Former First Minister of Scotland, Nicola Sturgeon, experienced a lot of resistance in and outside her party (SNP) to the transgender self-ID law she promoted while in office. When her government passed the Gender Recognition Reform (Scotland) Bill in December 2022, the government in Downing Street blocked it from getting Royal Assent in January 2023. This may have played a part in her stepping down as First Minister in February 2023. More recently, Sturgeon used the f-word in an interview: ‘I think what I would say now is that anybody who commits the most heinous male crime against women probably forfeits the right to be the gender of their choice.’ When the interviewer pressed her on this, Sturgeon said that it ‘probably was not the best phrase to use’, perhaps to cancel any suggestion that a transgender individual’s “gender” is a mere matter of “choice”.
But Sturgeon’s choice to use the word “forfeit” was also interesting. The term ‘forfeiture’ is a legal term and some reflection on it might be useful. Sturgeon, having studied law at the University of Glasgow, is familiar with the term – and arguably had the right insight. Let me explain why I agree with her. Just like Sturgeon, I have been thinking and speaking about forfeiture recently. If we decide to curb rights, which people normally possess, we need a justification. Forfeiture is one such justification.
The idea behind forfeiture is that if your behaviour falls below a certain standard you can lose a right, which you normally possess, involuntarily. Forfeiture is a loss of rights due to wrong-doing. John Locke provides an early discussion of it in his Second Treatise of Government (1690), where—among other examples—he mentions the case of slaves, who forfeit their lives and liberties by having been taken captive in a just war. On a more contemporary understanding, forfeiture can occur if one’s behaviour falls below a certain standard of ‘proper behaviour’. We are not talking about tactless behaviour in a social situation but rather serious wrong-doing, usually crime.
As the American legal scholar Joel Feinberg writes: ‘A forfeitable right, therefore, cannot be an absolute one in our original sense, for it is not possessed unconditionally in all circumstances. Rather it is a right that one must qualify for by meeting certain conditions of proper conduct. As soon as one’s conduct falls below the qualifying standards one loses the right, whether one likes it or not’ (1978).
The notion of forfeiture has been known to us since ancient times. Traders who roamed from one territory to another needed some form of guarantee that the other side would keep their end of the bargain. In the Hellenic and Roman periods, you would require a pledge – usually a ring (‘arrabo’ or ‘arra’) or money – to provide some security for the seller. Indeed, the engagement ring may be a remnant of this practice. Any breach of agreement would lead to forfeiture of the pledge.
English law was influenced by Roman law: ‘[F]orfeiture procedures had their origins in Roman law, which was received into English law when England became a Roman province after the invasion of Britain by Julius Caesar in AD 43. Goods that were confiscated as punishment for capital crimes were dedicated to the gods and then destroyed. Forfeiture actions like these were established practice during the imperial period, when the confiscated goods were first delegated to the temple and then forfeited to the state treasury’ (Fourier and Pienaar 2017). Modern legal systems still make provision for forfeiture in contract law. If a prospective house buyer in England fails to complete the purchase, then they may lose their deposit via forfeiture. In the context of crime, the offender loses the right not to be punished. That is, they lose an immunity from punishment which we all possess. The state may not punish citizens on a whim.
The problem for forfeiture theory in the context of crime is that it is not always clear how wrong-doing, which is specific, relates to punishment, usually incarceration, which is rather general. This is called ‘the problem of specification’ (Lippke 2001). It would make more sense to argue that a criminal forfeits a particular right that they have violated. This probably explains the attraction of retributive theories of punishment which favour the lex talionis: an eye for an eye, a tooth for a tooth. But such retributive theories raise well-known problems: for instance, of moral harm to the punisher, especially if the punishment must exactly match the crime (consider cases of sexual assault). They also make the danger of punishing the innocent especially acute – let’s not forget that we do get it wrong sometimes.
If we are dealing with an offender who is a danger to the public, then locking them up makes sense. But it is difficult to understand why an accountant who embezzled money from his clients forfeits the (very general) right to liberty. Other problems in this context concern ‘the duration and breadth of forfeiture. As to the former, for how long do offenders forfeit whatever rights they have violated by their crimes? (…) The problem of breadth arises because many crimes violate others’ rights in fairly discrete and limited ways’ (Lippke 2001).
In some jurisdictions, being sentenced leads to further rights forfeiture. The ‘primary forfeiture’ for a criminal is the loss of immunity from punishment. Additional (‘secondary’) forfeiture of rights may apply during incarceration as well as after release. In the US states of Iowa and Kentucky felons are barred from voting for the rest of their lives (i.e. the duration problem). In other states they may regain their right to vote, either immediately or after a suitable waiting period (in Florida they have to wait seven years). This means that crime often leads to a double exclusion (i.e. primary and secondary forfeiture): in the first instance via incarceration (exclusion from social life), and in the second via denial of certain civic rights (voting, running for public office), an exclusion from political life. In the UK, for example, ‘a sentence over 12 months in jail automatically disqualifies someone from being an MP’.
‘Secondary forfeiture’ might be problematic because it looks like people are being punished twice. Isn’t the sentence (e.g. the loss of liberty via incarceration) enough? The problem of specificity also reoccurs. Why should voting rights be withheld during incarceration, or even after a sentence has been served. How does it relate to our greedy accountant or to many other crimes? Things are different when we are dealing with politicians. Protecting political office from people who have committed serious crimes seems a sensible policy. We do not want corrupt politicians because they are supposed to act as guardians of the legal system: they amend existing law or make new law. Note that this addresses the specificity problem.
Sometimes secondary forfeiture makes sense, and, Nicola Sturgeon has now realised, it plausibly does so in cases of transgender offenders convicted of sexual assault. The double rapist Isla Bryson started to identify as a woman while waiting to stand trial in Scotland. After conviction, Bryson was initially housed in a female prison, where he posed a danger to female prisoners: Ministry of Justice data from 2020 show that ‘76 of the 129 male-born prisoners identifying as transgender (not counting any with GRCs [Gender Recognition Certificates]) have at least 1 conviction of sexual offence. This includes 36 convictions for rape and 10 for attempted rape’.
Keeping in mind that many legal systems now have legislation which enables some individuals to be treated for various legal purposes as members of the opposite sex, it is unlikely that these laws will all be rolled back, at least any time soon. In particular, the high-profile but somewhat anomalous case of the United States notwithstanding, it is highly unlikely that the United Kingdom, Germany or Spain will repeal their transgender laws. Secondary forfeiture would be one way to solve many of the ensuing problems.
Justice requires that we protect female prisoners from assault by trans-identified males while serving their sentence. Justice also requires that sex offenders and men with convictions for violence against women forfeit the right to legally be treated as women. It would be a travesty of justice if they could legally join the sisterhood.
In the transgender context, a sensible policy of secondary forfeiture – and one that solves the specificity problem – would look as follows:
- Any male convicted of sexual crimes and/or violence against girls or women forfeits the legal right to be treated as a woman.
- Any male awaiting trial for sexual crimes and/or violence against women may not exercise the legal right to be treated as a woman during this time.
- Anyone who has previously exercised a right to be treated as the opposite sex loses any prerogatives granted on this basis once they are convicted of sexual crimes and/or violence against women.
- In legal systems that permit housing trans-identified males in the female prison estate, anyone convicted of sexual crimes and/or violence against women may be barred from women’s prisons.
- Female victims of sexual assault or violence should not be obliged to use female pronouns for their attacker during trial.
Strictly speaking, this final condition is neither primary forfeiture nor secondary forfeiture, because the accused has not been convicted yet – and may even be found ‘not guilty’. Nevertheless, I believe it to be justified. The harm of misgendering seems slight in comparison to having to refer to your attacker as ‘she’. There may be other policies that we should adopt, but these make a good start.
Miroslav Imbrišević is a lecturer in political philosophy at Allen Hall/London. He also teaches at Open University.
