificates issued have risen.
… most people are assumed by others to be heterosexual, sex-segregated bathrooms are imagined by many to be ‘sexuality-free’ zones. Opponents’ focus on bathrooms centers on fears of sexual impropriety that could be introduced by allowing the ‘wrong bodies’ into spaces deemed as ‘for women only’. (Schilt and Westbrook, 2015: 27)
… there is little evidence to suggest that non-trans men gain access to women-only spaces by pretending to be trans women. Moreover, framing trans identity as a social privilege which some non-trans men will seek to abuse casually disregards the high rates of discrimination and violence which trans people, especially trans women of colour, experience. (Sharpe, 2020: 545)
Sharpe also notes the sanctions in the Irish Gender Recognition Act 2015 for attempted falsifying of an application (Sharpe, 2020: 546), including a fine or a custodial sentence. These sanctions were echoed in the draft Scottish legislation which went under debate.
It is our assessment that the Bill would have a serious adverse impact, among other things, on the operation of the Equality Act 2010. Those adverse effects include impacts on the operation of single-sex clubs, associations and schools, and protections such as equal pay. (Jack, 2023)
The Statement of Reasons given for the block under the Scotland Act also includes the rationale of the ‘impacts that removing safeguards could have on safety, in particular that of women and girls, given the significantly increased potential for fraudulent applications to be successful’ (HM Government, 2023b). This statement displays ‘gender-critical’ anti-trans interventions becoming part of common parlance. It shows a legitimization and institutionalization of their talking points, and an amplification of those talking points to the highest levels of government.
The other point to be taken from this case study is that the law, and lawmakers, will seek to regulate non-normatively gendered identities into compliance with a norm. When the world is divided into ‘adult human males’ and ‘adult human females’, there is no space for gender fluidity or gender transition. Closing the doors of ‘women’s spaces’ to all but cisgender women is the end goal of these political manoeuvres. Safety may be a good-faith reason for this fear, but its effect is the Othering and exclusion of trans women from the public sphere. The law needs to be able to categorize; that is how it functions. People who do not fit within its boundaries become outlaws, dangerous and unregulated. The impulse to governance which leads to the creation of law takes societal norms and codifies them into legislation. If society is in the grip of a moral panic – as it is now, and as it was during Section 28 – then the law which emerges will be a sign of the times.
Conclusion: Normal life
This [20th century moral panic surrounding Black youth] is not a crisis of race. But race periodises and punctuates the crisis. Race is the prism through which the crisis is perceived. It is the justifying scheme by means of which the crisis is analysed and explained…. It is the mechanism through which the movement, at the level of politics and the state, is ‘pioneered’ towards a necessarily exceptional form or moment of the state: a moment which has to rely on law and coercion, since the very foundations of social consensus have been eroded: ‘more than usual’ law and order to deal with a ‘more than usual’ threat to the social order. (Hall, 2021: 72)
This is not a crisis of gender, just as there was no crisis of enforced homosexuality in schools in the 1980s. The evidence does not bear out in respect of trans women posing a threat to cisgender women or to children, just as it did not in respect of homosexuality ‘indoctrination’ to schoolchildren. The moral panic, however, does not need evidence. Like a slow-burning fire, it self-sustains until its fuel runs out. It may not last forever, but it does significant damage while it burns. The UK has had a change of government since the first drafting of this article, with a Labour government led by Keir Starmer taking over from Rishi Sunak’s Conservatives. However, it does not seem that the moral panic over transgender lives will abate any time soon. The findings of the Cass Review into gender-affirming care for trans children (Cass, 2024), which have been criticised by trans scholars (for example Horton and Pearce, 2024; Horton, 2024; McNamara et al, 2024), have been adopted wholesale by the new government, leading to a ban on puberty-blocking hormones being prescribed to trans children. This climate allows for the legitimization of marginalization of trans people and the continuance of the moral panic.
The person(s) who stickered my partner’s workplace, and several businesses nearby, had one goal: to remind transgender people that they are not welcome in the public sphere. Outward demonstrations of prejudice are becoming more and more common as the panic continues; the horrific murder of Brianna Ghey in 2023 is just one example of the transformation of transphobia into violence. The acquiescence of the political and media classes to the grassroots and interest group originators of the panic lends it first societal legitimacy, and then, the force of law. But hope is not lost: just as Section 28 was repealed, so the campaign to reform the Gender Recognition Act across the whole of the UK, as well as in Scotland, carries on. If ‘the arc of the moral universe is long, but it bends toward justice’ (King, 1968), then, with continued work and solidarity, we are always on the cusp of a turning point.
Notes
As Witten writes, ‘[i]nformally, a dogwhistle is a type of coded speech found in lexical, phrasal, or thematic form in which a speaker delivers a message that contains two plausible interpretations to a mixed audience, with at least some members of that audience unaware of the existence of a second interpretation. The term ‘dogwhistle’ is a metaphor modelled after the function of a literal dog whistle, which emits a noise at a pitch that only dogs can hear’ (Witten, 2023).
(2020) EWHC 3274 (Admin); [2021] EWCA Civ 1363.
Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112.
Queer method allows, in fact invites, the legal academic to express emotion, and indeed my affect in writing this piece has had a significant effect on it. Raj (2020) is told ‘We need to pour contempt on emotion’, and rejects the intervention: ‘Law cannot escape emotion. And neither should we’.
Under the Equality Act 2010, section 3, part 7, trans women can only be excluded from single-sex spaces if that exclusion is a proportionate means to a legitimate aim, which creates a high threshold for anyone wishing to make such an exclusion to meet. Additionally, such situations must be judged on a case-by-case basis.
Excepting transgender men, who are not seen as men by anti-trans activists, even after some choose to have phalloplasty and therefore, have a penis, and/or hold male birth certificates.
Case laws
Bell v Tavistock NHS Trust (2020) EWHC 3274 (Admin); [2021] EWCA Civ 1363.
Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112.
Goodwin and I v United Kingdom, (2002) European Court of Human Rights, Application no. 28957/95.
Legislations
Equality Act 2010
Gender Recognition Act 2004
Gender Recognition Reform (Scotland) Bill 2022
Local Government Act 1986
Local Government Act 1988
Marriage (Same Sex Couples) Act 2013
Marriage and Civil Partnership (Scotland) Act 2014
Scotland Act 1998
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
Acknowledgements
The author thanks Jodi Golden for her input on previous versions of this article, and for the initial conversations which inspired it. The author also thanks the two anonymous reviewers for their comments, which strengthened the article greatly.
Conflict of interest
The author declares that there is no conflict of interest.
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