This is one in a series of profiles of 2023 Cravath International Fellows.
Janna Adelstein ’24, a 2023 Cravath International Fellow, traveled to the United Kingdom to conduct research on how equality law doctrines affect transgender people — and more specifically, whether there is any basis for the claim, advanced by trans-exclusionary ideologists, that the recognition of gender-based rights for trans people takes rights away from non-trans women and prevents them from gaining greater equality. One argument for this claim holds that giving rights to trans people extinguishes the formal or legal categories of “men” and “women” and in so doing, takes away the agency that women have in distinguishing themselves from men and the hard-won rights that feminists have fought for. An opposing argument holds that trans women identify as women and including them in that category expands the number of allies that women have in their fight for equality.
Through her work at the Brennan Center for Justice before law school, and through internships, clinics, student practice organizations and journals at HLS, Adelstein has addressed gender equity, LGBTQ+ rights, and many other civil and human rights issues, and her goal is to practice as a civil rights litigator focusing on gender issues and criminal law. In a class on Transgender Law and Policy with Visiting Professor Catharine A. MacKinnon, Adelstein learned that trans-exclusionary ideology had its origins in the U.S. in the 1970s , then “really gained a foothold in the UK” before becoming prominent in the U.S. again in the 2010s, as trans people became more vocal here. During winter term, she undertook a comparative analysis of the ideology and its impact in the UK and the U.S. She observes that in the UK, the discourse has been largely academic, but extends into public awareness through politicians, while in the U.S., anti-trans rhetoric is found largely on social media.
By working in the UK, Adelstein was able to conduct extensive research in the country’s national archives, which includes materials, often only available on UK servers, ranging from court cases and government documents to academic papers from UK universities. She focused, in part, on analyzing United Kingdom jurisprudence relating to sex equality, how it relates to transgender people and their rights, and the impact it has had on public discourse. She identified several landmark cases, beginning with Corbett v. Corbett, a 1970s divorce proceeding in which the court held that the plaintiff, a transgender woman, was legally male. This case, Adelstein explains, created precedent that made it “essentially impossible for decades for trans people to change their legal gender marker to that which matched their gender identity.” She also studied a 2002 decision by the European Court of Human Rights, which overturned Corbett, and the enactment of the UK’s Gender Recognition Law in 2004, allowing legal recognition of a person’s acquired gender. Recent discussions about amending that law, she discovered, “sparked vitriol towards trans people” from academics and other public figures, such as journalists, authors, and politicians, and led to the “slow migration” of these ideas to the U.S., both on social media and through NGOs which have lobbied or undertaken cases against the expansion of rights for trans people.
She augmented her review of documents by conducting several interviews. For example, she met with a member of the House of Commons who has lobbied for the inclusion of trans people in a proposed nationwide ban on LGBTQ+ conversion therapy. He identified other recent efforts in Parliament to pass anti-trans legislation, and countered with examples of successful trans rights initiatives in other countries. Adelstein also interviewed prominent trans activists in Wales and London. Her meetings with the activists, she adds, gave her a sense of what it is like to be a trans person under the current legal regime in the United Kingdom, an experience that “served as a much-needed and appreciated reminder that the legal issues I have been working on affect real people and should be dealt with with care, dignity and respect.”
Her conclusion is that as trans people have gained rights, there has been no substantive difference in the rights that non-trans women have. The trans-exclusionary rhetoric, “often given without reasons or data,” is, she argues, “more a political tool to advance other agendas.”
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