This article is taken from the June 2026 issue of The Critic. To get the full magazine why not subscribe? Find our subscription offers here.
Michael Foran has already made his mark. In December 2022, Nicola Sturgeon’s SNP government was forcing its unloved Gender Recognition Reform Bill through the Scottish Parliament. The GRR Bill, once passed, would allow people in Scotland to change their sex essentially by self-declaration, a process known as self-ID.
The SNP seemed oblivious to the safeguarding issues raised by self-ID, and looked certain to get their way. Whilst the argument raged in Holyrood, the UK Constitutional Law Association published an essay, “Sex, Gender, and the Scotland Act”, by a youthful-looking Dr Foran (pictured sporting a fetching pink t-shirt). At the time he was a lecturer in Public Law at Glasgow University.
Foran thought the GRR Bill, if passed, would “destabilise existing categories and frameworks for the purposes of the reserved matter of equal opportunities”. Reserved powers are those retained by the UK government, rather than those devolved to Scotland.
Foran wondered if the GRR might require the Westminster-based secretary of state for Scotland “to issue a Section 35 order prohibiting the presiding officer from submitting the bill for Royal Assent”, on the basis that the Scottish government was overreaching itself. No such order had been made before.
In the 2024 book The Women Who Wouldn’t Wheesht, anti-GRR campaigner Lucy Hunter Blackburn recalls being sent “a blog … published by someone we’ve never heard of” describing “part of the Scotland Act none of us recognise”. Blackburn deemed it important enough to share with anti-GRR MSPs. Foran’s analysis lit a flame, and the fire quickly reached Westminster. Within a month the Scottish Secretary had vetoed the GRR Bill. It never became law.
By 2024 Foran’s elegant Substack essays were doing good business on social media. I called him up to tell him how much I admired his work. Foran was gracious and friendly. Beneath the academic detachment of his writing was a gender-non conforming gay lad from Dublin with an intellectual bee in his bonnet about the way public institutions and lobby groups had misrepresented Equality Law.
Whilst Sex, Gender Identity and The Law was in the works, Foran’s star continued to rise. He is now an associate professor of Law at Oxford and a regular fixture on various legal podcasts and panels. His new book will undoubtedly be celebrated, but is it essential?
Well, it depends. If you are a lawyer, legislator, journalist or have an interest in the gender forever wars, the answer is a resounding yes. Foran is a fine writer. He has the gift of being able to string knotty conceptual arguments together in a way which makes them accessible and (relatively) easy to understand.
In “Part 1: How Sex Changed”, he painstakingly explains the law on sex and gender whilst highlighting just how far public policy and its implementation has departed from its core tenets. Foran despairs that far too many people “have been under the false impression that the legal default is that trans people are entitled by virtue of the protected characteristic of gender reassignment to be treated as if they were members of their target sex”. This was “never” an accurate reflection of the law.
Biological sex, we learn, is defined by a series of legal tests. Those tests have evolved to consider both transsexuals (the legal term) and people with DSDs — differences of sexual development. The tests are pragmatic, and without giving too much away, focus on chromosomes, gonads, internal and external genitalia. As a matter of pure logic it is impossible to change what we understand to be biological sex, and Foran methodically lays out how, in this country at least, judges have generally been persuaded by logic.
Gender identity presents more of a moving target. It is a newer and looser concept, drawn from the psychological and social engagement we have with our cultural understanding of “masculine” and “feminine” stereotypes. Foran explores how the law has attempted to engage with “gender identity belief” (the idea that gender identity “trumps” biology as a determinant of sex) and “gender recognition rights” (the latest manifestation of which arose from a case known as Goodwin and begat the 2004 Gender Recognition Act).
He carefully explains the legal differences between those with DSDs, transgender identities and the legally protected characteristic of gender reassignment.
Perhaps unsurprisingly, last year’s Supreme Court ruling in For Women Scotland looms large throughout the book. Part 1 ends with a 40-page treatise on the court’s reasoning, which held that the words “woman” and “man”, when written in law, respectively refer to an adult female and an adult male. Foran carefully sets out the ruling’s logic and implications, and it is clear he regards it with something approaching reverence.
The book’s second half is titled “Controversies”. We get a legal perspective on pronouns, freedom of speech, compelled speech, sex by deception, sport and single-sex spaces through the lens of the Supreme Court ruling and case law, or the lack of it. Foran’s determination to be comprehensive can be a little wearing, and at times this section feels closer to a legal reference work than perhaps was intended.
The chapter on single-sex spaces is the hardest going. Foran ultimately concludes (I think) that making services and spaces trans-inclusive almost certainly discriminates against women, but failing to make provision for trans people with the protected characteristic of gender reassignment is also potentially discriminatory, depending on the service and/or space.
Much easier is Foran’s gallop through the lunacy of cancellation culture. We read about the successful court cases brought against dim employers who let their staff discriminate against colleagues with gender-critical views.
Foran also highlights the weaponisation of the police and the criminal justice system by transgender activists who have exploited institutional ignorance of the law to get their online opponents silenced and even prosecuted.
Stupidity in this field is a recurring factor. Foran drily discusses a Merseyside Police campaign in 2021 which told the public “being offensive is an offence”. When this was queried, the force quickly put out a communication making clear that “being offensive is not in itself an offence”.
Another success is Foran’s analysis of the pronoun problem, especially when it arises in the workplace, or, inevitably, court. I am now a convert to Speech Act Theory, and next time someone suggests using preferred pronouns is nothing more than simple courtesy, I will tell them that to the contrary, “the use of gender-identity-based pronouns can have the illocutionary force of accepting or validating a given identity and can produce the perlocutionary effect of altering the applicability of social norms which differentiate between men and women”. So stick that in your pipe, etc.
Foran is at his best when he presents the law as a benign, occasionally misfiring, multidimensional machine plugged into the glowing power lines which connect us to each other and the state. His desire to show us how every part of that machine functions is the book’s blessing and its curse. Nonetheless, it is an illuminating and, yes, essential work.
