Transgender Issues and the Law in 2023

Introduction

1. At the Conservative Party’s 2023 autumn conference, gender was a hot topic. Among other things, Government ministers announced proposals to change the NHS constitution to “protect the rights of women” and suggested that “biological men” should not share hospital wards with “biological women”. Some transgender rights organisations have accused the Government of igniting a “culture war”. i Such fraught political debates are likely to feature in this year’s General Election campaign as well.

2. Recent years have seen many cases of note in this area. These include, at the appellate level, Bell v Tavistock [2021] EWCA Civ 1363; [2022] 1 All ER 416, a decision concerning the competence of young people diagnosed with gender dysphoria to consent to “puberty blockers”, and R (ota Elan-Cane) v SSHD [2021] UKSC 56; [2023] AC 559, an unsuccessful judicial review of the unavailability of “X” markers on UK passports for people who identify as non-gendered or non-binary. I acted as counsel for an intervener in both cases.

3. 2023 was also a busy year for jurisprudence on transgender issues. In particular, the Scottish courts have handed down some noteworthy decisions, discussed in Sections A and B of this article. Section C summarises various cases which, following on from the Forstater decision in 2021, concern the “often vociferously conducted debate, regarding the respective balance between gender self-identification and gender critical views.”ii Finally, Section C discusses the Higher Education (Freedom of Speech) Act 2023, the background to which is “alleged curtailing of freedom of speech” in universities,iii including allegations in the press that some academics have been “no-platformed” due to their opinions on sex and gender.

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