Some quick thoughts on Ewan Forbes Sempill and issues in Scots law

I posted a series of queries about the work by Prof Zoe Playdon relating to the Ewan Forbes Sempill case. Prof Playdon has chosen to write on a Scottish legal case but regrettably lacks familiarity with Scots law (and certain aspects of English law) and it appears that a central argument within the book does not sit with the underlying Scots law, and some assertions about the potential impact of the Forbes Sempill case seem flawed. I have been asked some questions about Scots law issues and the book and I thought it was worth putting the material in one post.

The Scottish law applicable at the time Forbes Sempill changed his birth certificate was the Registration of Births, Deaths and Marriages (Scotland) Act, 1854. IN section 63 of that Act it was provided that a birth certificate could be corrected if the certificate contained incorrect information at the time of registration. Section 64 of the Act allowed a correction to be made before the register was signed by the registrar. But if the register was signed you had to apply to the sheriff (the regional judge) and a correction could be issued if the register was shown to be incorrect at the time of the original entry. This procedure was discussed in one case which was published in the Scottish law reports in 1957 (1957 SLT (Sh ct) 61). This case was called X petitioner, and involved an individual who was born male and registered in the birth certificate as male but had started to live as a woman. The sheriff noted that the medical evidence did not indicate there was an original error in the register and described (in 1957) X as a transsexual rather than a (what the sheriff referred to as a) hermaphrodite, but what today would be referred to as intersex. The sheriff said a transsexual could not have the birth certificate changed as the certificate was originally accurate and recorded information at the time, and was not an ongoing regularly updated record through the life of the person.

The Scots law then was clear in the legislation and in case law on that legislation that a birth certificate could only be corrected if it was in error at the time of registration. This point is noted by Professor Hutton in his book The Tyranny of Ordinary Meaning (2019) on Corbett v Corbett at p 72 (a book that Prof PLaydon referred to in her public statement in response to queries from The Times).

Part of Prof Playdon’s argument is that the idea of transsexualism did not emerge until the late 60s/early 70s and that until then transsexualism was classified as hermaphroditism (or intersex). If this is accurate then I am curious where the sheriff in 1957 picked up the expression, and how the sheriff came to distinguish the two.

At the time of the X case Forbes Sempill had already corrected his birth certificate in 1952. This was because a sheriff was satisfied that Forbes Sempill had an intersex condition, and had been wrongly registered as female at birth. The approach of the sheriff in 1952 was endorsed by Lord Hunter in the case which is the subject of Prof PLaydon’s book.

Prof PLaydon dismisses the X case but the decision in Forbes Sempill in 1952 and in the later case before Lord Hunter is compatible with X and is an application of the Scots law at the time. The court decided based on medical evidence that Forbes Sempill was a hermaphrodite (intersex today) and consequently the register was inaccurate the time of birth. If evidence indicated that Forbes Sempill had been treated by the court as transsexual (female at birth and living as a man in 1952) the register could not be corrected. And if Prof Playdon is arguing that the medical evidence was falsely presenting that Forbes Sempill was intersex this at the time would have been a criminal offence as s 62 of the 1854 Act provided that giving information leading to a false entry in the register was an offence (originally in 1854 punished with transportation!).

Prof Playdon’s argument suggests that a trans person could have their birth certificate changed as of right. This is, I hope is clear from the above,, not true. Any application to correct the register required judicial approval and required evidence that the birth certificate was incorrect at the time of the original registration.

Prof Playdon argues that three pieces of medical evidence were required in Scotland. I had not heard of such a requirement for three pieces of evidence in Scotland. I have been through the book on the Scottish law of evidence from 1964, Walker and Walker, The law of evidence in Scotland. There is no indication of this approach. The general rule for Scotland at the time was that corroboration was required (evidence from two sources). Prof Playdon therefore seems to get another basic issue of Scots law wrong.

IN her book Prof PLaydon discusses the case as one which was kept secret, hidden from the public, and its being hidden had an impact on legal development. Barbara Rich has shown on twitter that there are contemporaneous newspaper reports. I note that in technical legal material the case was subject to a lengthy Scottish legal article in 1998 (Angus Campbell, “SUccessful sex in succession: sex in dispute — the Forbes Sempill case and possible implications” 1998 Juridical Review 257 and 325). It was subject to another Scottish legal article in 2007 (Lesley Anne BArnes, “Gender Identity and Scottish Law: the Legal Response to Transsexuality” (2007) 11 Edinburgh Law Review 162). It is fair to say in the first Scottish article I am aware of on trans issues Joseph M. Thomson, TRanssexualism: a legal perspective 1980 6 Journal of Medical Ethics 92 there is no reference to Forbes Sempill. In her PhD thesis “A critique of the legal recognition of transsexuals in UK law” (Glasgow University 2016) Dr Carolynn Gray (rightly) argues the case ”merely confirmed the position taken in X, Petitioner in 1957 that only errors of registration could be corrected.” The case appears in an introductory student textbook published in 2001, targeted at first year Scottish law students (100 cases every Scottish law student should know). If the case was hidden until this new book it was hiding in plain sight.

The case used a procedure akin to arbitration (but using an Outer House judge — that is the equivalent of a High Court judge in England) introduced in the Administration of Justice (scotland) Act 1933, s 10. This procedure was known as a summary trial and did not involve the usual form of a Court of session case in Scotland. Section 10 allowed the parties to choose a judge and get a swift decision on a matter. IT was almost like an arbitration process, and the parties chose the judge, and the issues to be considered. These could be issues of fact or of law. All parties to the case had to agree to the procedure. The procedure was chosen because it was quick, and could also be chosen because it was private (the Stair Memorial Encyclopaedia on the law of Scotland in its discussion of summary trials talks about privacy as a factor in a decision to use it). Cases argued using the procedure did not need to be argued in open court. A leading textbook on Court of Session (the Scottish civil court) procedure and practice, Maxwell on Court of Session Practice, at chapter 11, discusses summary trials and notes that hearings need not be in open court (and gives as an example cases heard in the judge’s chambers). Prof PLaydon argues that the way in which the case was heard was unusual and showed secrecy and implied an establishment cover up. That the case did not need to be in open court is characteristic of the process. The procedure also came with restrictions. There could be no appeal. And the case could not hear a question of “status”. It was argued that the Forbes Sempill case arguably touched on a question of status but this was rejected by Lord Hunter. Prof PLaydon refers to a contemporary newspaper comment on the use of the process.

I have searched for reported s 10 cases and Prof PLaydon would be right if she suggested that not all s 10 cases are kept private. Some are reported in the law reports at the time of their decision (which the Forbes Sempill case was not) and I have found cases on insurance, leases, and succession. As far as I can tell from the case reports though (and my search has not been exhaustive) the cases reported are those where the issue in the case is a question of law, not one of fact, and are cases where the case was argued in open court.

IN my questions to Prof Playdon I suggested that it would be fruitful to consider other records for s 10 cases, and to identify if records being kept private was unusual for that type of case. She may be right on this, but I think the assertion needs support and additional considerations as to why the case was kept private could be taken into account.

Given privacy was inherent in the case and the cases involved consideration of factual questions about the physical characteristics or Forbes Sempill and the sexual relationship of Forbes Sempill and his wife I think a suggestion that the intrusive personal nature of the case (given that a procedure with inherent privacy was chosen) would be a more likely explanation for the case being kept private than the idea of an establishment cover up because of a threat to the succession to the crown.

Prof Playdon also suggested that the case would have been authoritative and was a higher authority than the Corbett case which deal with a trans woman marrying in England a few years after the Forbes Sempill summary trial. This is nonsense I am afraid. Scottish cases do not bind English courts. This particular case involving Forbes Sempill was a first instance decision (so did not involve an appeal, and under the s 10 procedure could not involve an appeal). A first instance decision in Scotland is of no particular precedential weight in England. And indeed the X, petitioner case would have been as authoritative a case. Indeed, in his book on Corbett v Corbett Prof Hutton notes that the X case from 1957 anticipates the decision in Corbett in England. It appears then that X, Forbes Sempill, and Corbett are compatible and consistent.

I think the errors in relation to scots law, and procedure, as well as a fundamental error on the issue of precedential weight go to a central argument in the book, and think it would have been useful if the publisher had had the material reviewed by a Scottish qualified lawyer and had these errors and problems corrected or addressed. They undermine an interesting social history.

Postscript: I make one other observation. Prof PLaydon in her book appears to allege that Forbes Sempill falsely provided testicular tissue in support of his case. If, as Playdon argues, the correction of a birth certificate was of right for a trans person why was falsely providing male tissue to support a legal argument that Forbes Sempill was intersex necessary? If false evidence was provided that indicates merely that the analysis in X, petitioner regarding the correction of the birth certificate only being permitted if the certificate did not reflect the position at the time of registration, was correct. Her own assertion about these actions of Forbes Sempill makes her central argument, about the import of the case weaker. It is perhaps surprising that this point does not seem to have attracted comment by any reviewer.