This November we globally celebrated the 23rd annual Transgender Awareness Week; giving a platform to trans voices and remembering those we have lost in the past year. However, this year’s celebrations were clouded by fear and uncertainty throughout the community and its allies as we witness the inflation of anti-transgender legislation sweeping across an increasingly transphobic climate.
The Anti-Trans Rhetoric
Throughout 2022 we have been bombarded with a growing anti-trans rhetoric on our screens, in papers, and even in everyday conversations. From JK Rowling to Kathleen Stock, critical attacks on both transgender individuals and the identity itself have rampantly flooded timelines and newsfeeds; suddenly making it feel as though a war has been waged against an unwitting minority.
During the various prime ministerial elections we have had to endure this year, we have seen this attack set in motion repeatedly. Penny Mordaunt infamously U-turned on her previous pro-trans views in favour of tweeting out that trans women might be legally female by law but, “that DOES NOT mean they are biological women, like me.” Furthermore, Liz Truss made headlines with her vocal opposition to easing the process for trans people to change their gender markers in England and Wales.
Most poignantly, our current Prime Minister Rishi Sunak has vowed to, “review the Equality Act to make it clear that sex means biological sex rather than gender,” therefore removing the legal standing of self-identification for trans people. This is yet another back-track from the Conservative government who once pledged under Theresa May to move towards a wider system of self-identification, which would have allowed trans people to obtain a gender recognition certificate without undergoing invasive medical evaluation.
In the US
The rate at which anti-trans legislation has been introduced in governments across the West is staggering, with the Human Rights Campaign declaring this year is on a fast track to see more legislation restricting trans rights than any prior year. In the US alone, anti-trans legislation introduced in state houses increased from 19 bills in 2018 to a confounding 155 bills in 2022 - with transgender youths being the prominent target.
The legislation largely seeks to restrict LGBTQ+ education and participation within schools; preventing trans-youths from joining sports teams or using bathrooms that reflect their gender identity. Furthermore, restrictions on access to gender-affirming medical treatments have taken centre stage in the intolerable rhetoric.
Alabama has been at the forefront having passed the largest anti-transgender legislative package in history – The Alabama Vulnerable Child Compassion and Protection Act. The act prohibits the medical transition of any youth under 19 years of age and makes it a felony for doctors to perform surgery or prescribe treatment with the threat of a maximum 10-year prison sentence. Similarly in Texas, Gov. Greg Abbott (R) initiated an order requiring child welfare agents to investigate gender-affirming treatment as child abuse – threatening to remove transgender children from their families if found liable.
"The rate at which anti-trans legislation has been introduced in governments across the West is staggering."
This legislation has put the transgender community on edge with trans-activist Alyssa McKenzie conveying, “I don’t know how to describe to somebody that isn’t going through it how it feels to have the anxiety of waking up every morning, not knowing whether your state is going to attack your right to exist.” Nevertheless, this influx of anti-transgender legislation has not come as a shock, with Kate Oakley of the Human Rights Campaign illustrating how “this is something that has been building over the course of the last three years.”
Bell v Tavistock
In 2020, Bell v Tavistock spread a new wave of anxiety across the trans community – fundamentally altering and isolating the provision of trans health care in the UK. The claimant, Quincy Bell, brought forward the case that children and young persons under 18 are not competent to give consent to the administration of puberty-blocking treatments – one of the first steps of medical intervention during a young person’s transition. As such, the court was faced with the question of whether informed consent in the legal sense can be given by such children and young persons.
The lawyer representing the claimants said the lawsuit would be "pressing the case of Gillick to its breaking point" and this was in fact the case with the Divisional Court disregarding the Gillick Test for competency in its entirely. Instead, the Court took it upon itself to rule that it was unlikely a young person under the age of 16 would “understand and weigh the long-term risks and consequences of the administration of puberty blockers.” As a result, the High Court’s decision barred trans youths under the age of 16 from accessing life-saving medical treatment on the NHS unless they had a court order.
It comes as no surprise therefore that Bell v Tavistock was one of the substantial catalysts in launching the anti-trans rhetoric that is suffocating us today. This ruling stripped trans-youths of their autonomy, leaving their power to consent in the hands of the court, and tarnishing the name of the only gender dysphoria unit for children in England. By demanding a court order before progressing with treatment, yet another barrier was imposed on the already strenuous obstacle course that is the pathway to treatment.
In 2021, the Court of Appeal overturned the 2020 judgement through the reinstatement of the Gillick test asserting, “The case of Gillick v. West Norfolk and Wisbech Health Authority had decided that it was for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment.” Moreover, the Court of Appeal ruled that the High Court should not have issued guidance on the Gillick test and puberty blockers, because that court should have dismissed the case when it ruled that the Tavistock guidance and practices were lawful.
Regardless, no change has been made apparent a year since the appeal and so the oppressive restrictions enacted by the initial ruling are still standing. The NHS has been urged by activists and charities such as Mermaids to, “reverse its position as a priority and with urgency to ensure access to healthcare is reinstated for those that have been left stranded for so long.” For too long trans-youths have been suspended in an uncertain limbo with no guidance or reassurance of when they will be free to take the next step in their transition. The impact of Bell v Tavistock is incomprehensibly damaging especially when considering the system has been failing the transgender population for decades.
Conclusion
To surmise, statutory influences have been weaponised to attack the most basic freedoms enjoyed by transgender individuals. From the US to the UK, children can no longer go to the bathroom or play on the team that makes them feel most comfortable without igniting a constitutional crisis; identities cannot be celebrated without fear of violence as seen in Colorado, and above all else, the systems established to protect against discrimination, to promote diversity and inclusion and to guarantee equality - are now being utilised as the oppressors.
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